By: YONAH JEREMY BOB, JPOST—
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 which authorized placing “Israel” on passports of Jerusalem-born Americans.
The 6-3 split ruling was also 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 6-3 majority against Justices John Roberts, Antonin Scalia and Samuel Alito.
Justice Scalia took the majority to task for its legal reasoning, 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 US Supreme Court decision, with Foreign Ministry spokesman Emmanuel Nachshon saying that Israel does not relate in the media to US court decisions.
When the court heard 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 v. Kerry, has been winding through the US courts for years with major setback decisions followed by unexpected decisions putting the case back on track.
The policy of the US, 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 state’s annexation of Jerusalem decades ago.
But in 2002, the US Congress passed the Foreign Relations Authorization Act which require the US government to place “Jerusalem, Israel” as the place of birth for Jerusalem-born US citizens.
Former US President George W. Bush ignored Congress, claiming it had interfered with his powers to direct foreign policy on the issue of if or when to recognize foreign countries’ claims to land, and US President Barack Obama has followed suit.
The parents of Menachem Zivitofsky, also born in 2002, sued, and along with a coalition of supporters have pushed the case through the courts to try to force the US president’s hand and to comply with the Congressional law.
In 2011 the US 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 court’s stay away from.
The US 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 US Supreme Court agreed to hear the Zivotofsky family’s appeal of the appeals court’s second rejection of its case – and its final decision on that final appeal came Monday.
The overall prediction had been that despite saving the case on an interim basis twice, that the US Supreme Court would likely side with the president.
Justice Kennedy had indicated a possible compromise, suggested by some scholars, in which the law is enforced, but the government adds disclaimers in passports saying the place of birth is not intended to recognize Israel’s sovereignty over Jerusalem – theoretically alleviating concerns that the policy change would be viewed as taking sides in the Israeli-Arab conflict.
But ultimately, the executive branch’s position prevailed without compromise.
The State Department had argued that if the court rules for Congress and upholds the law, “irreversible damage” could be caused to America’s power to influence the region’s peace process.
The Solicitor General, who represents the president, had noted that US citizens born in other places in the region 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