How wrangle over Jerusalem is at the core of a US Supreme Court showdown

Did Congress overstep its authority when it instructed US officials to list 'Israel' as the place of birth for Americans born in Jerusalem? Supreme Court justices heard arguments Monday.

By , Staff writer

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    Ari Zivotofsky (r.) stands with his nine-year-old son, Menachem, outside the Supreme Court in Washington, Monday. The Supreme Court seems unlikely to rule for a 9-year-old boy who was born in Jerusalem and wants his US passport to list his place of birth as Israel.
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The status of Jerusalem, bitterly contested for ages by rivals in the Middle East, has for years also divided the legislative and executive branches of the US government.

Now a law passed by Congress in 2002 instructing US officials to list “Israel” as the place of birth for Americans born in Jerusalem is at the core of a potentially historic showdown at the US Supreme Court pitting legislative against executive power.

On Monday the justices heard arguments in the case, Zivotofsky v. Clinton, examining whether Congress overstepped its authority when it passed the law.

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Based on questions asked at oral argument, the justices appear inclined to leave the intricacies of foreign policy to the State Department.

The case arises in the relatively limited context of how best to record the birth of a child to American citizens when the birth takes place in Jerusalem. But the underlying issues will likely force the justices to confront irreconcilable claims to power from co-equal branches of government.

On one side is a State Department policy that requires that the US passport of a child born in Jerusalem record the place of birth as merely Jerusalem.

On the other side is the federal law that requires US officials to record Israel as the place of birth, whenever requested by US-citizen parents.

Roughly a month after the law was passed, Ari and Naomi Zivotofsky, both US citizens living in Jerusalem, were blessed with the birth of a son, Menachem.

The boy’s mother applied for a US passport, but was disappointed to learn it would not record the place of her son’s birth as Israel, only Jerusalem. State Department officials cited the Jerusalem policy.

The Zivotofskys sued, asking a federal judge to force the State Department to comply with the Congressional statute. The judge declined, ruling that the case raised a political question that was best left to the political branches of government to resolve. An appeals court agreed.

In taking up the case, the Supreme Court asked both parties to address the political question issue as well as whether the 2002 congressional statute violated the president’s authority to recognize foreign governments.

Both sides in the debate cite different sources of authority.

Washington lawyer Nathan Lewin, representing the Zivotofskys, told the justices on Monday Congress was acting under its power to regulate passports.

Solicitor General Donald Verrilli countered that the congressional action intrudes on the president’s authority to recognize foreign governments.

The underlying issue is highly emotional and freighted with historic and religious significance.

Israel has long claimed Jerusalem as its capital, but US diplomats – with an eye toward being honest brokers in Arab-Israeli peace talks – have declined to endorse the designation.

Instead, the State Department has maintained an official policy of neutrality over the ultimate jurisdiction of the city. Jerusalem is considered a sacred site to Christians, Jews, and Muslims, and US officials fear any perceived US policy change might spark a backlash among Muslims.

In the Muslim world, Jerusalem under an Israeli flag is a rallying cry, particularly among Islamic militants.

Mr. Lewin downplayed potential foreign policy fallout from the congressional mandate. “This gives the individual passport holder a choice,” he told the justices.

Lewin said the congressional directive would apply to 50,000 passports and would simply allow each passport holder to decide whether to self-identify with “Jerusalem” as a birth place, or “Israel.”

He said Congress has the authority to impose such restrictions on passports, including what the passport says.

“This is not in our view a recognition case,” he said. “This is a passport case.”

Lewin said there is no political question involved in the case. He said the courts must decide whether the statute is constitutional, and if it is constitutional, then the courts must enforce it.

“We live in a system under which Congress passes the law and the president has the duty to be the sole instrument of foreign policy,” Lewin said. “But when Congress disapproves of what he does … Congress prevails.”

Solicitor General Verrilli urged the court to find that the executive branch has exclusive power to recognize foreign governments and that the congressional directive infringes on that power.

Verrilli said the Jerusalem issue is “a very sensitive and delicate matter.”  He added: “This is an area in which the executive’s got to make the judgment because it’s of paramount importance that the nation speak with one voice.”

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