National Defense Authorization Act for Fiscal Year 2016

Floor Speech

Mr. COTTON. Madam President, earlier this week, the Supreme Court
wrongly decided the case of Zivotofsky v. Kerry, an unprecedented
decision which impairs Congress's role in foreign policy and which is
an affront to our close ally Israel.

The Zivotofsky case concerned the executive branch's refusal to
implement a 2002 law passed by Congress and signed by the President.
The law required State Department officials to offer U.S. persons born
in Jerusalem the option of listing Israel as their location of birth on
passports and other consular documents. The State Department's practice
had been to list the place of birth only as Jerusalem, reflecting the
President's policy of not recognizing any national sovereign authority
over the Holy City.

Despite the fact that a President signed the statute into law, the
executive branch has fought tooth and nail for 13 years to free itself
from what it viewed as the heavy burden of writing the word ``Israel''
on one line in a tiny number of U.S. passports, and it argued its case
all the way to the Supreme Court.

In litigating the Zivotofsky case, it is no surprise that the
President outlined a maximalist vision for his power to steer the
Nation's foreign policy, leaving little room for the people's
representatives in Congress. But it was a surprise that the Supreme
Court acquiesced to the President's position.

Before Monday, in the entire 225-year history of our Nation, the
Supreme Court had never sided with a President's blatant refusal to
comply with a duly-passed statute affecting the conduct of foreign
affairs. This is a remarkable and disturbing break with precedent and
one made through a poorly reasoned judicial opinion. The Court
announced that the President possesses an exclusive constitutional
power to recognize other nations and that this power crowds out any
attempt by Congress to legislate in this area, including on how
locations of birth are characterized on passports.

But this conclusion suffers from a number of problems. The Court is
supposed to only find a preclusive executive power where such a power
is clearly committed to the executive branch in our Constitution. But
nowhere in the text of the Constitution is there a reference to a
recognition power, let alone an allocation of such a power to the
President alone. The Court acknowledges this in its opinion, so it
instead finds the recognition power embedded in the constitutional
provision stating that the President ``shall receive Ambassadors and
other public Ministers.'' But, as Alexander Hamilton wrote in
Federalist 69, that provision was understood to be a matter of
``dignity,'' not ``authority'' that would have ``no consequence for the
administration of government.'' In other words, that provision does not
imbue the President with a power; it imposes an obligation on him, and
a ceremonial one at that.

The provision furthermore appears in the section of the Constitution
that imposes an array of obligations on the President, not the section
investing him with any powers. Ironically, it appears right before the
provision that obligates the President to ``take care that the Laws be
faithfully executed.'' I would assume the Framers believed that ``the
Laws'' would include ones regarding passports.

I want to be very clear on this. The recognition power the Court
identified is not enumerated in the text of the Constitution, and no
one at the time of the founding believed it to be included. At the same
time, the Constitution explicitly entrusts Congress with grave
international responsibilities, including the power to declare war and
raise and support armies. These powers place the legislative branch in
a central role in the conduct of our Nation's foreign policy. The
Supreme Court therefore stood on remarkably shaky ground when it
announced a supposedly exclusive Presidential power--one that can
nullify contrary congressional enactments. And it unwisely and
indeterminately expanded the President's unchecked discretion in the
conduct of foreign affairs. That is a potentially dangerous opening,
particularly with the current President. President Obama has shown an
unhealthy penchant for granting unilateral concessions to longtime
enemies abroad. That tendency cannot and must not go unchecked.

Beyond the constitutional infirmities of the Court's opinion, I want
to comment on the broader issue in the background of the Zivotofsky
case.

The executive branch based its refusal to comply with the passport
law on the fear that identifying a person born in Jerusalem as having
been born in Israel would upend the peace process. The State Department
declared that compliance with the law ``would critically compromise''
U.S. efforts to forge an agreement between Israel and the Palestinians,
``significantly harm'' our foreign policy, and ``cause irreversible
damage'' to the role of the United States as an honest broker.

That is embarrassing hyperbole, and it is also complete nonsense. The
role of an honest broker in negotiations is just that--to be honest. So
let's be honest. Israel's seat of government is located in Jerusalem.
Israel administers the entire city. Over 500,000 Israelis live and work
in Jerusalem. The reality is that Jerusalem is the capital of Israel,
and any final agreement--whether or not it includes some sort of
sharing arrangement--will not change that. The United States and the
world should not deny that reality; they should accept it and then
begin the hard work of helping the parties forge a lasting peace.

The role of an honest broker is to ground negotiations in truth. It
is to quell unreasonable reactions and expectations. It is to strip
away issues that are peripheral and focus on those that are essential.

That the President believes the designation of Jerusalem as a part of
Israel on a passport can throw the entire prospect of peace into a
tailspin says much about his confidence in his abilities as a mediator,
and it perhaps also says much about the current political climate in
the Middle East, where deepened divisions would render renewed talks at
this point unproductive.

Ultimately, a resolution of the Israel-Palestinian dispute should be
reached, but progress toward that resolution will not move forward if
the Palestinians remain unreasonably sensitive to peripheral issues
such as passports. It will not move forward if the President is afraid
to speak the truth. It will not move forward if the United States
Congress is restrained from adding a dose of reality to the conduct of
our foreign affairs.

Madam President, I yield the floor.

I suggest the absence of a quorum.

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