WASHINGTON — The Supreme Court declined Monday to insert itself into the middle of the Israeli-Palestinian conflict by second-guessing U.S. policy on Jerusalem.
Ruling just a few months after a feud between President Obama and Israeli Prime Minister Benjamin Netanyahu, the justices refused to allow Americans born in Jerusalem to have their passports changed to reflect Israel as their birthplace, as Congress demanded more than a decade ago.
In denying the challenge waged by the Jewish parents of a 12-year-old almost since his birth in 2002, a majority of justices heeded the State Department’s warning that a simple passport alteration could “provoke uproar throughout the Arab and Muslim world.”
Justice Anthony Kennedy wrote the 6-3 decision for the court, which needed more than seven months following oral arguments in early November to decide the congressional law was unconstitutional. It was the longest-pending high court decision.
“The power to recognize or decline to recognize a foreign state and its territorial bounds resides in the president alone,” Kennedy said, citing examples from the French Revolution in 1793 to President Jimmy Carter’s recognition of the People’s Republic of China in 1979.
“Recognition is an act with immediate and powerful significance for international relations, so the president’s position must be clear. Congress cannot require him to contradict his own statement regarding a determination of formal recognition.”
Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito dissented. They sided with Congress, which passed a law in 2002 allowing Americans born in Jerusalem to have Israel listed as their place of birth on their passports.
“Today’s decision is a first,” Roberts said. “Never before has this court accepted a president’s direct defiance of an act of Congress in the field of foreign affairs.” He said the court was bowing to fears that the congressional law could be
misinterpreted as changing U.S. foreign policy, rather than allowing citizens to define their place of birth.
Justice Clarence Thomas took a middle ground, agreeing that Congress cannot circumvent the president on passports, but arguing that the law can be applied to consular reports of birth abroad.
The status of Jerusalem has been at the top of the Israeli-Palestinian conflict ever since Israel was recognized in 1948. The official U.S. policy is spelled out 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 massive foreign relations law in 2002 that included a section stating 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.” However, Bush indicated he would ignore that provision as unconstitutional, and the Obama administration agrees.
The parents of young Menachem Binyamin Zivotofsky 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; about 50,000 U.S. citizens were born there.
But a majority of justices sided with U.S. Solicitor General Donald Verrilli, who warned in November that a ruling for the Zivotofskys would undermine the president’s authority to set policy for “the most vexing and volatile and difficult diplomatic issue that this country has faced for decades.”
While acknowledging that the Supreme Court plays no role in foreign affairs other than resolving cases like this one, Kennedy clearly expressed an opinion for the court’s majority. “Put simply, 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.
The court’s four liberal members — including its only three Jews — sided with the administration from the outset. During oral arguments, Justice Elena Kagan called the congressional act “a very selective vanity-plate law,” intimating it would not do the same if Palestinians born in Jerusalem wanted their passports to say “Palestine.”
But Scalia chided the State Department at the time for wanting to “make nice with the Palestinians.” In his dissent, 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. “A principle that the nation must have a single foreign policy, which elevates efficiency above the test and structure of the Constitution, will systematically favor the president at the expense of Congress.”
While most of the focus has been on Middle East policy, the court’s ruling also was important in answering a question never before 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 have lined up on that side of the debate.
During oral arguments, Kennedy had suggested a compromise in which passports listing Israel as the holder’s birthplace would specify that they did not represent a change in U.S. foreign policy.
That compromise did not materialize. Instead, the court produced 89 pages of opinions, concurrences and dissents that gave the president a significant victory at the expense of Congress.
(Richard Wolf writes for USA Today. )
