ABSTRACT

The conduct of American foreign policy has traditionally been reserved for the executive branch of the federal government, with the role of Congress merely subsidiary. This basic principle was given legal expression in the opinion of Justice George Sutherland in the case of United States v. Curtiss Wright, decided by the US Supreme Court in 1936.1

Recognition of foreign governments and acceptance of ambassadors has long been acknowledged as matters left to presidential discretion. However, in the wake of the Vietnam War, Congress has become increasingly active in the field of foreign policy and has adopted initiatives designed to restrict the President and to shape alternative approaches regarding major issues. In the matter of the status of Jerusalem, Congress has also enacted laws mandating changes in American policy. These laws have been ignored by the executive branch of government, and the Congress has not seen fit to force the hand of the President in these matters. But since one of these statutes bore directly on the right of American citizens residing in Israel, the judiciary branch of the federal government has been called upon to compel presidential compliance with that statute. The critical legal question before the courts is whether the rights of a citizen, confirmed and mandated by law, can be disregarded by the executive on grounds that the law, by impinging on the prerogatives of the executive, violates the separation of powers, is unconstitutional and thus lacks mandatory force. This chapter argues that for the first time, the Jerusalem question, which the executive has regularly skirted, now as a result of congressional action has come before the courts and may possibly bring about a subtle change in American policy.