With Jerusalem smoldering, the United States Supreme Court is set to rule on a case that could have profound implications not only for the status of that city in terms of American law and policy, but also for the relationship of different branches of government in the American political system as a whole. Indeed, it has the potential of completely restructuring the foreign policy-making process in the United States, and not for the better.

The lawsuit, Zivotofsky v. Kerry, No. 13-628, seeks to enforce a 2002 law that would compel the State Department to list “Israel” as a place of birth on American passports as opposed to “Jerusalem” for those Americans born in Jerusalem who request it. The Zivotofsky family asked the State Department to list “Israel” as the birthplace of their son, Menachem, who was born in Jerusalem shortly after the law was passed.
The Act in question holds that “[f]or the purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” It does not, strikingly, make any effort to define what, precisely, constitutes Jerusalem, despite the fact that there have been several different boundaries defining the city’s geographical definition in the 20th century alone.
At the Supreme Court hearing on Monday, Solicitor General Donald B. Verrilli Jr., speaking on behalf of the government, said the case was “the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades.” That’s no exaggeration. Last year on this site I looked in detail at the international legal and diplomatic implications of the case.

The legal conundrum remains the same. But the political context has only intensified, given both the unusual levels of public acrimony between Washington and Tel Aviv over Israeli settlement policies in and around occupied East Jerusalem, and the extremely tense situation on the ground between Palestinians and Israeli occupation authorities.

Some observers are even going so far as to call the situation on the ground a “silent intifada,” or a “Jerusalem intifada.” Putting aside the fact that both of these phrases are oxymorons — to really be a politically significant uprising, an intifada can hardly be “silent,” and to rise to the level of a generalized uprising, unrest can hardly be restricted to Jerusalem, but rather must spread at least into the West Bank if not all of the occupied Palestinian territories — they do accurately gauge the highly volatile and combustible political situation on the ground.

This, apparently, isn’t lost on the justices.

During the hearing, Justice Elena Kagan responded to claims by the plaintiff’s counsel that changing the wording regarding birthplace on American passports as they requested wouldn’t signal a change in American policy and was relatively insignificant by observing, “Can I say that this seems a particularly unfortunate week to be making this kind of ‘oh, it’s no big deal’ argument? I mean, history suggests that everything is a big deal with respect to the status of Jerusalem. And right now Jerusalem is a tinderbox.”

Justice Antonin Scalia also seemed to be considering the issue in its diplomatic and political context, albeit in a very facile way, by observing that, “If it is within Congress’s power, what difference does it make whether it antagonizes foreign countries? The fact that the State Department doesn’t like the fact that it makes the Palestinians angry is irrelevant.”

Even the Solicitor General, speaking on behalf of the executive branch of government, urged the nine “Supremes” (a frequent nickname for the Supreme Court justices that rather makes them sound like a female vocal group from the Motown era) to consider the case in its diplomatic and political context. He urged them to bear in mind that, “The nations in the region, and, frankly, people around the world and governments around the world scrutinize every word that comes out of the United States government and every action that the United States government takes in order to see whether we can continue to be trusted as an honest broker who could stand apart from this conflict and help bring it to resolution.”

But ultimately the case is not about politics or policies, or at least it certainly shouldn’t be. It is about the constitutional division of power that renders the American system coherent. They may be enjoying a rare foreign policy conversation, but the justices certainly know that the case is about the separation of powers, and that, ultimately, they can only really rule one way.

As Justice Samuel A. Alito Jr. correctly put it at the hearing, “Our decision isn’t going to be based on any view that we may have about whether Jerusalem should be regarded as part of Israel or the capital of Israel.” Instead, it must and will be based on how the Supreme Court interprets the relative roles of the legislative and executive branches of the American government regarding foreign policy.

There can be no doubt that, contrary to the claims of the plaintiff, the designation of a birth in Jerusalem as having taken place in Israel is, in fact, a major foreign policy statement. It can only be interpreted as implying that the United States either agrees that Jerusalem is in Israel, or doesn’t object to that designation, when, in fact, consistent American policy for over 60 years has held that Jerusalem’s status remains to be determined. The real question the Court must answer is whether or not Congress has the power to legislate foreign policy.

Historically the answer to this question has almost always been definitely not. Foreign policy has been strictly held to be the provenance of the executive branch, with very wide discretion in its conduct given to the president.

The two most obvious exceptions don’t suggest anything relevant for this case.

Congress does have the right to withhold funding from any policy it does not wish to fund, as it has absolute power over the nation’s purse strings. Congress did this with regard to funding the Nicaraguan Contras in the 1980s. That set the stage for the Iran-Contra scandal when the Reagan administration sought to circumvent this funding crisis and still funnel funds and supplies to the Contras through secret weapon sales to Iran in exchange for the release of American hostages in Lebanon.

Congress also, theoretically, has the exclusive prerogative of declaring war. However, Congress has not formally declared any war since the Second World War for a variety of significant reasons. The speed at which international relations move now suggests that the executive needs broad leeway in conducting military actions without congressional approval. Moreover, Congress’s role in declaring war increasingly became an anomaly that many felt could potentially throw the rest of the system into sudden disarray at the country’s expense. While many have bemoaned the de facto loss of this power by the legislature and to the benefit of the executive, national security concerns have consistently won the day for the White House.

Congress also has the power to “advise and consent” on treaties and other such commitments, which can have a major impact on foreign policy, and even its ability to confirm or reject cabinet-level appointees and other officials in the executive branch gives it some additional input and leverage. But overall, the American system and its logic strongly dictates that foreign policy (including domestic arrangements involving immigration) is otherwise very strongly reserved to the White House and not the Congress.

Moreover, none of these exceptions seem relevant to the questions raised by Zivotofsky v. Kerry.

When he signed the 2002 law in question, President George W. Bush promulgated one of his famous “signing statements.” It specifically objected to the relevant part of the Act, noting that “Section 214, concerning Jerusalem, impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. US policy regarding Jerusalem has not changed.”

Because of the power of these arguments in the logical structures underlying the separation of powers that regulates relations between different branches of the American government, it’s almost unthinkable that the Court would actually rule in favor of the plaintiffs in this case. A ruling on behalf of the plaintiffs, forcing the President to yield to Congress on a core matter of fundamental American foreign policy, would be troubling and strange indeed.

One ought to be able to confidently expect the decision to uphold the basic constitutional arrangements that are being challenged in Zivotofsky v. Kerry, the plaintiffs’ attorney’s denials notwithstanding. Indeed, we should expect it. After all, if the Court rules on behalf of the plaintiffs and orders the executive branch to comply with Congress’ dictate regarding US foreign policy on Jerusalem, Pandora’s box will well and truly have been opened.

The Supreme Court (the judicial branch) will, in effect, have granted Congress (the legislative branch) authority to dictate through legislation granular and detailed matters of foreign policy to the presidency (the executive branch). Congress can be expected to understand this and to exercise its new powers with considerable relish and abundant audacity, particularly if the White House and legislature are held by different parties, as they very often are (and undoubtedly will be after today’s midterm elections, with Republicans poised to hold the House of Representatives and seize control of the Senate).

The entire process of making and, ultimately, even conducting foreign policy will be fundamentally transformed. And not for the better. What’s at stake could hardly be more significant or far-reaching in terms of constitutional modalities and policy-making processes. This little case, as the plaintiffs present it, has the potential to maintain the present system or completely overthrow it. The Supreme Court undoubtedly understands that. Stay tuned for a fascinating and exceptionally important ruling by late June of next year.

On 18 September, Hisham Melhem – the distinguished Arab journalist and de facto “dean” of the Arabic-language press corps in Washington – published a brilliant, ringing and profoundly significant cri de coeur in the American news magazine Politico. Its impact has reverberated powerfully throughout the Middle East-related commentariat, particularly in the United States. Surveying the wreckage of Arab culture and civilization as normatively understood over most of the past 100 years or so – in other words, what most Arabs thought we knew about ourselves, and which now lies largely in ruins – he conducts an unflinching, overdue and merciless autopsy of what he declares to be, at least for the rest of his own lifetime, a social, economic and political corpse.

All serious observers who care about the Arabs and the Arab world must either immediately acknowledge an instinctive and heartbroken identification with Melhem’s anguish, or continue kidding themselves. Denial is not only pointless; it’s no longer possible without becoming downright delusional. The profound crisis in the contemporary Arab social order and political culture is simply a fact. It can, and must, be analyzed and interrogated. But it cannot be dismissed or even downplayed.

Details aside, it’s just impossible for any serious or honest person to take issue with the essence of Melhem’s grim analysis. Many once-promising Arab societies have been hollowed out during the postcolonial era by grotesquely irresponsible ruling elites. These rulers often appeared, at a manifest level, to be very different from, and sometimes found themselves at odds with, each other. But on closer inspection it should have always been obvious that they actually engaged in similar forms of misrule with analogous consequences.

The typical, although not universal, outcome across the region has been the development of profoundly dysfunctional societies, economic malaise, sectarian mistrust, political extremism and religious fanaticism. The Arab world in general, Melhem concludes, is caught between “the Scylla of the national security state and the Charybdis of political Islam.” At least in the immediate here and now, that’s just undeniable.

Western colonialism, too, played its role by saddling the region with bizarre and artificial borders for jerry-rigged states that never developed sufficient national cohesion and consciousness to survive serious challenges. The West also bequeathed to the Arabs various, and often highly-insidious and cynical strategies of divide and rule, many of which continue to bedevil the Middle East.

The result of this convergence of internal and external poisons is a set of ailing bodies politic, in many cases bereft of social or political legitimacy, and, increasingly and at their worst, attempting to function without order or even structure.

Only parts of the Arab world have thus far totally imploded, but they are hardly irrelevant backwaters: Syria, Iraq, Libya, and to some extent Yemen and Lebanon. It’s far easier to imagine this chaos continuing to expand rather than retreating. Hence, his readers join Melhem on the edge of a precipice, staring into an abyss – producing a kind of highly-unsettling socio-political vertigo.

Melhem correctly notes that the Islamic State (ISIS) did not emerge in a vacuum, but rather lumbered into being out of the detritus of Arab societies shorn of their traditional normative values and in the grip of sub-national identitarian rage and/or existential terror. In Syria, at least 100,000 people were killed by the Assad dictatorship before ISIS really started getting a foothold in its hinterlands. The barbarism and savagery of ISIS is a Hobbesian response to a Hobbesian reality. Much of the contemporary Arab world increasingly looks like a war of all against all.

The grimmest truth about ISIS and other ultra-radical extremist groups is that, in addition to their extreme brutality, they have coherent, albeit despicable, narratives, ideologies and agendas. They appeal to those angry young men of every era who are instinctively drawn to the international extremism du jour. But ISIS is also drawing in a rather different group: a cohort of bored, hopeless, lost Arabs seeking adventure and a kind of twisted purpose to their lives.

ISIS’s fighters could certainly tell you what, exactly, they think they are fighting for and why. ISIS and other violent extremist groups, Sunni and Shiite alike, are actually offering a warped and grotesque caricature of what mainstream Arab societies ought to be able to, but, apparently in some cases, cannot foster: a supposedly “higher purpose” to life through serving the interests of a ferociously puritanical group and mission, together with a coherent worldview and sense of identity and agency. Do these evil people actually believe they are repairing the world, and preparing for the end of days, through blood and fire? It seems likely that, at the very least, that is precisely what they tell themselves and each other.

Worse still, the social vision articulated by ISIS is essentially an extreme – and even absurd, but alas logical – conclusion of certain strands of fundamentalist Sunni Islam that have been promoted over many decades by some wealthy states and individuals. Of course, no one other than the state was ever supposed to act on such ideas. Ordinary people were just supposed to imbibe this religious dogmatism, or at least acknowledge the authority of their tenets, and do nothing.

But now these religious, social and political ideas have been hijacked, stretched to their ideological limits (and, indeed, well beyond), and put into violent practice by gangsters who combine sophisticated criminality with hard-core doctrinal zealotry. With God, all things are possible. And permissible.

And it’s not just ISIS and their repulsive ilk: Shiite and other sectarian fanatics are simultaneously deploying their own version of the dark arts of pseudo-metaphysical propaganda manipulation. They, too, harvest the credulous and desperate, the rudderless, adrift, disoriented and lost, all to feed the insatiable machine of homicide and suicide. It is a ghastly concoction of the most extreme political and spiritual fanaticism, pecuniary profit, sadism and masochism.

Mainstream Arab societies look on in horror but have few compelling narratives to counter ISIS’s propaganda. As Melhem notes, ISIS’s “roots run deep in the badlands of a tormented Arab world that seems to be slouching aimlessly through the darkness.”

It’s not true that there are no other social, political or religious visions in the Arab world. Indeed, predictions that post-dictatorship Arab societies would inevitably produce elected Islamist governments proved wrong, because even though most Arabs are devout Muslims, they are not Islamists. They might well be willing to accept Islamists in government if they are responsible, effective and accountable. But those Islamists who got the chance in government to show what they are truly made of – particularly the Muslim Brotherhood in Egypt – proved nothing of the kind.

The alternative Arab visions, however, to atrophied, stale and failed state authority on the one hand and Islamism of varying degrees of radicalism and violence on the other, remain largely repressed, scattered, unorganized, marginal and hence ineffective. Under such circumstances, Melhem reaches the following, entirely understandable but despairing, conclusion: “It took the Arabs decades and generations to reach this nadir. It will take us a long time to recover – it certainly won’t happen in my lifetime.”

Here it’s important to stop and take stock. I, for one, have found the past six months or so to have been particularly trying, and I know I’m hardly alone. The rise of ISIS, the virtual collapse of the Libyan state, the awful war in Gaza, and so many additional horrors seemed to pile up such that, for the first time in over 15 years of professionally working on and writing about Arab affairs, I could suddenly regard an insurance salesman with some envy. But one cannot give in to such impulses.

At a certain level, there’s no question that Melhem is basically right. A real Arab “recovery” won’t happen in his lifetime, or in mine. Some of the issues are so deep-rooted and structural that they really will take “decades and generations” to completely transform. But hope need not, indeed cannot, be vested only in such a thoroughgoing transformation. Much can, and must, develop quickly to begin to calm the maelstrom Melhem and the rest of us can scarcely believe we are actually living through.

The first thing to bear in mind is how radically different things looked, even for what amounts to a fleeting political moment, at the beginning of the so-called “Arab Spring.” It was not a mirage. Millions of Arabs in Tunisia, Egypt, Syria and elsewhere really did take to the streets demanding reform, accountability and good governance. It was a genuine and spontaneous expression of “people power” and revealed a real appetite for greater openness and at least some version of democracy.

The reasons why the moment passed without realizing its most important goals, and indeed now seems to have ushered in this present period of chaos and unprecedented instability, are less important than the fact that it existed in the first place. There is, we can say with absolute confidence, indeed a mass Arab constituency for pluralism, tolerance, good governance and accountability. It may be inchoate, inconsistent, unorganized and haphazard, but that it exists is undeniable if one simply remembers Tahrir Square.

Second, let us recall that when societies transform, they frequently do so with stunning rapidity. Particularly in the modern era, change can be, and often is, sudden, dramatic and swift. If three-and-a-half years ago was a period of brief but irrational exuberance about the rise of an empowered Arab citizenry demanding its rights and asserting its responsibilities, we should be open to the possibility that the present impulse towards despair might also prove to be exaggerated.

It’s not possible that Arab societies a mere three years ago were on the brink of unprecedented maturation, but then suddenly slumped back into a greater level of immaturity and dysfunctionality than ever. At least one of these impressions is certainly incorrect, as they are mutually exclusive. But it’s also entirely possible that both are false impressions, produced by competing but equally exaggerated utopian and dystopian impulses.

If developments have really taken a dramatically negative turn in much of the Arab world over the past year or two – and they certainly have – it is, surely, equally possible for a sudden and dramatically positive set of developments to emerge (by definition unexpectedly) in the coming months and years.

But, it will be asked, on what would such sudden improvements be based, given the analysis outlined by Melhem and others, and repeated and endorsed above? Well, that it was these same Arab societies and contemporary political culture that gave rise to the “Arab Spring” moment in the first place. And since that was a real and entirely positive, albeit unsuccessful, mass movement, it clearly constitutes a solid basis for genuine hope in a progressive and forward-thinking Arab constituency, and social and political impulse, that now appears dormant but could not have simply evaporated.

In the eyes of their disillusioned and jaded (usually elite and alienated) constituents, struggling postcolonial societies have a particular way of inducing such grim “decades and generations” prognoses. Countless leading Latin American intellectuals, from both the left and right and among the apolitical, as late as the 1980s, expressed very serious doubts that their societies could ever find their way out of war and dictatorship “in their lifetimes.”  Even now, many of these societies’ reform efforts remain works in progress. But the end of decades of wars and civil conflicts, brutal dictatorships and social decay and malaise in Latin America over the past 25 years or so demonstrates what can quickly happen once a corner is turned.

Under such circumstances, it is an intellectual and political moral duty to look for (but not invent) real evidence that allows one to retain a sense of decency and openness to a better future. And such evidence genuinely does exist in the Arab world today, despite a “big picture” that is, or at least currently seems, so unremittingly appalling.

Since I have focused on ISIS as a key indicator of how negative current Arab trends have been, it’s only fitting that we look there for evidence of the positive. Let’s not change the subject; let’s look at it more closely. The backlash against ISIS does indeed provide some rays of hope. They range from something as simple, personal and in many ways marginal as the fact that the UAE’s woman fighter pilot Maj. Mariam Al Mansouri led one of the first major Arab allied airstrikes against ISIS. In itself, this is a mere detail and historical footnote. But in a region plagued with unconscionable patriarchy and sexism – and with women not even allowed to drive a car in Saudi Arabia, or do just about anything without the permission of their legal male “guardian” – this tidbit ought to afford all reasonable people at least a fleeting smile of satisfaction.

On the more substantive register, ISIS has become such a terrifying and destabilizing phenomenon that it is undermining the severe sectarian divide that gave rise to it in the first place, and that began defining the Middle Eastern strategic landscape in recent years. Sunni-majority Arab states have openly recognized, in word and deed, the centrality of the Shiite-led Iraqi government in combating the terrorists.

Last week, militiamen from the central Iraqi town of Dhuluiyah – which is sometimes seen as a bellwether of Iraqi Sunni Arab sentiments – came to the aid of their Shiite neighbors in Al Saud village, which was under attack by ISIS. How significant this is, and whether it proves to be a harbinger of things to come remains to be seen. This Sunni Arab pushback again ISIS might be basically tribal and self-protective. The Jubur tribe predominant in Dhuluiyah was a key player in the “Awakening” against ISIS’s progenitor, Al-Qaeda in Iraq, and hence they have every reason to fear retribution, even after so many years. But the motivation is secondary at best. The fact is, this is a rare instance in recent months in which ISIS has met with stiff Iraqi Sunni Arab resistance, and perhaps the first place where Iraqi Arab Sunnis and Shiites have fought together against ISIS in its current incarnation.

Meanwhile, the grand mufti of Saudi Arabia declared such organizations, and he specifically singled out ISIS, the “number one enemy” of Islam. The UAE and others have repeatedly made the crucial point that the problem is not simply ISIS, but a whole host of extremist organizations driven by the same kind of fanaticism. The makings of a broad regional coalition of states trying to contain precisely that threat appears to be coming together, albeit in fits and starts, formally and informally. It remains shaky, but it’s happening. It’s about time, and it’s a good thing.

It is one thing for powerful Middle Eastern states such as Iran and Saudi Arabia to harass each other via proxies. But it is quite another to find themselves at risk of a more direct confrontation, and, ironically in the case of ISIS, threatened by the self-same gang of fanatics. Either way, the choice facing numerous countries in the region is between finding a more constructive approach to dealing with their differences or risk consuming each other, and themselves, like ravenous fish in the murky deeps.

Some cynics claim that Arab governments they characterize as “counterrevolutionary” because they are staunch defenders of the status quo are seizing on the threat of extreme terrorist organizations like ISIS in order to legitimate themselves and create a gigantic distraction from “revolution” to counterterrorism.

Not only does this argument fail to acknowledge that the threat from ISIS and similar groups is so severe that other considerations that have nothing to do with “counterrevolution” – such as the crossing of sectarian divides – are starting to characterize the response (which strongly suggests it is bonafide and genuine), it also doesn’t acknowledge that the analyses and prescriptions being offered by officials and representatives of these states, or in some cases by some of their leading citizens, increasingly recognizes that social, educational and even political changes will be required to defeat the threat of fanaticism in the long run. So even if the “counterrevolution” narrative had some merit (although it doesn’t square with these governments’ support for the uprising in Syria, among numerous other obvious anomalies), it would still actually do little to explain the increasingly unified response to ISIS or the likely long-term implications of that response.

Therefore, even looking at the most disturbing contemporary Arab phenomenon – the Islamic State – it’s possible to identify many different bases for a more hopeful attitude without being dreadfully naïve or inventing an alternate reality.

All across the region, from courageous individuals to small groups that are doing good in their own small spheres of activity and influence, to strategic realignments at the state and regional level (such as the important new international coalition to combat ISIS), the basis for hope for a better Arab future can indeed be identified if you start looking for it. Indeed, in various different guises, positive signs are everywhere, even though negativity is by far the dominant trend at present.

Unfortunately, there’s no real basis for suggesting that social and political realities in the Arab world are going to start dramatically improving in the immediate future. They may well continue to get worse, as they have been of late. We just don’t know what is going to happen.

The crucial point is that the one thing that is certain is that the choices that we make individually and collectively will have a direct and profound impact on the short, medium and long-term outcomes. And, therefore, our choices must be carefully considered, deliberate and purposive, while apathy and inaction are not options.

The first step in coming to grips with where we Arabs find ourselves today is precisely the sort of unflinching, resolutely principled and searingly honest evaluation provided last month by Hisham Melhem in Politico. But the second step has to be a serious investigation of what, exactly, there is to work with to make our ever-changing reality better rather than worse (or more of the same), and to consciously and proactively look for positive trends that buck the general recent pattern of alarming deterioration.

Retaining agency requires retaining hope. Not pie in the sky, Pollyanna hope; but real hope based on existing realities and plausible outcomes. As bad as things are in the Arab world today, the grounds for such hope are genuine. The task is to first identify the bases for improvement, and then to act on them.