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Supreme Court takes up fight over US passports and 'Jerusalem'

State Department policy has been to designate the place of birth as “Jerusalem” – not “Israel” – in all passports for American newborns in that city in order to preserve US credibility as an honest broker in Arab-Israeli peace talks.

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    Ari Zivotofsky stands with his son, Menachem, outside the US Supreme Court in 2011. Menachem was born in Jerusalem and his parents want his US passport to list his place of birth as Israel.
    Evan Vucci/AP
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For more than 60 years the State Department has tried to walk a tenuous diplomatic line between Arabs and Israelis on the thorny issue of the future status of Jerusalem.

Israelis claim the city as their capital. Arabs insist it is occupied territory that must be surrendered.

The potentially explosive nature of the dispute burst into sharp focus in recent days with the attempted assassination of an Israeli activist seeking greater Jewish access to an area of the old city considered sacred to both Jews and Muslims. Security forces were on high alert this weekend.

Meanwhile, on Monday morning, the US Supreme Court is set to hear oral argument in a dispute between Congress and the White House over whether the parents of an American born in Jerusalem have a right to have their child’s passport identify the place of birth as “Israel.”

Long-standing State Department policy has been to designate the place of birth as “Jerusalem” in all passports for American newborns in that city.

The policy seeks to maintain American neutrality on the disputed status of Jerusalem and to preserve US credibility as an honest broker in Arab-Israeli peace talks.

Members of Congress don’t think much of the neutrality policy. In 2002, the House and Senate passed an amendment calling for the US government to recognize Jerusalem as the capital of Israel. It also commanded US consular officials in Jerusalem to start recording the place of birth for an American in Jerusalem as “Israel,” whenever that designation is requested by parents of the newborn.

Then-President George W. Bush objected to the changes and pledged in a signing statement not to enforce them. Nonetheless, he signed the measure into law.

As an exercise in neutral policymaking, the law features a serious flaw. It allows for a designation of “Israel” for those who want it, but it does not allow for a designation of “Palestine” for those US citizens who might want that recorded as their child’s place of birth. In that regard, the law chooses sides and represents a shift from neutrality to the pro-Israel position favored by Congress.

Not long after the law was passed, Ari and Naomi Zivotofsky, both US citizens, celebrated the birth of their son, Menachem Binyamin Zivotofsky in a west Jerusalem hospital.

When it came time to obtain the necessary documents recording their son’s birth, Mrs. Zivotofsky applied for a US passport for her son. In accord with the new statute, she asked that his place of birth be listed on the passport as “Israel.”

US consular officials denied the request. Since Menachem was born in Jerusalem, his passport lists the place of birth simply as Jerusalem.

The parents sued. They argued that consular officials were violating US law. The case bounced around in the courts for several years, including an earlier trip to the Supreme Court. Now the case is back at the Supreme Court for a final decision.

At the center of the case is the question of who gets to decide what information will be recorded in a US passport.

On the way to resolving that question, the justices are likely to say something important about the balance of power between Congress and the President in matters of diplomacy and passports.

Both sides in the case reach back into American history to provide the high court with examples of how similar disputes were resolved.

Twenty years ago, the passport of an American citizen born in Taiwan designated the place of birth as “China.”

The notation was consistent with US policy toward China, which claimed Taiwan as part of China.

In 1994, the policy changed. Congress passed a law, signed by President Clinton, that allowed US citizens born in Taiwan to list their place of birth as “Taiwan,” or “China.”

In defending the State Department policy on Jerusalem, US Solicitor General Donald Verrilli says any change in passport procedures would be seen internationally as a reversal of long-standing American policy on the status of Jerusalem.

“That change could significantly harm US national security interests and cause irreversible damage to the United States’ ability to facilitate the peace process,” Mr. Verrilli wrote in his brief.

The solicitor general argues that the president has “exclusive authority” to recognize foreign states and the territorial limits of their sovereignty.

“The Constitution makes no provision for the Congress to participate in recognition decisions, or to override the president’s decisions,” Verrilli said.

Nathan Lewin, a Washington appellate lawyer representing the Zivotofskys, says the president does not possess exclusive authority to recognize foreign governments.

The 2002 law is “well within Congress’ power to regulate the issuance and content of United States passports,” Mr. Lewin wrote in his brief.

He said the government’s concerns of harm to the US from any change in policy are overblown.

“This fear of unjustified and erroneous foreign misperception … cannot be sufficient to nullify the considered judgment of Congress,” he said.

Who wins the case, and how, could determine a lot more than just how to record a place of birth on a passport.

Lewin warns that a victory for the White House and against Congress could insulate a president from congressional checks and balances in matters of foreign policy. What if the president decided for foreign policy considerations to recognize Russia’s annexation of Crimea or decided to normalize relations with the government of Iran, Lewin asks in his brief.

“The Constitution and our system of balance-of-powers surely does not contemplate that such executive branch decisions are beyond review and revision by the Congress,” Lewin wrote.

The case is Zivotofsky v. Kerry (13-628). 

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