By Julian Ku, Jerusalem Journal—
As the world continues to digest the stunning US Presidential election results, I continue to focus on ways in which a President Trump could use his substantial powers over foreign affairs in unique and unprecedented ways.
Among the things he might do, a somewhat less noticed possibility fulfillment of his campaign promise to recognize Jerusalem as the capital of Israel.
For purposes here, what matters is that the US Supreme Court recently confirmed in Zivotofsky v. Kerry that the US Constitution grants the President the exclusive power to recognize foreign nations and governments. This power includes, the Court held, the exclusive power to withhold recognition of Jerusalem as the capital of Israel.
Congress cannot infringe on this power by requiring, for instance, that the President issue passports designating Jerusalem as part of Israel. Hence, the exclusive recognition power extends to recognizing how far a foreign sovereign’s rule extends – such as whether or not Israel has sovereignty over Jerusalem.
The Court’s ruling in Zivotofsky is not exactly controversial. But it seems uniquely relevant as it is entirely plausible that Donald Trump will actually carry out his campaign promise to recognize Jerusalem as the capital of Israel and move the US embassy there.
Most US Presidents pledge to do this during their campaigns, and then are advised by their State Department after taking office that to do so would undermine the Middle East peace process or something. This seems less likely if, as rumors suggest, famously pro-Israel former NY mayor Rudolph Giuliani is appointed Secretary of State.
Moving the US embassy to Jerusalem might be a violation of UN Resolution 242 and other UN resolutions. Certainly, the Palestinian Authority is ready to raise all unholy hell if Trump carries out his promise.
But the US President is also authorized, under US constitutional law, to violate or abrogate UN Security Council resolutions, if 242 and other resolutions actually prohibited such recognition.
It is also worth noting the President’s recognition power could be applied elsewhere in the world’s many ongoing disputed conflicts. President Trump could, for instance, unilaterally recognize Taiwan as an independent country (assuming Taiwan declared as such). Or he could recognize that Crimea is part of Russia.
Like the swift recognition of Jerusalem, I am not giving an opinion here on whether any of these policies are wise or prudent. I will hazard a guess, however, and say that of all of the recently elected US presidents, Trump is the most likely to go out on a limb and push the “recognition” button in unexpected ways.
Julian Ku is a Distinguished Professor of US Constitutional Law at Maurice A. Deane Hofstra School of Law. He is also Faculty Director of International Programs and a Hofstra Research Fellow.