Jerusalem-Born American Thrusts Court Into Mideast Debate

By Greg Stohr  

A clash centering on Americans born in Jerusalem puts the U.S. Supreme Court in the middle of one of the most delicate issues in international diplomacy.
The justices today will hear arguments in a case that the Obama administration says could “provoke uproar throughout the Arab and Muslim world.” At issue is a federal law that would let as many as 50,000 Jerusalem-born U.S. citizens have passports designating their place of birth as Israel.
The administration says the 2002 law encroaches on the president’s constitutional powers and undermines a longstanding State Department policy of taking no position on Jerusalem’s status. Palestinians claim the city’s eastern part as a future capital.
“Doubt that the United States remains committed to negotiations on Jerusalem’s status would only deepen” with a ruling upholding the law, U.S. Solicitor General Donald
Verrilli told the justices in court papers.
The case comes at an especially tense time for U.S.-Israeli relations. Israeli Prime Minister Benjamin Netanyahu lashed out last week after the Atlantic magazine quoted an unidentified Obama administration official as calling him a “chickensh-t.” The U.S. has criticized Israeli plans to speed up construction of 1,000 homes in Jewish parts of east Jerusalem, which Israel captured in 1967.

‘Negligible Impact’

The Supreme Court case concerns 12-year-old Menachem Binyamin Zivotofsky, whose parents have been trying since his 2002 birth to have his passport indicate he was born in Israel. In court papers, they called the government’s concerns “overblown” and said a ruling in their favor “will have a negligible impact on American foreign policy.”
The case is making its second appearance before the justices, who in 2012 ruled in the family’s favor on a preliminary question and said the matter could be resolved in federal court.
“The justices might regret having made that decision,” said Marty Lederman, a constitutional law professor at Georgetown University Law Center. “I don’t think the justices are going to be eager to be on either side” of the case.
A federal appeals court in Washington ruled last year that the 2002 law is unconstitutional.
The case may produce the most significant ruling in decades on the balance of power between the president and Congress on foreign affairs. Underscoring the institutional importance, the Democratic-controlled Senate has filed a brief backing the Zivotofskys, as have 42 House members from both parties.

Presidential Power

The Constitution gives the president a variety of foreign-affairs powers. In the Zivotofsky case, the administration is relying on a provision that says the president “shall receive ambassadors and other public ministers.”
The administration says that gives the president exclusive power to recognize foreign countries and determine their territorial boundaries. That interpretation is confirmed by more than two centuries of historical practice, Verrilli wrote.
“It is crucial that the nation speak with one voice,” Verrilli wrote.
Congress enacted the 2002 law as part of a broader foreign-affairs measure. President George W. Bush signed it while saying in an accompanying statement that the passport provision unconstitutionally interfered with the president’s power.

‘Sole Organ’

The Zivotofskys are asking the court to disclaim a line from a 1936 Supreme Court opinion that called the president “the sole organ of the federal government in the field of international relations.”
The Zivotofskys and their allies argue that Congress has long-accepted authority to regulate the content of passports. They point to a 1994 law that let people have their passports show “Taiwan” as their place of birth, rather than “China.”
“Congress has broad power over passports, and the State Department may not act without congressional authority when it administers the issuance of passports,” the family argued.
The administration says the 1994 law is different because it involved only a geographic description and didn’t take a position on whether Taiwan is part of China.
The court will rule by June in the case, Zivotofsky v. Kerry, 13-628.