Jerusalem passport law: Supreme Court Jerusalem Passport
Published: June 8, 2015
Jerusalem passport law: Supreme Court Jerusalem Passport, Siding with the White House in a foreign-policy power struggle with Congress, the Supreme Court ruled Monday that Americans born in the disputed city of Jerusalem can’t list Israel as their birthplace on passports.
In a 6-3 ruling, the court said Congress overstepped its bounds when it approved the passport law in 2002. The case mixed a dispute between Congress and the president with the thorny politics of the volatile Middle East.
The ruling ended a 12-year-old lawsuit by a Jerusalem-born American, Menachem Zivotofsky, and his U.S.-citizen parents.
The law the court struck down Monday would have forced the State Department to alter its long-standing policy of not listing Israel as the birthplace for Jerusalem-born Americans. The policy is part of the government’s refusal to recognize any nation’s sovereignty over Jerusalem until Israelis and Palestinians resolve its status through negotiations.
Justice Anthony Kennedy said in his majority opinion that the president has the exclusive power to recognize foreign nations, and that determining what a passport says is part of that power.
“Put simply, the nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not,” Kennedy wrote. “Recognition is a topic on which the nation must speak with one voice. That voice must be the president’s.”
Justice Antonin Scalia challenged Kennedy’s analysis in a vigorous dissent that Scalia summarized from the bench. “Who says so?” Scalia said. “The text and structure of the Constitution divide responsibility for foreign policy.” Chief Justice John Roberts and Justice Samuel Alito joined the dissent.
In a separate opinion, Roberts cast the court’s decision as dangerously groundbreaking. “The court takes the perilous step – for the first time in our history – of allowing the president to defy an act of Congress in the field of foreign affairs,” he wrote.
Justice Clarence Thomas agreed with the outcome of the case, but on narrower grounds.
Robert Reinstein, the former dean of the Temple University law school, said the decision was significant because the court held for the first time that the president has exclusive power in an area of foreign affairs – recognizing foreign governments – even though the Constitution does not explicitly say so. On the other hand, Reinstein said, Kennedy went out of his way to say Congress retains substantial authority in providing money for embassies, imposing restrictions on trade and refusing to ratify treaties.
Saeb Erekat, a senior Palestinian official, said the ruling was a “very important decision.”
“It is a clear message to the Israeli government that its decisions and measures in occupying and annexing Jerusalem are illegal and void and that it should immediately stop these measures because it’s a clear violation of the international law,” Erekat said.
Israel’s government declined to comment. Foreign Ministry spokesman Emmanuel Nahshon said Israel does not comment on rulings by foreign courts.
The court’s consideration of the case has coincided with acute Palestinian-Israeli tension over Jerusalem and strain in Israeli-American relations, highlighted by Israeli Prime Minister Benjamin Netanyahu’s criticism of the U.S. role in international negotiations with Iran over its nuclear program. President Barack Obama has said he remains unconvinced by Netanyahu’s efforts to clarify statements the prime minister made during his campaign for re-election that rejected creation of a Palestinian state.
The status of Jerusalem has for decades been among the most vexing issues in Israeli-Palestinian relations. Israel has controlled all of Jerusalem since the Six-Day War in 1967 and has proclaimed a united Jerusalem as its eternal capital. The Palestinians have declared that east Jerusalem will be the capital of their independent state.
Indeed, Kennedy opened his opinion by noting the tensions that surround the status of Jerusalem. “A delicate subject lies in the background of this case. That subject is Jerusalem,” he said.
In the voting breakdown, the court’s four liberals, including the three Jewish justices, joined Kennedy’s opinion that sided with the administration and against the Zivotofskys.
U.S. policy has long refrained from recognizing any nation’s sovereignty over Jerusalem and has held that the city’s status should be resolved through negotiations between the parties. Congress has for years tried to push administrations of both parties to recognize Jerusalem as Israel’s capital. The U.S. has never enforced the passport law, which has been on the books since 2002.
President George W. Bush signed the 2002 provisions into law but noted that “U.S. policy regarding Jerusalem has not changed.” Obama has taken the same stance.
Reacting to the ruling, Alyza Lewin, who argued the case for the family, said the decision “highlights the central fallacy” of U.S. policy on Jerusalem. “Presidents have been permitted by American public opinion to maintain, as American foreign policy, the absurd position that no country is sovereign over Jerusalem, and that no part of the city, including the western portion of Jerusalem, is in Israel,” Lewin said.
State Department spokesman Jeff Rathke said the decision simply confirmed the president’s longstanding authority in foreign affairs and added, “We remain committed” to the policy on the neutrality of Jerusalem.
The justices had Zivotofsky’s case before them once before. In 2012, the court rejected lower-court decisions that called the matter a political issue that should be resolved by Congress and the president without the help of the courts.
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