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 marked a victory for U.S. President Barack Obama. The Obama administration had said if the law were enforced it would have caused "irreversible damage" to America's ability to influence the Israeli-Palestinian peace process and reversed long-standing American policy not to recognize Jerusalem as part of Israel. 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. An estimated 50,000 American citizens were born in Jerusalem and could have, if they had requested it, listed Israel as their birthplace if the law had been enforced. "Congress cannot command the president to contradict an earlier recognition determination in the issuance of passports," said 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 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." Rathke added, "This decision today helps ensure that our position on the neutrality of Jerusalem remains clear." 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. 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. Ari Zivotofsky told Israel Hayom, "We are truly disappointed and surprised. The ruling is significant, because it reveals U.S. policy -- it doesn't consider even west Jerusalem to be part of Israel. It greatly disturbs us that the U.S. does not recognize Jerusalem as part of Israel." The ruling also drew negative reactions in Israel. The Prime Minister's Office did not issue a statement on it, but Jerusalem Affairs Minister Zeev Elkin (Likud) said, "United Jerusalem is the capital of Israel, and will remain so forever. I call on the [Obama administration] to adopt the congressional legislation a simple fact that is the cornerstone of Jewish heritage." Deputy Defense Minister Eli Ben-Dahan (Habayit Hayehudi), a resident of Jerusalem's Har Homa neighborhood, said, "United Jerusalem is the eternal capital of the Jewish people and the center of the world, this is how it's been and this is how it will remain." Jerusalem Mayor Nir Barkat said, "Just like Washington is the capital of the U.S. and Paris is the capital of France, Jerusalem has been and will always be the capital of Israel." American Jewish groups also expressed their dissatisfaction with the ruling. Nathan Diament, executive director of the Orthodox Union, said, "We are, of course, disappointed by today's ruling by the Supreme Court. But we are more disappointed by the persistent policy of the United States government -- carried out by successive presidents -- to treat the capital city of Israel with less respect than that accorded to capital cities of virtually every other nation." Abe Foxman, the head of the Anti-Defamation League, said, "It is sad and unfortunate that Israel -- as a sovereign nation -- is the only country in the world whose capital comes under such scrutiny and has to defend its right to determine where its capital city exists." On the other hand, Palestinian officials praised the ruling, with chief Palestinian Authority negotiator Saeb Erekat calling it a "very important decision." Erekat said, "It is a clear message to the Israeli government that its decisions and measures in occupying and annexing Jerusalem are illegal and void, and that it should immediately stop these measures because it's a clear violation of the international law." U.S. Ambassador to Israel Dan Shapiro also commented on the ruling, saying, "The decision was not about whether Jerusalem is Israel's capital. It was solely about the separation of powers between the executive branch (the president) and the legislative branch (the Congress) of our government, and which branch has the right to recognize foreign governments and their capitals. ... U.S. policy on Jerusalem was not decided by today's ruling. That policy has been the same under every administration since 1948 -- namely, that the status of Jerusalem has not been decided and must be determined by negotiations."
Credit: Reuters
Writing for the court in an important ruling on separation of powers within the U.S. government, Justice Anthony 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.
