War. Torture. The NSA. And Jerusalem? The American president's addiction to king-like power must end
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Version 0 of 1. In September 2002, the US Congress passed a bill, one controversial part of which is titled “United States Policy with Respect to Jerusalem as the Capital of Israel”. Among other things, the section directed the State Department to record as the place of birth on a passport, if the parents or guardians of a US citizen born in Jerusalem so requested, one place: Israel. President Bush signed the bill into law, but – this being George W Bush, who saw his office as above the law on issues from going to war to torturing during an endless war and even spying on his own citizens – he also issued an adjoining statement expressing his view that the statute is an unconstitutional encroachment on presidential power. The Obama administration has taken the same position, in reasserting the White House’s official neutrality as to which sovereign controls Jerusalem – and in resisting the power for Congress to keep the president’s power in check. In October 2002, Menachem Zivotofsky was born in Jerusalem to parents who are United States citizens. Zivotofsky’s mother applied for a US passport, listing his place of birth as “Jerusalem, Israel” – exactly as the federal statute allows. But the State Department issued a passport listing only one word as Zivotofsky’s place of birth: Jerusalem. On Monday, the US supreme court will argue Zivotofsky v Kerry in the context of a decades-long dispute between Israelis and Palestinians, and in a moment when the symbolism of statehood matters as much as ever. But the case’s underlying issue is of profound importance: can a law passed by Congress and signed by the president still control how an American president meddles with the world? Or will the most powerful person in the world’s disturbing claim to power over foreign policy go unchecked? The justices on the court should reject the constitutionality of presidents who break the law, because it is the very essence of the separation of powers – of their job and, indeed, of American democracy. It is why we have laws that restrict the spending of money in foreign policy, that prevent torture, that require a warrant for wiretaps or congressional approval for a war, that allow people born in Jerusalem to list Israel as their birth country. In none of these areas does a president have the right to do as he pleases, but in all of them presidents have. For example, during the presidency of Ronald Reagan, Congress passed the Boland Amendment, which prevented the federal government from using any funds to help the contras in Nicaragua. The Reagan administration broke this law by selling arms to Iran and funneling the money to the contras anyway, in the Iran-Contra scandal. The White House claimed that the amendment unconstitutionally limited how the president conducted foreign policy, even though the Constitution clearly gives Congress the power to control how the government spends its money. Infamously, during the second Bush administration, two Justice Department officials wrote a memo arguing that the president did not need to comply with statutes and treaties prohibiting torture. Bush’s administration also argued that a federal statute requiring a judicial warrant before all wiretaps was unconstitutional and that it had the authority to engage in warrantless electronic surveillance for the sake of security. The real start of the NSA scandal was when Bush didn’t think the Constitution could stop him from spying on people in the United States. And ever since Congress enacted the War Powers Resolution in 1973, Democratic and Republican presidents alike have claimed that it is unconstitutional. But getting congressional approval every 60 days to keep fighting a foreign war never made it to the supreme court. Neither has the constitutionality of illegally funding rebels or listening to the phone calls of citizens without a warrant (yet). But Zivotofsky v Kerry gives the court the chance to definitively reject that the broad and seemingly neverending assertion of unchecked and uncheckable power made by President Obama, his predecessors and potentially his successors. I am always skeptical of modern arguments based on the the original meaning of the Constitution – I am skeptical of the supreme court in general, despite having argued before it many times – but if anything in the Constitution remains clear it is that the framers rejected unchecked executive power. Above all, they wanted to avoid the abuses they witnessed from a king who was not constrained. An American president who claims unchecked authority has king-like arrogance that has no place in American democracy. The foundation of the United States was elegant but simple: important action requires two branches of government. Enacting a law, even something as simple but controversial as a line on a passport, requires the involvement of the president and Congress. Enforcing a law requires a prosecution by the executive branch and a conviction in the courts. Creating a treaty requires negotiation by the president and approval by the Senate. Appointing a judge or a cabinet member or an ambassador requires nomination and confirmation. Going to war should require approval by Congress and implementation by the commander-in-chief. And if it takes a symbolic line on a passport to finally get us back to where we began, so be it. Because no one – not even the American president – is above the law. |