US Supreme Court appears split on landmark Jerusalem passport case

Justices apparently divided on historic question of whether it is constitutional to place "Israel" on passports of Jerusalem-born Americans.

November 3, 2014 19:48
2 minute read.
US passport

US passport [Illustrative]. (photo credit: INGIMAGE)

The US Supreme Court on Monday seemed divided on the question of whether it is constitutional to register “Israel” as the birthplace of Jerusalem-born Americans.

After Monday’s hearing on the issue, Menachem Zivotofsky, the boy on whose behalf the case was filed, told reporters, “I am an Israeli and I want people to know that I am glad that I am an Israeli, and that I am not embarrassed by the fact that I am an Israeli.”

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During a long-awaited onehour argument, the left-wing justices on the nine-member court – Ruth Bader-Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan – signaled support for the president’s position against placing “Israel” on US passports of citizens born in Jerusalem, while the right-wing judges – Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito – seemed more sympathetic to the position of Congress, that “Israel” should be placed on such passports.

Though the justices are not bound by their questions and comments at oral argument, their statements often hint at which way they are leaning.

Still, justices sometimes rule differently than their earlier statements would indicate, if the purpose of their statements was merely to focus on resolving a specific legal concern.

Justice Anthony Kennedy, often the court’s swing vote in close decisions, may find himself in that position in this case. He did not appear to commit clearly to either side.

He signaled some support for the president, saying that if the case rests on who gets to recognize a foreign government’s authority, the State Department “should be given deference.”

He mentioned, however, a possible compromise, suggested by some scholars, in which the 2002 US law requiring that “Jerusalem, Israel” be placed on the passports is enforced, but the government adds disclaimers saying the place of birth is not intended to recognize Israel’s sovereignty over the city – theoretically alleviating concerns that the policy change would be viewed as taking sides in the Israeli-Arab conflict.

The State Department has argued that if the court rules for Congress and upholds the law, “irreversible damage” could be caused to America’s power to influence the peace process.

The solicitor-general, who represents the president, has noted that US citizens born in other places in the region where sovereignty has not been established, including the West Bank and the Gaza Strip, are similarly prevented from stating a country of birth on their passports.

The case, Zivotofsky v. Kerry, has been winding through the US courts for years. The overall prediction has been that the Supreme Court will likely side with the president.

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

The basis of the policy has been to avoid taking sides in the Arab-Israeli conflict over the status of the city.

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

President George W. Bush ignored Congress, claiming it had interfered with his powers to direct foreign policy, and President Barack Obama has followed suit.

Zivitofsky was born in the capital in 2002. His parents sued, and along with a coalition of supporters have pushed the case through the courts to try to force the US president to comply with US law.

Reuters contributed to this story.

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