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Other Supreme Court Decides Jerusalem Case

Rules that federal judiciary may mediate Congress-president feud

Marc Tracy
March 26, 2012

In a 8-1 ruling (Justice Stephen Breyer was the lone dissenter) penned by Chief Justice John Roberts, the U.S. Supreme Court—primarily in the news today because it’s hearing a challenge regarding the health care law signed by President Obama—ruled that federal courts may indeed make rulings related to a 2003 law mandating that Israel be listed as the birthplace of American citizens born in Jerusalem on their passports. Some, including both this administration and the previous one (President Bush signed that law while clarifying that he would ignore that part of it), have argued that this instruction oversteps the legislature’s bounds because it is a question of foreign policy, which the Constitution delegates to the executive branch.

Today, the Supreme Court disagreed. Well, sort of. It ruled not that the law is kosher, but that federal courts may decide whether it is. “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,” the court ruled. What was it Hamlet complained about? It was either “the law’s sublime clarity and speed and fairness” or “the law’s delay,” and for the life of me I can’t remember which.

Daniel Halper reported last year that the case was brought by Menachem Binyamin Zivotofsky, a nine-year-old born in Jerusalem to two Americans. “Despite the popularity of the petitioner’s position, the government will likely win this case,” Halper predicted. The Court, he added, “will avoid getting involved in an intra-government squabble between Congress and the White House.” That was the consensus take, and so the ruling to day comes as a surprise, if a pleasant one to some groups (the Orthodox Union had the earliest and warmest greeting of the ruling that I’ve seen: “Congressional policy on Jerusalem, ignored by successive administrations, will get its day in court”). Now it goes back to the lower districts, and we get to do this all over again.

Marc Tracy is a staff writer at The New Republic, and was previously a staff writer at Tablet. He tweets @marcatracy.

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