Supreme Court Gives Power to President in Jerusalem Passport Case

— -- In a Supreme Court case that pitted the authority of the president against that of Congress, the presidency won.

At the heart of the case, Zivotofsky v. Kerry, was the question of whether Congress can override the executive branch on foreign policy issues like recognizing foreign nations.

It involves the parents of Menachem Zivotofsky, born in Jerusalem in 2002. His parents wanted his birthplace to be designated as “Israel” on his passport, but the State Department refused because the United States does not recognize Jerusalem to be under the control of any sovereign nation, as both Israel and the Palestinians lay claim to the disputed city.

Seeking to circumvent that State Department rule, Congress that same year passed a law allowing Jerusalem-born Americans to have their birthplace listed as Israel. President George W. Bush signed the law but added to it that “U.S. policy towards Jerusalem has not changed,” and the State Department did not start adding Israel to Jerusalem passports.

The Zivotofsky family sued to enforce the law, which is how the case ultimately ended up at the Supreme Court.

Monday’s majority opinion, written by Justice Anthony Kennedy, surveyed constitutional text and structure, case law, and historical practice dating back to the French Revolution, and concluded that Congress lacked the constitutional authority to direct the President to issue passports containing language in direct conflict with his foreign policy determination.

“The Court does not question the substantial powers of Congress over foreign affairs in general or passports in particular,” but “Congress cannot command the President to contradict an earlier recognition determination in the issuance of passports,” Kennedy wrote.

Because the majority was careful to avoid saying anything substantive about the status of Jerusalem, and because this is a win for the institutional presidency rather than for President Obama, the case will likely remain more meaningful for Constitutional scholars than those concerned with the status of Jerusalem.