Supporters of Israel’s right to proclaim Jerusalem as its eternal capital were disheartened last week when the U.S. Supreme Court ruled that passports issued to Americans born in Jerusalem cannot state “Jerusalem, Israel,” but must merely state “Jerusalem.” The concern and even some outrage over the high court’s decision are understandable in view of the acute sensitivity over the status of Jerusalem. But there is more to this story than first meets the eye.

Ever since the United Nations Partition Plan, which was adopted on Nov. 29, 1947, Jerusalem has been formally designated as an “independent city,” and not as the capital city only of Israel, and not as the capital  of Jordan and more recently, not as the capital of the Palestinian Authority. The Kingdom of Jordan occupied the Old City of East Jerusalem during Israel’s War of Independence, but that occupation did not change the status of Jerusalem in  the eyes of the U.N. Similarly, when Israel captured the Old City in the 1967 Six-Day War and later annexed East Jerusalem by an act of the Knesset, those actions were also not recognized by the international body.

The decision on the status of Jerusalem should not be seen as an outgrowth of a feud between President Barack Obama and Israeli Prime Minister Benjamin Netanyahu. The White House and State Department under every president from Harry S Truman through Bill Clinton, George W. Bush and Obama have taken the position that Jerusalem is not the legal capital of any nation and that its status can be determined only through diplomacy. 

The official U.S. policy on the Jerusalem issue is spelled out in a State Department manual: “For a person born in Jerusalem, write JERUSALEM as the place of birth in the passport. Do not write Israel, Jordan or the West Bank.”

Adding to the confusion is that Congress in 2002 passed a federal law allowing Americans born in Jerusalem to request that their passports list “Israel” as their place of birth. President Bush signed the law, which was part of an appropriations bill —  but he opted not to follow the Jerusalem passport provision, which he viewed as a challenge to executive authority over foreign affairs. 

The specific case decided by the Supreme Court was brought by the Jewish parents of Menachem Zivotofsky, 12, who was born in Jerusalem. His parents want his birth certificate to say he was born in Israel. As many as 50,000 Jerusalem-born Israelis could have legally changed their passports if the case had gone in the boy’s favor.

Justice Anthony Kennedy, often regarded as a swing vote shaping a majority, wrote the opinion in the Jerusalem passport case. The court’s four liberal members, including all three of its Jewish justices, sided with the majority in its 6-3 ruling, as did Justice Clarence Thomas, though in a narrower reading than the others.The bottom line, according to Kennedy, is that only the executive branch, and specifically the sitting president, has the authority to recognize — or not — foreign nations and their capital cities.

Chief Justice John Roberts, along with fellow conservative Justices Antonin Scalia and Samuel Alito, dissented. They sided with Congress. 

“Today’s decision is a first,” Roberts said. “Never before has this court accepted a president’s direct defiance of an act of Congress in the field of foreign affairs.” 

Roberts said the court was bowing to fears that the law could be misinterpreted as changing U.S. foreign policy, rather than allowing citizens to define their place of birth.

If there is a potentially disturbing precedent that the Jerusalem case has established, it is that if the current or a future president wanted to unilaterally recognize “Palestine” as an independent state — even if a majority in Congress opposed it with a formal vote – the president would prevail if the same reasoning was used in such a case. 

The past several administrations — Democratic and Republican — have had in place a firm policy that the status of Jerusalem can be resolved only through negotiations among the parties, including Israel and the Palestinians. That bipartisan policy has not changed as a result of the court’s decision.

Israel and its supporters in the United States and around the world have long maintained that Jerusalem must remain the eternal and physically undivided capital of the Jewish State of Israel. For the 19 years that Jordan occupied East Jerusalem, a physical barrier prevented Israelis from visiting the Western Wall, the holiest site in Judaism. 

Some proposals for a two-state solution would allow the Palestinians to set up their capital in a part of Greater Jerusalem. But even under those plans, Israelis of all political stripes insist that Jerusalem must remain physically united and be recognized as the capital of the State of Israel. 

The Supreme Court’s ruling will have little impact on Israel’s position on this very sensitive matter.