The case involves a nine-year-old US citizen whose parents sought to list Jerusalem as his birthplace
Lawyers told the US Supreme Court Monday the question of whether Israel is listed on a passport of a person born in Jerusalem raises key issues on foreign policy and separation of powers. © Chris Hondros - AFP/Getty Images/File
The case involves a nine-year-old US citizen whose parents sought to list Jerusalem as his birthplace
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Rob Lever, AFP
Last updated: November 7, 2011

Israel passport case sparks debate in top US court

It may seem like a case on dull passport rules, but lawyers told the US Supreme Court Monday the question of whether Israel is listed on a passport of a person born in Jerusalem raises key issues on foreign policy and separation of powers.

The top US court heard impassioned arguments on the implications for US foreign policy, the Israeli-Palestinian peace effort and fundamental issues of the authority of the president and Congress in carrying out diplomatic affairs.

The case involves Menachem Zivotofsky, a nine-year-old boy born in 2002 whose US parents sought to list Jerusalem, Israel, as his birthplace, and became entangled in a political struggle on authority over such matters.

The case is complicated because Congress passed a measure as part of a foreign relations law which specifically stated that the State Department shall upon request allow US citizens born in Jerusalem to list their birth county as Israel.

But then-president George W. Bush said in signing the law that he would ignore that provision as unconstitutional interference with the executive authority to conduct foreign policy.

The government, including the succeeding administration of President Barack Obama, has argued that listing Jerusalem as part of Israel on US passports would imply US recognition of the disputed capital, and endanger delicate diplomatic efforts to reach a Middle East peace deal with the Palestinians.

Ari and Naomi Zivotofsky filed a lawsuit in 2004 after State Department officials refused to list Israel as their son Menachem's birthplace. Instead, the birth certificate indicates the boy was born in Jerusalem in 2002.

If Menachem had been born in Tel Aviv or other Israeli cities, his passport would indicate Israel as his place of birth. Under usual practices, US authorities list a country, not a city, as a place of birth.

Nathan Lewin, attorney for the boy's parents, said in oral arguments before the nine justices that the case should not be construed as political, but simply a question of allowing American citizens born in Jerusalem to have the identification they choose.

"This is not a recognition case, this is a passport case," he said.

"We live in a system in which Congress passes the laws and the president is the instrument of foreign policy."

But the comments provoked pointed exchanges with the justices, including Ruth Bader Ginsburg, who told the lawyer: "You say foreign relations is a shared power. So if it is a shared power, why does Congress trump the executive?"

Lewin responded that such a narrow law on passports would not hobble US policy efforts and that Congress still has a role in foreign affairs.

"It is Congress which makes laws, even with regard to foreign policy issues," he said, and noted precedents which would allow passports to contain information on areas in dispute, including Taiwan.

The law, he said, "gives the individual passport holder a choice."

But Chief Justice John Roberts countered that a US citizen born in Northern Ireland "doesn't have that choice even if he thinks that is part of Ireland."

US Solicitor General Donald Verrilli, arguing for the administration, said the constitution gives the executive branch "exclusive recognition power" and added that "the content of the passport is an expression of recognition."

Verrilli said this authority dates back to the early days of the nation when then president George Washington chose to recognize the revolutionary government of France and "concluded it was not necessary to even notify Congress."

He added that because of the sensitivity of the issue, "it is imperative that we speak with one voice" on foreign policy,

But some justices questioned this view as well. Justice Sonia Sotomayor said that if the court agrees with the government view, "we say a president is entitled to ignore Congress. That's a little unsettling."

Justice Stephen Breyer echoed those comments, saying: "There are very few cases when a president can act contrary to Congress."

While Israel has declared Jerusalem its capital, the United States has joined a majority of nations in refraining from recognizing that status for the holy city that Palestinians want as the capital of their future state.

A decision in the case is due before the end of the Supreme Court's current term in June.

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