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Supreme Court Backs Obama in Jerusalem Passport Case

Americans born in Jerusalem still cannot claim Israel as their place of birth

Jas Chana and Jonathan Zalman
June 08, 2015
Thomas Coec/AFP/Getty Images
Jerusalem's Dome of the Rock, March 27, 2015. Thomas Coec/AFP/Getty Images
Thomas Coec/AFP/Getty Images
Jerusalem's Dome of the Rock, March 27, 2015. Thomas Coec/AFP/Getty Images

On Monday, the Supreme Court ruled that “Congress may not require the State Department to indicate in passports that Jerusalem is part of Israel,” reported the New York Times. The ruling effectively asserts that the Executive branch, and thus the Obama administration, has the power continue its policy “to recognize no state as having sovereignty over Jerusalem,” which has been in place “for the last 60 years,” reported CNN.

The ruling is bad news for Americans born in Jerusalem who desire to have the Jewish state listed as their place of birth on their passports.

The decision stems from a section of a law passed by Congress in 2002 (SEC. 214. of the Foreign Relations Authorization Act, Fiscal Year 2003, “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL”) which reads:

For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.

In 2002, President Bush signed the bill but decided that he would not abide by the Jerusalem provision because it “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs,” reported the New York Times.

“Caught in the middle was a 12-year-old boy, Menachem Zivotofsky,” reports CNN. “When he was born his parents sought to have “Israel” listed on his U.S. passport as his place of birth pursuant to a federal law. But the State Department refused.”

“I’m an Israeli, and I want people to know that I’m glad to be an Israeli,” he said.

The Obama administration—continuing Bush’s policy—has followed suit, rejecting the provision on the grounds that “the status of Jerusalem should be resolved by negotiations between Arabs and Israelis.”

The Supreme Court voted 6-3 on the matter, with Chief Justice John Roberts, Justice Antonin Scalia and Justice Samuel Alito dissenting. CNN reports:

Kennedy said that the President has the exclusive power to grant formal recognition to a foreign sovereign and said that the law infringes on the Executive’s “consistent” decision to withhold recognition with respect to Jerusalem.

Reported Politico: “Placing Israel on Zivotofsky’s passport, Justice Kennedy—along with Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer and Clarence Thomas—opined, amounted to recognizing Jerusalem as under the sovereignty of Israel, violating the executive branch’s exclusive authority to recognize foreign governments.”

“Congress cannot command the President to contradict an earlier recognition determination in the issuance of passports,” they wrote, despite certain authorities the legislature may have over the issuance of passports.

But Roberts said, “Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.”

Roberts said “the statue at issue does not implicate recognition” but “simply gives an American citizen born in Jerusalem the option to designate his place of birth as Israel for the purposes of passports and other documents.”

The city of Jerusalem is the religious epicenter for Muslims, Christians and Jews. Israelis and Palestinians share the belief that the city is their own; the United Nations has sided with the latter. Thus, despite Menachem Zivotofsky’s simple desire for a place to claim as his home country, his case has become unavoidably entrenched in one of the most complex and contentious diplomatic situations in the world today.