A divided U.S. Supreme Court on Monday struck down a law that would allow American citizens born in Jerusalem to have Israel listed as their birthplace on passports, saying it unlawfully encroached on the president’s powers to set foreign policy.
The 6-3 vote ruling, a victory for President Barack Obama, comes at a time of strained relations between Israel and the United States, the Jewish state’s most important ally. The Obama administration had said that if the law were enforced it would have undermined the U.S. government’s claim to be a neutral peacemaker in the Middle East.
Writing for the court, Kennedy conceded that the U.S. Congress, which enacted the law in 2002, has a role to play in foreign policy but cannot make decisions on recognizing foreign governments. That is the president’s “exclusive power,” Kennedy wrote.
“Congress cannot command the president to contradict an earlier recognition determination in the issuance of passports,” added Kennedy, a conservative who often holds the key vote in close cases.
Ari and Naomi Zivotofsky, the American parents of now-12-year-old Menachem Zivotofsky, had waged a long court battle to have the boy’s passport state he was born in Israel.
The case touched upon what Kennedy called the “delicate subject” of Jerusalem’s status. The city, considered holy to Jews, Muslims and Christians, is claimed by both Israelis and Palestinians and has been a major point of contention in the Middle East for decades. The justices took no position on that issue.
An estimated 50,000 American citizens were born in Jerusalem and could, if they requested it, list Israel as their birthplace if the law had been enforced.
The court was divided, with its four liberals joining Kennedy in the majority. One of the court’s conservatives, Justice Clarence Thomas, agreed with the outcome but differed over the legal rationale. The court’s other conservatives, Chief Justice John Roberts, Justice Antonin Scalia and Justice Samuel Alito, all dissented, saying the law did not involve recognition of a foreign government.
Congress passed the law when President George W. Bush was president, but neither his administration nor the current Obama administration ever enforced it.
‘NOTHING TO DO WITH RECOGNITION’
Scalia took the relatively rare step of reading his dissenting opinion from the bench.
“The Jerusalem passport law has nothing to do with recognition,” Scalia said.
By embracing the Obama administration’s argument, the court may have made it easier for future president’s to direct foreign policy, Scalia added.
But that judgment call comes at a cost, Scalia added, because “it is certain in the long run it will erode the structure of equal and separated powers that the people established for the protection of their liberty.”
Seeking to remain neutral on the hotly contested issue of sovereignty over Jerusalem, the State Department allows passports to name the city as a place of birth, with no country name included.
The Obama administration had said in court papers that a loss for the government in the case would have been seen around the world as a reversal of U.S. policy that could cause “irreversible damage” to America’s ability to influence the region’s peace process.
The ruling comes amid a rift in American-Israeli relations. Obama and recently re-elected Israeli Prime Minister Benjamin Netanyahu have strained personal relations.
Their differences were particularly exposed after the Israeli leader delivered a speech to the U.S. Congress in March in which he aligned himself with Obama’s Republican foes and was sharply critical of the president’s efforts to secure an international deal with Iran to curb Tehran’s nuclear program.
Israeli Foreign Ministry spokesman Emmanuel Nahshon, asked to comment on the Supreme Court’s decision, said, “We do not react publicly to foreign court rulings.”
The status of Jerusalem has been a contentious issue since Israel’s founding in 1948.
While Israel calls Jerusalem its capital, few other countries accept that. Most, including the United States, maintain embassies in Tel Aviv. Palestinians want East Jerusalem, captured by Israel in a 1967 war, as capital of the state they aim to establish alongside Israel in the West Bank and Gaza Strip.