- The Washington Times - Monday, June 8, 2015

Handing President Obama a victory in a power struggle with Congress over foreign policy, the Supreme Court ruled Monday that Americans born in the contested city of Jerusalem cannot list Israel as their birthplace on their passports.

In a 6-3 decision, the court struck down a 2002 law passed by Congress that would have forced the State Department to alter its long-standing policy of not listing Israel as the birthplace for Jerusalem-born Americans on their passports. With both Palestinians and Israelis claiming sovereignty of the city, the official U.S. policy has long been not to recognize either claim as the two sides negotiate a final peace deal.

President George W. Bush signed the bill but claimed in an accompanying “signing statement” that the Jerusalem passport provision breached his executive power, was only “advisory” in nature, and that his administration would not enforce it. President Obama has taken the same position.

The case attracted considerable attention from constitutional scholars both for the clash over separation of powers and Congress‘ role in foreign policy, but also for the high court’s take on the validity of the signing statements that presidents have increasingly attached to legislation stating their objections to portions of the bill.

The case was brought by the parents of Menachem Zivotofsky, a 12-year old boy born in Jerusalem in 2002. In 2012, the Supreme Court overturned the D.C. District Court opinion that considered the issue too political to be resolved by the courts.

Menachem Zivotofsky’s parents again petitioned the Supreme Court in 2014 to decide whether Congress or the president had exclusive power to recognize the political status of foreign states and governments.


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Monday’s majority ruling was clear in its support for the executive branch to set foreign policy issues such as the passport question, and was the court’s most explicit statement ever that the president enjoys the sole authority to decide what other foreign nations the United States will formally recognize for official relations.

“Recognition is a matter on which the nation must speak with one voice. That voice is the president’s,” Justice Anthony Kennedy wrote.

But Justice Antonin Scalia, joined in his dissent by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., said Congress and the president played equal roles in such foreign policy questions.

“A principle that the nation must have a single foreign policy, which elevates efficiency above the text and structure of the Constitution, will systematically favor the president at the expense of Congress,” Justice Scalia said during his dissenting remarks from the bench. The majority opinion has tarnished “the structure of equal and separated powers that the people established for the protection of their liberty,” he wrote.

Despite Mr. Bush’s expressed reservations, the 2002 law allowed Jerusalem-born Americans to list Israel as their birthplace on their passports if they requested it. This would have affected an estimated 50,000 U.S. passport holders.

The U.S. government has declined to recognize any state’s right to the holy city until the conflict is resolved, but pro-Israeli lawmakers have repeatedly tried to bolster the Jewish state’s claim through legislation.

The 1995 Jerusalem Embassy Act called for the U.S. to relocate its embassy from Tel Aviv to Jerusalem and to recognize the latter as the capital of Israel, but waivers from Presidents Clinton, George W. Bush and Obama have prevented the law’s implementation.

Mr. Bush signed the passport legislation in 2002 along with a signing statement that exempted him from enforcing the law on the grounds that it was undermining his right as commander in chief to determine the recognition of foreign states. Many critics, including then-Sen. Obama, accused Mr. Bush of overstepping his powers as president.

The administration welcomed the high court’s ruling.

The decision “confirms the long-established authority of the president over the conduct of diplomacy and foreign policy,” State Department spokesman Jeff Rathke told reporters Monday after the decision was announced.

But Alyza Lewin, who argued the case for the Zivotofsky family, said the decision “highlights the central fallacy” of U.S. policy on Jerusalem.

“Presidents have been permitted by American public opinion to maintain, as American foreign policy, the absurd position that no country is sovereign over Jerusalem, and that no part of the city, including the western portion of Jerusalem, is in Israel,” Mr. Lewin told The Associated Press.

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