A splintered US Supreme Court grappled on Monday with the thorny question of whether Congress exceeded its authority when it passed a law permitting the passport of an American citizen born in Jerusalem to reflect that the child had been born in Israel.
Long-standing US foreign policy has been to maintain strict neutrality over the disputed status of Jerusalem. Under this policy, the passport of a citizen born in the city shows the place of birth simply as “Jerusalem,” with no mention of Israel or Palestine.
In 2002, Congress sought to change that, in part by passing a law that gives the parents of US citizens born in Jerusalem the option of having the place of birth listed as “Israel.”
The provision was part of a bill designed to encourage the US government to jettison its neutral policy and recognize Jerusalem as the capital of Israel.
The White House objected and refused to enforce the law.
Shortly after the law was enacted, Menachem Zivotofsky was born in Jerusalem to American parents. When they applied for a passport for their son, they asked that it reflect the place of birth as “Israel.”
Consular officials denied the request, listing “Jerusalem” instead.
The Zivotofskys sued, arguing that the executive branch of government was ignoring a valid law passed by the legislature.
Now the issue is before the Supreme Court, where the justices must decide whether Congress was operating within the scope of its constitutional authority or interfering in the president’s exclusive power to recognize foreign governments and speak with a single voice in foreign affairs.
“The question of the status of Jerusalem is the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades,” US Solicitor General Donald Verrilli told the justices during the hour-long argument.
He warned that if the court upheld the law, it would sharply undercut the credibility of the president and of the ability of American diplomats to serve as honest brokers in Mideast peace efforts.
“Foreign governments, foreign peoples will not be able to have complete confidence that the position that the president announces on behalf of the United States is, in fact, the position of the United States,” Mr. Verrilli said.
In urging the justices to uphold the statute, Washington appellate lawyer Alyza Lewin said the passport requirement does not amount to a formal recognition of sovereignty over Jerusalem by Israel.
The law merely gives parents a choice of whether they want their child’s passport to reflect birth in Jerusalem or in Israel, she said. It is an opportunity to “self identify” with Israel rather than an act of US government diplomacy.
“What goes on a passport as a place of birth is not tantamount to recognizing foreign sovereignty,” she said.
Several of the justices appeared to be searching for a way to resolve the case without delving into matters of the Constitution’s separation of powers.
Justice Anthony Kennedy repeatedly asked if passports couldn’t come with a disclaimer announcing that the listed place of birth does not reflect a change of US neutrality on the status of Jerusalem.
Lewin said such a disclaimer would pose no problem. But Verrilli objected. He said it would undermine the credibility of the president.
Justice Stephen Breyer wanted to know why he shouldn’t defer to the expertise of diplomats at the State Department who urge continued adherence to neutrality.
“I’m a judge,” Justice Breyer said. “I’m not a foreign affairs expert.”
Justice Elena Kagan suggested that the US Government would not allow the parents of a US citizen born in Northern Ireland to list “Ireland” as the place of birth even though that might be their preference.
“This is a very selective vanity plate law,” she said, comparing the passport issue to drivers seeking to display messages on their car registration tags.
Antonin Scalia exhibited the friendliest posture toward Ms. Lewin and her defense of congressional power despite tense foreign policy implications.
“If it is within Congress’s power, what difference does it make that it might antagonize foreign countries?” Justice Scalia asked the solicitor general.
Verrilli responded that there are areas within Congress’s power that could antagonize foreign countries that, nonetheless, wouldn’t raise separation of powers problems.
“And this may be one of them,” Scalia shot back.
Verrilli mentioned a trade embargo or a travel ban. But he said the Jerusalem passport issue was different.
“The mere fact that it upsets foreign relations doesn’t prove a thing,” Scalia said.
“The critical point,” Verrilli replied, “is that what this statute does that those other statutes don’t do is it requires the executive branch, the president himself and the executive branch itself, to communicate a message that contradicts the official recognition position of the United States.”
And that, he said, undermines the president’s credibility and prevents him from speaking on behalf of the nation with one voice.
A decision is expected by next June.
The case is Zivotofsky v. Kerry (13-628).