- Associated Press - Monday, November 7, 2011

The Supreme Court seems unlikely to rule for a 9-year-old boy who was born in Jerusalem and wants his U.S. passport to list his place of birth as Israel.

Menachem Zivotofsky and his parents were at the high court for arguments Monday over his challenge to a State Department policy that won’t allow his passport to show he was born in Israel.

The case mixes Middle East politics with a battle between Congress and the president over American foreign policy. The Obama administration says the passport policy is in line with long-standing foreign policy that says the status of Jerusalem should be resolved in negotiations between Israel and the Palestinians. Congress passed a law in 2002 seeking to give Americans born there the right to have Israel listed as their birthplace.

The justices seemed reluctant to question the administration’s position that the law was an improper congressional attempt to speak for the country on foreign policy. Justice Elena Kagan said the congressional action read more like a foreign-policy statement than a passport law.

“It’s a passport statute that seems to have nothing to do with immigration functions that passport statutes usually serve,” Justice Kagan said.

Nathan Lewin, a Washington lawyer representing the family, said the law concerns the ability of people to identify themselves as they wish. “It was not designed to create a kind of political brouhaha,” Mr. Lewin said.

The administration says it doesn’t want to stir up anger in the Arab world by appearing to take a position on the ultimate fate of Jerusalem.

The Justice Department says the U.S. has consistently declined to recognize any nation’s sovereignty over Jerusalem since Israel’s creation in 1948. At the time, Jerusalem was divided, with Israel controlling the western part of the city and Jordan holding sway over the east.

Israel captured the eastern part from Jordan in the 1967 Middle East war and has since annexed that area and proclaimed the city as its indivisible capital. The Palestinians want East Jerusalem as their capital.

Thirty-nine lawmakers from both parties in Congress are siding with the boy and his parents, defending a provision in a 2002 law that allows Israel to be listed as the birthplace for Americans born in Jerusalem.

President George W. Bush signed the much larger law, but said the provision on Jerusalem interfered with his power over foreign affairs, including the authority to recognize foreign states. Mr. Bush issued a signing statement at the time in which he said that “U.S. policy regarding Jerusalem has not changed.”

The regular practice for recording the birth of a U.S. citizen abroad is to list the country where it occurred. But the department’s guide tells consular officials, “For a person born in Jerusalem, write Jerusalem as the place of birth in the passport.”

In late 2002, Naomi Zivotofsky, Menachem’s mother, showed up at the U.S. Embassy in Tel Aviv to get her baby a U.S. passport, one that listed Israel as his birthplace. After State Department officials refused her request, the family sued.

The Zivotofskys and their supporters at the Supreme Court point out that other federal agencies, including the Pentagon and Justice Department, refer in official documents to “Jerusalem, Israel.” The legal briefs also note that the hospital where Menachem was born is in western Jerusalem, over which there is no dispute about Israeli sovereignty.

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