Supreme Court wrestles with sticky Jerusalem passport case
WASHINGTON -- In a dispute that evokes Arab-Israeli tensions and important divisions of federal power, Supreme Court justices voiced doubt Monday that Congress could override the president and require U.S. passports of children born in Jerusalem to list the place of birth as Israel.
For more than six decades, since the 1948 creation of the state of Israel, the U.S. government has declined to recognize any country as having sovereignty over Jerusalem. State Department policy dictates that the passports of children of American citizens born in Jerusalem say only "Jerusalem" for place of birth.
Justice Department lawyers say accepting Jerusalem as the sovereign territory of Israel "would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process."
The legal case began when Congress, as part of a larger foreign relations measure, in 2002 directed the secretary of State to record Israel as a place of birth if a citizen or his guardian wants it. Soon after, the American parents of Menachem Binyamin Zivotofsky, born on Oct. 17, 2002, in Jerusalem, sought to have Israel indicated on his U.S. passport.
State Department officials refused, based on long-standing policy, and the parents sued on their son's behalf. Lower federal court judges rejected the claim on grounds that it was a "political question" over which they lacked authority.
Taking up an appeal from the boy and his parents Monday, several justices seemed ready to side with the Obama administration that Congress was treading on executive power when it sought the "Israel" designation on passports. (President Bush had signed the sweeping foreign-relations authorization act that contained the disputed passport provision, but he issued a statement saying the provision "interferes with the president's constitutional authority to conduct the nation's foreign affairs.")
Justice Sonia Sotomayor suggested Congress was "hobbling the president" on foreign policy. Justice Anthony Kennedy said the lawyer for Menachem, now 9 years old, was arguing for a "crabbed interpretation" of the president's foreign affairs power.
Justice Kennedy separately told U.S. Solicitor General Donald Verrilli, "It's always awkward for us to tell counsel what's in their best interests, but it does seem to me that your position would be much stronger if you said there is jurisdiction (for the court) and the president wins."
Verrilli asked the justices not to intervene in the "political" matter but alternatively the court could find that Congress unconstitutionally encroached on the president's authority. Verrilli said the president has the exclusive power to recognize foreign sovereigns and the related content of passports.
"I do think that this is an area in which the executive's got to make the judgment, because it's of paramount importance that the nation speak with one voice," he told the justices.
Washington lawyer Nathan Lewin, representing the Zivotofsky family, stressed that Congress had used in the 2002 provision its power over passports, which flows from congressional authority on immigration matters.
"Congress has decided that saying 'Israel' alone does not present a foreign policy issue," Lewin said, and emphasized that the law "is, on its face, a passport statute."
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