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.
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They weren’t alone in their opinion. In 2002, Congress attached a provision to the foreign relations budget requiring US officials to list Israel as the place of birth for US citizens born in Jerusalem whenever the citizen or a legal guardian requested such a listing.Skip to next paragraph
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That’s precisely what Mrs. Zivotofsky had done.
Although the president signed the foreign relations budget bill into law, his signature included a signing statement declaring the Jerusalem provision unconstitutional. In the statement, then-President George W. Bush said the law 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.”
The law set up a direct conflict between executive branch regulations stemming from long-standing US foreign policy concerns and a federal law reflecting congressional opposition to US policy as it relates to the disputed status of Jerusalem.
A federal judge threw the Zivotofsky’s lawsuit out, saying it raised a political issue unsuited to judicial resolution and best left to the political branches. A federal appeals court panel agreed.
In sending the case back to the lower courts, the chief justice said the courts were able to resolve the dispute.
“This case does not turn on standards that defy judicial application,” Roberts said. “Resolution of Zivotofsky’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and the passport and recognition powers,” the chief justice said. “This is what courts do.”
In a dissent, Justice Stephen Breyer said that for “prudential reasons” he would leave the resolution of the dispute to the political branches. He said there was a significant risk that judicial involvement in the case might disrupt foreign policy decision-making, show lack of respect for other branches of government, and bring about “embarrassment.”
“I would hold that the political question doctrine bars further judicial consideration of this case,” Justice Breyer wrote.
In his majority opinion, Roberts quoted the 1803 decision in Marbury v. Madison. “It is emphatically the province and duty of the judicial department to say what the law is,” he wrote.
Roberts added: “That duty will sometimes involve the resolution of litigation challenging the constitutional authority of one of the three branches, but courts cannot avoid their responsibility merely because the issues have political implications.”
The decision came as the high court prepared to hear oral argument on Tuesday in a case testing the constitutionality of President Obama’s health-care reform law.
The election-year showdown at the high court could have political implications for the president. In addition, the case will examine whether Congress overstepped its authority in enacting a statute that orders every American to purchase a government-approved level of health care or pay a penalty.
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