Rubber-stamp on passport policy
High court: U.S. IDs must say ‘Jerusalem,’ not ‘Israel,’ ‘Jordan’
The status of Jerusalem has been at the top of the Israeli-Palestinian conflict ever since Israel was recognized in 1948. On Monday, the Supreme Court refused to stumble into the middle of it.
Recognizing that foreign policy more properly belongs in the hands of the federal government’s other two branches, a majority of justices sided with the Obama administration. They took heed of U.S. Solicitor General Donald Verrilli, who warned in November that allowing “Israel” to replace the more neutral “Jerusalem” on U.S. passports would undermine the president’s authority to deal with “the most vexing and volatile and difficult diplomatic issue that this country has faced for decades.”
While acknowledging that the Supreme Court has no clout in foreign affairs other than resolving cases like the one brought by the parents of Menachem Binjamin Zivotofsky, 12, Justice Anthony Kennedy expressed an opinion for the court’s majority.
“The nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not,” he wrote.
U.S. policy is outlined in a State Department manual: “For a person born in Jerusalem, write JERUSALEM as the place of birth in the passport. Do not write Israel, Jordan or West Bank.”
President George W. Bush signed a foreign relations law in 2002 that included a section stat- ing that for Americans born in Jerusalem, “the secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” But Bush indicated he would ignore that provision as unconstitutional, and the Obama administration agrees.
Zivotofsky’s parents began their legal battle later that year. Had they won, it could have led to a long line of other Jerusalem natives seeking to change their passports.
The court’s four liberal members, including its three Jews, sided with the administration. During oral arguments, Justice Elena Kagan called the congressional act “a very selective vanityplate law,” intimating the court would not consider changing U.S. policy if Palestinians born in Jerusalem wanted their passports to say “Palestine.”
But Justice Antonin Scalia chided the State Department for wanting to “make nice with the Palestinians.” In his dissent Monday, he said the balance of power issue between the president and Congress is far more important than Zivotofsky’s passport and that of others born in Jerusalem.
“The text and structure of the Constitution divide responsibility for foreign policy, like responsibility for just about everything else, between the two coordinate, equal political branches,” he said from the bench.
While most of the focus has been on Middle East policy, the ruling also was important in answering a question never resolved in the nation’s history: Which branch of government gets to recognize foreign countries?
The Zivotofskys’ supporters, including most major Jewish groups, contended that Jerusalem is the capital of Israel and that Congress, not the president, has the upper hand when it comes to immigration, naturalization and passport policies.
The administration’s supporters said Jerusalem is the most delicate issue in the world’s most intractable dispute, and that only presidents have the power to recognize sovereign nations. Arab groups lined up on that side of the debate.