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The U.S. Supreme Court on Monday struck down a law that would let American citizens born in Jerusalem have Israel listed in passports as their country of birth, saying it encroached on the president’s exclusive power to recognize foreign governments.
The 6-3 ruling, a victory for President Barack Obama, comes at a time of strained relations between Israel and the United States, the Jewish state’s most important ally. The Obama administration had said if the law were enforced it would have caused “irreversible damage” to America’s ability to influence the region’s peace process and reversed long-standing American policy not to recognize Jerusalem as part of Israel.
Writing for the court in an important ruling on separation of powers within the U.S. government, Kennedy said the U.S. Congress, which enacted the law in 2002, has a role to play in foreign policy but cannot make decisions on recognizing foreign governments. The U.S. Constitution makes that the president’s “exclusive power,” Kennedy wrote.
Congress passed the law when President George W. Bush was president. Neither his administration nor Obama’s ever enforced it. While Israel calls Jerusalem its capital, few other countries accept that. Most, including the United States, maintain embassies in Tel Aviv. “Congress cannot command the president to contradict an earlier recognition determination in the issuance of passports,” added Kennedy, a conservative who often holds the key vote in close cases.
Ari and Naomi Zivotofsky, the American parents of now-12-year-old Menachem Zivotofsky, had waged a long court battle to have their son’s U.S. passport state he was born in Israel. The case touched upon what Kennedy called the “delicate subject” of Jerusalem’s status. The city, considered holy to Jews, Muslims and Christians, is claimed by both Israelis and Palestinians and has been a point of contention in the Middle East for decades.
Seeking to remain neutral on the issue of sovereignty over Jerusalem, the State Department allows passports to name the city as the place of birth, with no country name included. The ruling means Menachem Zivotofsky’s passport will simply list “Jerusalem” as his birthplace. The court was divided. Its four liberals joined Kennedy in the majority. Conservative Clarence Thomas agreed with the outcome but differed over the legal rationale. The other conservatives, John Roberts, Antonin Scalia and Samuel Alito, dissented, saying the law did not involve recognition of a foreign government.
“Never before has this court accepted a president’s direct defiance of an act of Congress in the field of foreign affairs,” Chief Justice Roberts wrote in dissent. The ruling, Scalia added, “will erode the structure of equal and separated powers that the people established for the protection of their liberty.” U.S. State Department spokesman Jeff Rathke said the ruling “confirms the long-established authority of the president over the conduct of diplomacy and foreign policy.”
Lawyers for the Zivotofsky family, Nathan and Alyza Lewin, expressed disappointment in a ruling they said highlights the “central fallacy” in the attitudes of U.S. presidents since Israel’s founding in 1948. “Presidents have been permitted by American public opinion to maintain, as American foreign policy, the absurd position that no country is sovereign over Jerusalem, and that no part of the city, including the western portion of Jerusalem, is in Israel,” they said.
Nabil Abu Rdaineh, spokesman for Palestinian President Mahmoud Abbas, hailed the “important decision” that runs in accord with U.N. resolutions, adding, “This is a clear message that Israel occupies East Jerusalem as well as the West Bank and Gaza Strip.” Palestinians want East Jerusalem, captured by Israel in a 1967 war, as capital of the state they aim to establish alongside Israel in the West Bank and Gaza Strip.
Zev Elkin, an Israeli cabinet minister with responsibility for Jerusalem, said in remarks carried by the website of the Maariv newspaper: “United Jerusalem is the capital of the state of the Jews, the state of Israel, and will remain so forever.” Elkin called on the Obama administration “to recognize a simple fact that is the cornerstone of Jewish tradition and of Christian tradition: Jerusalem is the heart of hearts of the land of Israel, and the eternal capital of the state of Israel.”
An estimated 50,000 American citizens were born in Jerusalem and could, if they requested it, list Israel as their birthplace if the law had been enforced. Kennedy said the ruling’s scope was limited to a president’s power to recognize foreign governments. But some experts said it could have a broader impact on disputes between the White House and Congress on other foreign policy issues.
“In effect, its real precedential value will be behind closed doors, where it will put a substantial thumb on the scale in favor of the president in cases in which the political branches disagree on a fundamental question of foreign policy,” American University Washington College of Law professor Steve Vladeck said.