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Supreme Court orders judicial solution to Congress-State dispute on Jerusalem

Is Jerusalem part of Israel? In a case concerning a US citizen's birth certificate, the Supreme Court said a federal court should rule on an issue that has divided Congress and the State Department. 

By Staff writer / March 26, 2012


Federal courts are fully capable of resolving a bitter clash between the executive branch and Congress over the disputed status of Jerusalem, the US Supreme Court ruled on Monday.

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The high court voted 8 to 1 to reject a decision by a federal appeals court in Washington that the highly emotional foreign policy dispute was best resolved by the political branches of government – rather than by unelected federal judges.

At issue in the case is whether Congress overstepped its authority when it passed a law instructing the US State Department to list Israel as the birthplace for American citizens born in Jerusalem.

The law is in direct conflict with a long-held State Department policy that the passports of Americans born in Jerusalem list the place of birth as simply “Jerusalem,” to avoid a false suggestion that US policy had changed concerning the disputed status of the city.

The lower courts had declined to wade into the diplomatic morass. But on Monday, the Supreme Court told the federal judiciary, in effect, to man-up.

“The courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the executive by the Constitution,” Chief Justice John Roberts wrote in the 12-page majority opinion.

The justices vacated the appeals court decision and remanded the case back to the lower courts for a trial. “The only real question for the courts is whether the statute is constitutional,” Chief Justice Roberts wrote.

The case, Menachem Binyamin Zivotofsky v. Clinton (10-699), is a showdown between competing claims to power over US foreign policy, with the legislative branch embracing an approach that heavily favors Israel on the Jerusalem question, and the executive branch maintaining the US government’s longstanding neutrality on the future status of the holy city.

The clash of governmental titans came to a head in a lawsuit filed by Menachem Zivotofsky’s parents. The young Mr. Zivotofsky was born in 2002 in Jerusalem to Naomi and Ari.

Since both parents are US citizens, Menachem is also a US citizen.

The dispute arose when Mrs. Zivotofsky sought to obtain a US passport and overseas US birth certificate for her son. She asked that the documents reflect that her son was born in Israel.

US officials refused. Had her son been born in Tel Aviv or Haifa, Israel would be the listed place of birth. But the status of Jerusalem is in dispute with Israel claiming the entire city as its capital and the Palestinians claiming the eastern half of the city as part of Palestine.

The Zivotoskys objected to having Jerusalem listed as the birthplace. As far as they were concerned their son was born in Israel and his birth documents should reflect that fact. They weren’t much concerned with the possibility of complicating US foreign policy toward the Arab and Islamic world.


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