Studying American-Arab Relationships From Unexpected Angles. This Time It Is the American Supreme Court on Jerusalem

America is complex.  Because it speaks with thousands of voices.  Voices that come from myriad of sources.  Not necessarily from the Oval office or the Pentagon or the State Department.  Voices also from the American street.

Because I live and work in America, I study American-Arab relationships.  Especially those with one-third of the Arab world which call themselves Egypt.  One or two hours a day of such study are enough.  I have other things to do.

Consequently, I was struck by a most important piece of news on June 9.  The thundering voice of the U.S. Supreme Court on the explosive question of Jerusalem.  I am a member of the Bar of that august Court.  But was unaware of the case against Secretary of State John Kerry which reached the Court through an appeal by Mr. and Mrs. Zivotofsky on behalf of their son Menachem.

These are American Israeli citizens, who wanted the U.S. passport of their son, who was born 13 years ago in Jerusalem, to reflect Menachem's place of birth.  They wanted that passport notation to say "Place of Birth: Israel."  And the American Supreme Court, by a majority of 6 to 3, said "No."  Answering why, is the heart of this blog posting.  It also reveals the importance of systematic study of American-Arab relationships, especially from unexpected angles.  For the sake of knowledge.  And knowledge is power.

The case Zivotofsky v. Kerry is all about the power of the U.S. President, under the Constitution, to recognize foreign governments.  In defiance of that presidential power, Congress in 2003 had adopted a politically-based law.

That law instructed the State Department to "record the place of birth as Israel" in the passports of American children born in Jerusalem.  Of course providing that their parents requested that designation.  That is in spite the fact that since Ben Gurion declared Israel a State in 1948, no American president has ever issued a declaration acknowledging any country's sovereignty over Jerusalem.

This is evidenced by the fact that the U.S. embassy for Israel is still located in Tel Aviv, not in Jerusalem.  That was the principal argument before the Supreme Court by the U.S. Solicitor General, Donald Verrilli, in the case of Zivotofsky v. Kerry.

The Solicitor General characterized the neutrality of the U.S. Government in regard to the status of Jerusalem as "prudent."  Why?  Because the issue has been "the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades."

For listing "Israel" as the place of a birth which happened in Jerusalem would have negative effects for the system of governance in the U.S.  The most important would be subjecting the Presidential powers of foreign States recognition to a Congressional act violative of those powers.

This is the heart of the U.S. Constitutional system -separation of powers.  The status of Jerusalem and the U.S. recognition of Israel as a State are two separate issues in which the powers of the President are supreme.  Recognition of the State of Israel is an active application of presidential power.  Recognition of Jerusalem as "Israel" is a negative application of that power.

For that reason, U.S. neutrality toward the status of Jerusalem has nothing to do with America's strategic relationships with the State of Israel.  A unique distinction which the Arabs, especially in Ramallah, should comprehend.  Mixing between these issues is like mixing palm dates with desert pebbles.

Looking at the arguments of the Supreme Court's majority of 6 to 3 is immensely instructive for issue-spotting and issue-analysis.

• The Court is divided between liberals and conservatives.  The liberal wing consists of Justices Breyer, Ginsburg, Sotomayor, and Kegan (the last three are women).  In this judgment, that liberal wing was joined by Justice Kennedy (known as the swing vote; he wrote the opinion).  Unexpectedly, those 5 votes were joined by Justice Thomas, a die-hard conservative.  The dissenting justices were Roberts, the Chief Justice, Scalia and Alito.  
• In support of dismissing the Zivotofsky's claim, the six justices affirmed that "the power of recognition" rested exclusively with the President.  It cited Article II of the Constitution, case precedents, and historical practice "from the first administration (of George Washington) going forward."
• That was not all.  The Court also struck down the provocative law of 2003.  By doing so, the Supreme Court stressed another related principle that had to do with the unity of "the American Nation."  It said that:

(i) the president has "the exclusive power to recognize foreign nations and governments;"

(ii) the President alone could "receive ambassadors," an indication of recognition of the sovereignty of the sending State; and

(iii) only the President could have "the characteristic of unity at all times" as it was "necessary for the Nation to speak with one voice with respect to recognition."

That is the beauty of the separation of powers.  It should also be noted that the judicial power in the Zivotofsky decision did accomplish a historic task: shredding the Foreign Relations Authorization Act (FRAA).  Here the Court, while not in any way deciding the future status of Jerusalem or the territorial outcome of the Arab-Israeli conflict, blocked the back door for a creeping recognition that Israel and Jerusalem were one single issue.

There is a plaintive tone in Chief Justice Roberts' opposition to the Zivotofsky decision.  He said: "Today's opposition is a first.  Never before has this Court accepted a president's direct defiance of an act of Congress in the field of foreign affairs." 

Of course that is indicative of the tilt to the right in the highest court in America.  For here again, Roberts is acting as a spokesman for what President Woodrow Wilson was warning against: Congressional government.

The majority found fault with that position.  It upheld the argument for exclusive presidential powers in the conduct of foreign affairs.  That was the constitutional side of the coin.

Relying on long practice since 1948, the Executive, in its brief, told the Court: US policy since Harry Truman's presidency "has been to recognize no State as having sovereignty over Jerusalem,  leaving the issue to be decided by negotiation between the parties to the Arab-Israeli dispute."

At this point, I go back to what this blog advocates: Studying American-Arab relationships, not only from the conventional angles.  But also from the unexpected ones.  Here are examples of what the Arabs have so far ignored as sources of knowledge about America.  A country which is in constant change:

• In early June, the U.S. Supreme Court ruled for the right of a Muslim woman to wear her hijab in public.  This is contrary to the legal position adopted by major European countries.  Zahra Sheema, a Pakistani lawyer of 25 years of age was denied a job by the company Abercrombie and Fitch.  The Court ruled that that company had violated a federal ban on religious discrimination.  The decision, said the New York Times "elevated the profile of Muslim women and the challenges some face when they choose to cover their heads as a sign of piety."
• The primary issue in the presidential elections of 2016 are the inequality of economic fortunes within American society.  It goes by the name of "the income gap."  The democrats are accusing the republicans of focusing on the top 1% of the population (the super rich).  The republicans are countering by saying that the democrats are class-minded and are dividing the nation.  They call Obama "the divisive President."
• Hillary Clinton is shifting to the left as she battles for the Oval Office.  This is while all of the slate of 18 republican hopefuls are appealing to their base in white conservative and evangelical circles.
• America is fast becoming a nation where 45% of its population are minorities from non-white countries.  Wouldn't be smart for the Arabs to learn how to influence America through cultivating positive relationships with the mother countries from which those minorities have hailed?
• The free trade agreement, on which Obama had worked so hard, was defeated today in Congress (June 12).  Not by his opponents, the republicans, but by his own party -the democrats.  A big defeat for the president for whom June 12 was a bad day.  It was due to fears from the labor unions, the back bone of the democratic party.  This is a major defeat for globalization and the shift toward Asia inflicted by U.S. Congress.  Ironically, it was the democrats who had originally lobbied for that bill called the Trade Adjustment Assistance (TAA) bill!!  Thus it makes sense for those studying U.S.-Arab relations to study those relations not only from the top level of American decision-makers.  But also from the grass roots level -the labor unions.  The America of today is a super power which is largely focused on JOBS!!  Not different from Egypt and the rest of the Arab world.
• Of course the new Egypt should take note, for whatever it is worth, of the U.S. administration's report on Egypt to Congress dated June 8.  While ignoring the long history of American support for the Mubarak regime, the report represents the new Egypt from a dogmatic angle.  It says, without due reference to Egypt's war on terror, "the overall trajectory for rights and democracy has been negative."
• But the same report presents also a pragmatic facet of the new Egypt.  It credits Egypt with beginning to overhaul its economy "by cutting subsidies, increasing taxes and improving the business climate including for U.S. businesses."
• So the Egyptian media, rather than howling about "intervention in our internal affairs," should also analyze that routine statutory report from its most unexpected angle!!  What is that?  It is that "Egypt's success or failure impacts the prospects of peace, stability, democracy and economic growth across the Middle East."  The very language of that report.

Time for the Arabs to study their relationships with America from its unexpected angles.  As I said above, "America is complex."  A reason why I like what Ambassador Abdel-Raouf El-Reedy has recently advocated in an article in Al-Ahram newspaper.

That experienced diplomat and scholar, the honorary chairman of the Egyptian Council for Foreign Affairs, has called for the formation of study groups to track the arguments and the developments of the on-coming competition for the Oval Office between democrats and republicans.  An angle which should take the Arab thinking about America "out of the box."

Income inequality and student loans (a trillion dollars) in America, not the sanctions on Russia, shall hold sway in the competition between the party of war (the republicans) and the party for "the little people" (the democrats). The republicans are expected to lose.  They have no policy on economic opportunity.  The old party of Lincoln is now the party of the rich.  And republican Senator John McCain, that old war horse, is now chairman of the Senate Armed Services Committee.  With an annual military budget of more than $600 billions.  In a country tired of war.

McCain, a former prisoner of war, is opposing Obama's advocacy of closing Guantanamo.  If only closed minds came with closed mouths!!

No reason under the sun for me to vote in 2016 for a republican president.  The competition is now intensifying.  In my mailbox, I find an electioneering pamphlet from the democratic party.  It is titled "Will the Koch Brothers' billions decide the next election?  It's up to you!"

This is an allusion to another unexpected angle for studying America.  A few years ago, the U.S. Supreme Court decided that money is free speech.  The case was Citizens United.  A terrible setback for democracy.  For it allowed the rich to pour unlimited funds in support of their favored electoral candidates.  The American rich is pouring zillions of dollars to support the party of the rich -the Republican Party.

As an American citizen, I choose to remain unattached to either party.  But my vote in 2016 shall go to Hillary.  And as an Egyptian, I voted in 2014 for El-Sisi.  Nice to have the best of the two worlds.  Two worlds which should get to know each other in more effective ways.  Particularly from unexpected angles.