Congressional funding speaks louder than presidential words: cold, hard cash versus the recognition power.

• Author: Bailey, Eliza S.

"[H]e shall receive Ambassadors and other public Ministers ...." (1)

1. INTRODUCTION

   In August, 2014, United States lawmakers approved an additional $225 million to support Israel's missile defense system known as the Iron Dome. (2) Less than one month later, in September, 2014, the Supreme Court of the United States set Docket Number 13-628, Zivotofsky ex rel. Zivotofsky v. Kerry, (3) for argument. (4) The Court in Zivotofsky v. Kerry examined a federal statute known as the Foreign Relations Authorization Act (FRAA). (5) The central issues of Zivotofsky probed whether the FRAA infringed upon the executive branch's recognition power and if it does, whether the recognition power is exclusive to the President. (6)

   Specifically, Zivotofsky asked the Court to allow parents to direct the U.S. State Department to record Israel, instead of only the city designation of Jerusalem, on their child's passport to denote their child's birthplace abroad. (7) While the child was bom in Jerusalem, and the FRAA permits the State Department to recognize a certain location on passports at the request of parents, presidents have repeatedly refused inclusion of the designation of Israel to refer to the sovereign of the city of Jerusalem on the official document. (8) Both Presidents Barack Obama and George W. Bush have argued that the President has the exclusive power to direct the nation's foreign policy and that Arabs and Israelis should decide the status of Jerusalem sovereignty--not the United States. (9)

   The Executive relies primarily on Article II, Section 3 of the United States Constitution to assert that only the President has the power of sovereign recognition. (10) Specifically, the Constitution states the President "shall receive Ambassadors and other public Ministers ..." and therefore, only the President, not Congress without presidential endorsement, may recognize Jerusalem as a city under Israel's rightful control. (11) The Executive argues that issuing an official U.S. passport stamped with Israel denoting the holder's birthplace in Jerusalem is unconstitutional because the Executive does not wish to recognize Jerusalem as a city in the nation of Israel. (12)

   Upon a closer look, however, the United States recognizes Israel in a significant economic respect: Israel is the largest recipient of U.S. Foreign Military Financing (FMF) of all foreign nations, and for fiscal year 2016 (FY2016) President Obama requested funding for Israeli FMF at 53% of the total requested FMF worldwide. (13) Furthermore, the United States created a ten-year Memorandum of Understanding (MOU) to provide $30 billion in military aid grants from FY2009 to FY2018. (14) During President Obama's visit to Israel in March of 2013, the President also guaranteed multi-year pledges of military aid to Israel, subject to the approval of Congress. (15)

   In light of presidents' consistently requested and approved defense funding to Israel, the Supreme Court confirms in Zivotofsky that the Executive's contemporary recognition power no longer harbors any significance. (16) In Zivotofsky, while the Executive rightfully prevailed, each Justice refused to acknowledge the Executive's hypocritical stance: presidents argue no country has sovereignty over Jerusalem, yet presidents continually provide military funding to Israel to further Israeli occupation and control of Jerusalem. (17) For well over half of a century, the Executive has approved substantial military aid to Israel by signing into law congressionally-backed legislation to provide weapons and funding overseas. (18) Therefore, as the Supreme Court does not address the Executive's financial recognition of Israel, but rather states the Executive's spoken recognition is at odds with Section 214(d) in Zivotofsky's case, the Supreme Court reduces the recognition power to a frivolous formality, one with little tangible impact in the modern realm of foreign policy. (19)

   This Note will address the U.S. military funding at odds with the Supreme Court's ruling that the Executive's claim of neutrality is paramount and trumps the exercise of Section 214(d) as the United States must "speak with one voice" on the matter of Israeli-Palestinian foreign policy. (20) This Note will begin with a brief discussion of the history surrounding the Israeli-Palestinian territorial dispute, including U.S. involvement with Israel throughout the twentieth and twenty-first centuries. (21) This Note will then examine the history of the recognition power, cited in the U.S. Constitution, as it relates to the presidential argument in Zivotofsky. (22) Following, this Note will consider Zivotofsky, its appeal, and the Supreme Court's final decision on the matter. (23) This Note will then conclude with a discussion of possible repercussions surrounding the outcome of the case as it relates to the future of U.S. involvement in the territorial conflict between Israel and Palestine. (24)

2. HISTORY

   1. United States and Israel: Post World War II to Present Day

      1. Support

         Following World War II, on May 8, 1946, President Harry Truman wrote to British Prime Minister Clement Attlee urging Great Britain to allow Jewish people to immigrate to British-occupied Palestine following the Holocaust. (25) Truman's support for the move was boisterous, but U.S. military leaders--who believed the political push for Jewish immigration would cause bloodshed abroad--opposed any action that would cause U.S. armed forces to commit to, or even monitor, the region. (26) The United States State-War-Navy Coordinating Committee (SWNCC) issued a Joint Chiefs of Staff memorandum on June 21, 1946, warning against Truman's recommendation for Jewish movement to British-occupied territory in Palestine. (27) The SWNCC strongly opposed the involvement of armed forces because it noted that there might be serious consequences that would challenge current control of the region and prejudice delicate U.S. interests in the Middle East. (28)

         Although the SWNCC cautioned Truman that his support could have disastrous U.S. military implications, President Truman moved ahead, vocally endorsing Jewish movement into British-occupied Palestine, both domestically and overseas. (29) Less than two years later, on November 29, 1947, the United Nations (U.N.) approved Resolution 181. (30) Resolution 181 terminated the British Mandate in Palestine and created independent Jewish and Arab States with a special international regime for the City of Jerusalem. (31)

      2. Recognition

         On May 14, 1948, Israel's first prime minister read Israel's Declaration of Independence proclaiming that a Jewish State called Israel shall be born the next day, May 15, 1948, at 12 a.m. Palestinian time. (32) At midnight, the British Mandate for Palestine expired and eleven minutes later the United States recognized Israel as a Jewish State in Palestine on a de facto basis. (33) The same day the United States officially recognized the Jewish State, Egypt, Lebanon, Syria, Trans-Jordan, and Iraq launched an attack on the newly declared nation. (34) The war later resulted in geographic division of territory initially promised to Palestinians by Resolution 181, including portions of Jerusalem. (35) Despite the warring nations, the United States continued to support Israel with an official declaration of de jure recognition on January 31, 1949. (36)

      3. Assistance

         President Truman played a key political role in the establishment of a Jewish State in Palestine through his expedient, vocal support for the U.N. partition plan in 1947. (37) Yet, in the early days of establishing Israel's statehood, the United States did not extend sizeable financial support for fear of jeopardizing relations with Arab countries. (38) The United States did not supplement any official military loan program to Israel until 1959, and from 1949 to 1965, U.S. aid to Israel consisted predominantly of economic development assistance and food aid. (39)

         The United States did not begin to provide substantial funding and heavy military assistance to Israel, compared to U.S. support of other nations, until 1967, the same year of the Six-Day War. (40) By 2015, U.S. financial support to Israel was exponentially larger than in 1967. (41) For example, in 2013 the United States Missile Defense Agency (MDA) requested $55 million for a FY2016 Iron Dome coproduction program with Israel. (42) Additionally, Section 1669 of the House version of the National Defense Authorization bill for FY2016 called for $41.4 million to fund Iron Dome components; the Senate's version of the bill made the same authorization. (43)

   2. United States and Israel: Modern Funding

      1. Military Aid

         In 2015, Israel remained the leading cumulative recipient of foreign aid from the United States since World War II. (44) U.S. military aid to Israel helped transform the country's army into a sophisticated force. (45) The United States provides almost all of its aid as a single donor to Israel in the form of FMF. 46 The Israeli FMF represents approximately half of the total U.S. FMF to other countries and comprises 20% of the Israeli defense budget. (47) Israel expects an additional $3.1 billion in FMF from FY2015 to FY2018 and is estimated to use 75% of its aid to purchase arms from the United States. (48) In the past, the United States has provided financial assistance to Israel that is distinct from military funding, with a small portion of funding allocated for migration assistance through American Schools and Hospitals Abroad (ASHA) initiatives. (49) In 2013, such nonmilitary assistance ceased, and the vast majority of U.S. funding to Israel remains in the form of military grants. (50)

      2. The Iron Dome

         The United States began to support the technological development of Israel's Iron Dome in FY2011. (51) The Iron Dome is a defensive, anti-rocket system that protects Israel's civilian population from rockets fired by Palestinian militants. (52) Lawmakers touted the Iron Dome as critical for...