In a major blow to a 13-year-old effort to bolster Jerusalem’s status under American law as an undisputed part of Israel, the US Supreme Court on Monday struck down as unconstitutional a congressional law that authorized placing “Israel” on passports of Jerusalem-born Americans.
The 6-3 ruling was a victory for the administration of US President Barack Obama, which said the law unlawfully encroached on the president’s power to set foreign policy and would, if enforced, undermine the US government’s claim to be a neutral peacemaker in the Middle East.
Liberal justices Ruth Bader- Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan combined with swing justice Anthony Kennedy and generally highly conservative justice Clarence Thomas for the majority against justices John Roberts, Antonin Scalia, and Samuel Alito.
Kennedy’s majority opinion was based mainly on the idea that only the president has the power to recognize claims regarding sovereignty, and that the passport issue falls within the presidential prerogative.
But Scalia took the majority to task, saying its interpretation that putting the word Jerusalem on individual passport documents was tantamount to recognition of Israeli claims over the city was a “leap worthy of the Mad Hatter.”
Israel had no formal response to the decision, with Foreign Ministry spokesman Emmanuel Nahshon saying that Israel does not relate in the media to US court decisions.
Jerusalem Mayor Nir Barkat responded by saying, “Just as Washington is the capital of the US, London is the capital of England, and Paris is the capital of France, Jerusalem was and will always be the capital of Israel – but more than that, it’s the heart and soul of the Jewish nation.”
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Barkat called on Obama to recognize Jerusalem as Israel’s capital immediately, especially in light of the global boycotting faced by the country.
Nathan Diament, executive director for public policy of the Orthodox Union, stated: “We are, of course, disappointed by today’s ruling by the Supreme Court. But we are more disappointed by the persistent policy of the United States government – carried out by successive presidents – to treat the capital city of Israel with less respect than that accorded to capital cities of virtually every other nation. Jerusalem is unquestionably the capital of Israel... it is high time for the US administration to acknowledge the reality of Israel’s capital – Jerusalem.”
When the court heard the oral argument on the issue in November 2014, it appeared split on the historic question of whether it is constitutional to place “Israel” on passports of Jerusalem-born Americans.
After the court hearing, 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.”
The case, Zivotofsky vs Kerry, has been winding through the US courts for years. US policy, 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 reunification of the city 67 years ago.
In 2002, Congress passed the Foreign Relations Authorization Act, which requires the US government to place “Jerusalem, Israel” as the place of birth for Jerusalem-born US citizens.
Former president George W. Bush ignored Congress, claiming it had interfered with his powers to direct foreign policy on the issue of recognizing foreign countries’ claims to land, and President Barack Obama has followed suit.
The parents of Menachem Zivotofsky and a coalition of supporters have pushed the case through the courts to try to force the president’s hand and to comply with the congressional law.
In 2011, the 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 courts stay away from.
The 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 2014, the Supreme Court agreed to hear the Zivotofsky family’s appeal of the appelate court’s second rejection of its case – and its final rejection of that final appeal came Monday.
Scalia gave the example of the US allowing Northern Irish persons to put Belfast on their passports instead of the United Kingdom. He said this did not mean the US rejected British sovereignty over Northern Ireland, but merely recognized some ambiguity in individual identity decisions on passport documents.
The State Department had argued that if the court ruled for Congress and upheld the law, “irreversible damage” could be caused to America’s power to influence the region’s peace process, and an uproar could be provoked throughout the region.
The Solicitor-General, who represents the president, had said that US citizens born in other places 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.Herb Keinon and Reuters contributed to this report.
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