Supreme Court steps into White House-Congress feud over Jerusalem status

State Department officials pointed out that, for political and diplomatic reasons, US policy is to record the place of birth as simply “Jerusalem.”

The parents filed a lawsuit asking a federal judge to order the US government to list the birthplace of their son on official documents as “Jerusalem, Israel.” They noted that in September 2002, a month before the birth, Congress had passed the law instructing US officials to list the place of birth as Israel.

It is that dispute that the Supreme Court has agreed to decide. At issue is whether US officials must comply with the congressional action or, instead, enforce the diplomatic protocol favored for the past 60 years by all presidents.

The child, Menachem Binyamin Zivotofsky, is now eight years old.

The law in question is a provision of the Foreign Relations Authorization Act for fiscal year 2003. The relevant portion of the law is entitled “United States Policy with Respect to Jerusalem as the Capital of Israel.”

President Bush signed the Authorization Act into law but simultaneously issued a signing statement to emphasize that US policy regarding the status of Jerusalem had not changed. Bush wrote that the congressional mandate would “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.”

In the federal court case, government lawyers argued that “if ‘Israel’ were to be recorded as the place of birth of a person born in Jerusalem, such ‘unilateral action’ by the United States on one of the most sensitive issues in the negotiations between Israelis and Palestinians would critically compromise the United States’ ability to help further the Middle East peace process.”

Supporters of the congressional action argue that once Congress passes a law it is up to the executive branch to faithfully uphold and enforce it. They say Congress has the authority to undertake a policymaking role in foreign affairs.

A federal judge threw out the Zivotofskys’ case, ruling that the issue is a political question related to an aspect of foreign affairs that is constitutionally assigned to the executive branch of government. An appeals court panel affirmed the decision.

In agreeing to take up the case, the high court asked the parties to also address whether the 2002 congressional mandate “impermissibily infringes the president’s power to recognize foreign sovereigns.”

The case, MBZ v. Clinton, will likely be scheduled for oral argument sometime in the court’s next term, which begins in early October.

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