A clearly divided Supreme Court on Monday stepped into the political minefield that is Jerusalem, in a case pitting Congress against presidents of both parties.
With Mideast tensions escalating, justices seemed split about whether Congress can compel the State Department to issue U.S. passports that identify Israel as the birth country for those born in Jerusalem. Israel and the Palestinians both claim the city, while the United States has long remained neutral.
“History,” Justice Elena Kagan observed, “suggests that everything is a big deal with respect to the status of Jerusalem.”
History also shows how political perspectives can shift markedly.
When Vice President Joe Biden was a senator and chairman of the Senate Foreign Relations Committee in 2002, his panel approved the Jerusalem passport measure. Now, Biden is part of the White House team that opposes the provision as an infringement on presidential power that could harm U.S. interests and further unsettle the Middle East.
“It forces the executive branch to engage in diplomatic communications that contradict our official recognition position, and undermine presidential credibility,” Solicitor General Donald B. Verrilli Jr., said of the measure.
The disputed law directs the State Department, at the request of parents or guardians, to list Israel as the place of birth instead of Jerusalem.
President George W. Bush issued a “signing statement” when the 2002 passport law went into effect, asserting that the Jerusalem provision “impermissibly interferes” with the president’s authority to manage foreign affairs. While President Barack Obama was still a senator, he explicitly criticized Bush’s use of signing statements to interpret, and sometimes limit, a new law.
Now, from his Oval Office vantage point, Obama sees value in signing statements like Bush’s on the passport law.
The long-running challenge to the presidents’ refusal to implement the passport provision was brought by the parents of Menachem Binyamin Zivotofsky, who turned 12 last month. His parents are U.S. citizens, who were living in Jerusalem when Menachem was born.
The Zivotofsky family first sued in 2003 after the State Department refused to list Israel as the place of Menachem’s birth. The department’s refusal was consistent with a U.S. position held since 1948 that the country does not recognize Jerusalem as formally belonging to either Israel or Palestine.
The court’s eventual ruling could stretch well beyond Menachem, a yarmulke-wearing, dark-haired boy who was present for the arguments Monday. All told, an estimated 50,000 U.S. passports have been issued listing Jerusalem as the place of birth. If the Obama administration loses, the holders of these passports could request the place of birth be specified as Israel.
“How an American is identified on his or her passport, including the place of birth designation, does not amount to formal recognition by the United States of that designated location’s sovereign status,” the Zivotofskys’ attorney, Alyza D. Lewin, told the justices.
Kagan and fellow Justices Sonia Sotomayor and Stephen Breyer sounded most sympathetic to the Obama administration’s plea for deference to the State Department’s expertise.
“I’m a judge, I’m not a foreign affairs expert,” Breyer said. “They are foreign affairs experts in the State Department. . . . How can I say that they, who are in charge of foreign affairs, are wrong?”
But conservatives, including Justice Antonin Scalia and Chief Justice John Roberts Jr., both former executive branch employees who often support robust presidential powers, nonetheless suggested Monday that Congress might enjoy the upper hand on this one.
“That the State Department doesn’t like the fact that it makes the Palestinians angry is irrelevant,” Scalia said, dismissing at another point “the State Department’s desire to make nice with the Palestinians.”
Justice Anthony Kennedy, in his familiar role as potential swing vote, suggested both that “the government’s policy should be given deference” and that the State Department could offset the place-of-birth listing with a reaffirmation of U.S. neutrality concerning Jerusalem’s status.
Politicians from both parties have urged the court to give a green light to the passport provision. Texas Attorney General, and current gubernatorial candidate, Greg Abbott, filed a brief in support of the Zivotofsky family, as did dozens of conservative Republicans and liberal Democrats from the House of Representatives.
Justice Clarence Thomas, as is his custom, was the only one of the nine justices not to speak or ask questions during the oral argument. A court decision is expected by the end of June.