Jerusalem, Israel & SCOTUS, 2015. @richardaepstein, @hooverinst
Jerusalem, Israel & SCOTUS, 2015. @richardaepstein, @hooverinst.

"...In a sharp split of opinion, Justice Kennedy, joined by the four liberal justices (Ginsburg. Breyer, Kagan, and Sotomayor) plus Justice Thomas, (writing for himself) held that Congress could not require the President, through the State Department, to add “Israel” at the Zivotofsky’s request. The remaining three conservative justices (Roberts, Scalia, and Alito) all thought that this decision ultimately fell to Congress.

"This case raises some interesting questions. First, why all of the fuss over a single word, “Israel,” being added to someone’s passport? Second, why did most of the conservative justices defer to Congress on this decision, rather than delegate the power to the president? Conservatives, after all, tend to favor broad presidential powers in foreign affairs.

"The historical story starts in 1948 when President Harry Truman first provisionally recognized Israel as a separate sovereign nation. In January 1949, the White House recognized Israel on a de jure basis. On both occasions, Truman refused to recognize Jerusalem as Israel’s capital. Instead, he insisted that “the status of Jerusalem . . . should be decided not unilaterally but in consultation with all concerned.”

"It is inconceivable that any voluntary settlement of the Israeli/Palestinian conflict would require that the Israelis cede Jerusalem to the Palestinians. Similarly, if a settlement were reached, it is inconceivable that the Israelis would be precluded from setting up their capital in that part of Jerusalem that has remained under its control. Be that as it may, Truman’s decision has been the unbroken executive branch position on the topic, through Republican and Democratic administrations alike. At no point did Congress take any formal role in the recognition process...."
 
https://www.hoover.org/research/battle-over-jerusalem
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