With new Israeli limits being placed on Palestinians seeking to pray in Jerusalem, violence mounting, and Palestinian neighborhoods being illegally colonized, Congress is ill-equipped to make a unilateral decision on the status of Jerusalem. Yet this could happen in the days ahead if the Supreme Court decides to strip the executive branch of its typical powers, ceding them to Congress, in the closely watched Zivotofsky v. Kerry case.

Constitutional authority grants power to the executive in foreign affairs. For decades Americans have recognized the executive's power to determine United States foreign policy as paramount.

The executive branch, not Congress, is tasked with the duty to defend and uphold American national interests.  This obligation is based on the executive being elected by all citizens of the United States. Congressional members, however, are elected by citizens only from their state, territory, or district of residence. National interests are not the focus of Congressional members.  The issues and interests of a Congress member’s particular constituency and state are given greater weight, among other private interests. House representatives are always subject to the worries of surviving the next election and push forward local interests that will get them re-elected. Consequently, the executive is in a better position to shape foreign policy free of domestic constraints and pressures.

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The executive is also in a better position to react quickly to crises by taking substantive action as national interests change. Congress must go through the lengthy process of drafting legislation, debate, and having it pass both the House and Senate before any substantive action is taken. Executive orders are a product of this understanding of the limited capacity of Congress to enact substantive change to readily address vital and quickly evolving foreign policy concerns.

Foreign policy must be made in one voice, not with conflicting and/or competing positions as in Congress. This necessity is easily achieved with the executive as the sole organ of United States external relations. It would be extremely difficult if 535 people were tasked with negotiating treaties and agreements, or establishing and maintaining diplomatic relations with other countries and international organizations.

Furthermore, the president is the U.S. representative to the United Nations and the world. The president, not Congress, is held accountable by the international community for American compliance with international law and human rights. In U.S. domestic politics, political expediency incentivizes Congress to support ill-advised Israeli policy with little concern for Palestinian human rights and freedom or international law prohibitions on settlement activity.  The executive branch has broader considerations.

In the context of Jerusalem, the executive’s power to decide U.S. foreign policy on the status of Jerusalem is imperative. Foremost, Israel’s annexation of East Jerusalem is illegal. Israel’s expansion of settlements in East Jerusalem, uprooting and displacing thousands of Palestinians, violates international law.  Israel has taken this action with the purpose of altering the cultural makeup of Jerusalem to be more Israeli and to limit Palestinian population growth in the city.  This is done in spite of United Nations Security Council Resolution 476, adopted in June 1980, which states that “all legislative and administrative actions taken by Israel, the occupying Power, which purport to alter the character and status of the Holy City of Jerusalem, have no legal validity and constitute a fragrant violation of the Fourth Geneva Convention.”  

Nevertheless, Congress continues to pass numerous pro-Israel resolutions – even as Israel colonizes occupied Palestinian territory and kills civilians in Gaza. Congressional members often feel obliged to support these resolutions because to do otherwise would isolate them from pro-Israel constituents whose backing takes primacy over upholding the rights of politically weak Palestinians. This flawed incentive structure makes Congress ill-equipped to make a unilateral decision on the status of Jerusalem.

The executive’s leadership role in peacekeeping and peacemaking around the globe makes the executive better positioned to determine the status of Jerusalem. Jerusalem is the center of the Israeli-Palestinian conflict. Since President Harry Truman recognized the nation of Israel in 1948, the executive branch has consistently exercised its duty to attempt to preserve peace by maintaining Jerusalem’s neutral status. Even former Israeli Prime Minister Yitzhak Rabin opposed U.S. legislation to move Israel’s capital to Jerusalem because he knew it would endanger the Oslo Peace Process. All presidents since Clinton have invoked the national security waiver to prevent the U.S. embassy from moving to Jerusalem in order to avoid sabotaging peace efforts.

To recognize Jerusalem as the capital of Israel, either concretely or symbolically as the Passport Statute does, is political dynamite and would be grossly irresponsible. Federal case precedent should be upheld and afforded deference. The court should be mindful of Congressional politics and judicial activism being allowed to further destabilize the region.

Ayoub is the legal and policy director of the American-Arab Anti-Discrimination Committee (ADC).