The Supreme Court ruled last Monday that Congress acted unconstitutionally when it required U.S. passports to say an American citizen born in Jerusalem was born in Israel, rather than just “Jerusalem,” if the U.S. citizen (or his/her parents) so requested. The power to state what country contained Jerusalem was asserted by both the president and Congress, and the court ruled for the president.
The foreign policy issue deals with America’s consistent position under both Democratic and Republican presidents back to the founding of Israel that the status of Jerusalem would be left for final resolution between Israel and Palestine. But it’s the legal issue, not the policy, that the court was deciding. The court reasoned that the Constitution gives the president the right to recognize ambassadors, recognizing governments is akin to that power and keeping Jerusalem’s status open was akin to recognizing what was included in the country (Israel) America was recognizing. The Congress shares foreign policy authority with the president, but the court then held that there needed to be only one spokesperson for our country in a matter like this.
In the past, federal courts have dodged many important issues by claiming they were “political questions,” to be left to political battle between the executive and legislative branches. When a president may go to war without an explicit declaration by Congress is one such instance; when a president may abrogate a treaty on his own, that required two-thirds of the Senate to ratify in the first place, is another. Whatever one’s view on the court’s decision, it was good the judicial branch stepped up to decide a dispute between the other two branches.
The same could not be said of the president; in this case, President George W. Bush. One overlooked part of this case is that this law became a statute because President George W. Bush signed it – even though he thought it was unconstitutional. Here is what President Bush said on September 30, 2002: “Section 214, concerning Jerusalem, impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the president’s constitutional authority to formulate the position of the United States, speak for the nation in international affairs and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.”
The president must take an oath to uphold and defend the Constitution. How can he do so and sign a law he believes is unconstitutional?
President George W. Bush was not the first president to sign a law he simultaneously declared to be unconstitutional. Modern presidents have accelerated this practice, with both Bushes, Reagan, Clinton and Obama issuing more such statements than all previous presidents combined. The American Bar Association was so alarmed by this practice, it constituted a special task force that called on presidents to use their veto instead of signing a law and then ignoring it.
That recommendation, if followed in this case, would have led President Bush to veto the 2003 Foreign Relations Authorization Act. Congress could then have passed it over his veto, if they felt strongly enough about it. Alternatively, Congress could have sent him an authorization bill without the provision about Jerusalem. In a normal situation, that would be an appropriate calculation: Compromise requires not insisting on all one wants. If a bill contains something of value to the president’s agenda, and something he dislikes, he makes a calculation of whether to sign the bill.
It should be different, however, where it is not a matter of what the president doesn’t like, but a matter of what the president considers unconstitutional. If his oath of office means anything, a president should not sign an unconstitutional law because, even if he does not intend to enforce that law, a subsequent president might; and if it’s a violation of the Constitution, the president who signed the law would have enabled the violation to occur.
Last week, the Supreme Court upheld the Constitution. We should not forget that presidents must do so as well, even when inconvenient.
Tom Campbell is dean of the Fowler School of Law at Chapman University. He clerked for Supreme Court Justice Byron White and was a member of Congress. He has taught law for 35 years.
These views are his own.