After years of litigation, the Supreme Court on Monday said it would decide if Congress or the State Department has the final say in whether U.S. passports acknowledge Yerushalayim as part of Israel.
This touches on one of the most sensitive issues in decades of Middle East conflict, and the case also presents a major separation-of-power conflict between the legislative and executive branches.
The controversy is over a 2002 law passed by Congress regarding passports. It says that a U.S. citizen born in Jerusalem may request his or her birthplace to be listed as Israel. This was an attempt to nullify State Department instructions that only “Jerusalem” be listed, a recognition of the official U.S. policy of neutrality over national sovereignty of the holy city.
The directive was inserted into a broader spending bill that President George W. Bush signed, even as he announced that his administration would not carry out Congress’s passport dictate. The Obama administration has adopted the same view: that Congress was intruding on the executive’s responsibility for making the nation’s foreign policy.
The case was brought by Ari and Naomi Zivotofsky , U.S. citizens whose son, Menachem Binyamin, was born in a western Jerusalem hospital in 2002. They want the boy’s passport to say he was born in Israel.
“All that happens with this statute is that 50,000 American citizens have the same passport as 100,000 other American citizens who were born in Tel Aviv or Haifa,” the couple’s attorney, Nathan Lewin, told the Supreme Court in 2011, the first time the court considered the statute. “It just says ‘Israel.’ It doesn’t say ‘Jerusalem, Israel.’ ”
At that time, the justices were considering a lower court decision that said the issue was a “political question” that was not open to judicial review but must be worked out between the two other branches of government.
In the case, the Supreme Court ruled 8 to 1 that this view was wrong and sent it back to lower courts. On remand, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of the executive branch.
U.S. Solicitor General Donald B. Verrilli Jr. had told the justices there was no reason to review the decision of the court of appeals. The ruling, he said, allows the executive branch to continue its “longstanding practice of refraining from taking any official action that could constitute, or be interpreted as, recognition of any foreign government’s sovereignty over Jerusalem.”
As is customary, the justices on Monday did not comment on the decision to review the case, Zivotofsky v. Kerry. It will be heard in the term that begins in October.
Read more at The Washington Post.