US Supreme Court to end decade long drama on Jerusalem passport case

The Justices will determine whether “Israel” can appear on U.S. issued passports of Americans that were born in Israel’s capital.



The US Supreme Court is expected on Monday to make its final historic decision on whether Americans born in Jerusalem can have “Israel” written on their passports as their place of birth.

US Passport - Photo: IsraelandStuff/PP

US Passport – Photo: IsraelandStuff/PP

The case, Zivotofsky v. Kerry, has been winding through the US courts for years with major setback decisions followed by unexpected decisions putting the case back on track.

The policy of the US, both under Republican and Democratic presidents, since the founding of the State of Israel has been that passports of Americans born in Jerusalem will read merely “Jerusalem” as place of birth, not “Israel.”

The basis of the policy has been to avoid taking sides in the ongoing Arab-Israeli conflict over the status of Jerusalem, including the various competing claims – this despite the state’s annexation of Jerusalem decades ago.

But in 2002, the US Congress passed the Foreign Relations Authorization Act which require the US government to place “Jerusalem, Israel” as the place of birth for Jerusalem-born US citizens.

Former US President George W. Bush ignored Congress, claiming it had interfered with his powers to direct foreign policy on the issue of if or when to recognize foreign countries’ claims to land, and US President Barack Obama has followed suit.

The parents of Menachem Zivitofsky, also born in 2002, sued, and along with a coalition of supporters have pushed the case through the courts to try to force the US president’s hand and to comply with the Congressional law.

In 2011 the US District of Columbia Appeals Court declined to even give a position on the dispute, saying that it had to defer to the executive at the outset since the issue involved foreign policy, which court’s stay away from.

The US Supreme Court intervened and ordered the appeals court to revisit the issue and analyze the merits of both sides’ arguments.

In revisiting the issue in July 2013, the same appeals court declared the 2002 law unconstitutional, taking the president’s side that Congress had overreached into foreign policy areas controlled by the executive branch.

In April, the US Supreme Court agreed to hear the Zivotofsky family’s appeal of the appeals court’s second rejection of its case – and its final decision on that final appeal is what is expected Monday.

The overall prediction is that despite saving the case on an interim basis twice, that the US Supreme Court will likely side with the president.

The arguments for this side start with the idea that Congress unconstitutionally infringed on the power of the US President to decide what foreign countries to recognize and under what terms.

Or put differently, the pro-president camp says the court should rule that because the President controls foreign policy about whether Jerusalem will be viewed as formally part of Israel or not, pending any resolution of the Arab-Israeli conflict and the fulfillment of UN Resolution 242 which governs negotiations – he also gets the last say on what appears under the entry for country for a birth in Jerusalem on a passport.

They attack the idea that Congress has a role in this area by virtue over its wide-ranging “necessary and proper” or “commerce” powers, saying that the problem with separating out the powers is that the actual registration is performed through the US State Department, an office controlled by the president.

They say that traditionally, at most Congress can perform oversight and threaten to withhold funding to negotiate the president into accepting portions of Congressional goals.

Most importantly, they say that changing the policy would profoundly negatively affect US foreign policy interests as it would massively anger US allies in the Middle East and elsewhere as having taken Israel’s side on the broader Jerusalem issue.

The Zivotofsky pro-Congress camp argues that both the president and Congress have always shared “measures” of foreign policy power, with Congress controlling funding, for example.

They argue that the US Supreme Court has pushed back again presidential claims of exclusive power in a number of areas, some overlapping with foreign policy.

Many also point out that simply allowing writing Jerusalem, Israel on the passports of a group of individuals does not in any way push the US as a country to recognize Jerusalem as Israel’s capital, with some even arguing that the US could even write a disclaimer next to the Jerusalem, Israel part making it clear that the words did not signify formal recognition.

Others have said that the president has exaggerated the potential fallout from any change in the passports, stating that the Palestinians have not even filed a brief against the policy chance and that any fallout would be superficial and short-term once countries realized the US was not formally recognizing Jerusalem.

The two sides also debate whether the purpose of the law is to influence the president’s policy of not recognizing Jerusalem as Israel’s capital and whether it should matter whether that is the sole purpose or one of a range of purposes.

After the court’s decision there can be no further appeal.

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