Stressing the supremacy of presidential over congressional power to set foreign policy, the Supreme Court struck down a federal statute that would allow American citizens born in Jerusalem to list Israel as their place of birth on their passports and birth certificates.
By a 6-3 vote, the court ruled June 8 that a president has the “exclusive power” to grant formal recognition to a foreign sovereign, allowing the executive branch to “solely” decide to receive ambassadors and negotiate treaties. The recognition power also includes the right to decide what is listed on a person’s documents, the court ruled.
The case, which has been argued in the courts for 12 years, centered on whether Menachem Zivotofsky, whose parents moved to Israel from Silver Spring, Md., must continue to list Jerusalem as his place of birth. He had sought to change his birthplace to Israel on his personal documents.
“We are, of course, disappointed,” said Alyza Lewin, the Zivotofskys’ attorney. The executive branch has maintained 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,” she said in an email.
The Union of Orthodox Jewish Congregations of America also expressed disappointment with the ruling. “But we are more disappointed by the persistent policy of the United States government — carried out by successive presidents — to treat the capital city of Israel with less respect that that accorded to capital cities of virtually every other nation,” said Nathan Diament, OU executive director for public policy.
Akiva Shapiro, a litigation associate in the New York office of Gibson, Dunn & Crutcher LLP, wrote an amicus brief for “a long list” of Congress members, including Reps. Ed Royce (R-Calif.), chairman of the House Committee on Foreign Affairs, and Eliot Engel (D-N.Y.), the committee’s ranking member.
While he supported the Zivotofskys’ wish to have Israel listed on their son’s passport, his brief concerned the protection of Congress’ role in foreign affairs. “We were supporting a robust role for Congress,” said the former Pittsburgh resident.
While disappointed in the overall result, Shapiro said he was pleased that when Justice Anthony Kennedy wrote the majority opinion, he “actively went out of his way” to explain that the ruling was a narrow one, concerning recognition powers and left Congress “with other tools and levers” to deal with foreign policy.
Marc Stern, AJC general counsel, said it was important not to overstate the significance of the ruling, which he called a “symbolic loss.”
By limiting its ruling only to the passport issue, the Supreme Court did not grant “a victory for Palestinian’s claim to Jerusalem” nor did it vindicate the executive branch’s decision not to recognize Israel’s sovereignty over Jerusalem, Stern said.
“It is as narrow a loss” as possible, Stern said.
However, Mark Graber, the Jacob A. France Professor of Constitutionalism at the University of Maryland Francis King Carey School of Law, viewed the ruling as more wide ranging.
The majority of the justices said that “Congress not only can’t say you are wrong Mr. President,” but Congress can’t do anything inconsistent with the president’s recognition power, Graber said.
“It’s interesting that the court really did decide to decide. They didn’t leave a lot of things to imagination.”
Since 1948, when President Harry Truman recognized Israel but did not recognize Israeli sovereignty over Jerusalem, the United States has refused to recognize any country’s sovereignty over the city.
Kennedy wrote in his majority opinion that sovereignty over Jerusalem is “a delicate subject [that] lies in the background of this case.” He called the question of Jerusalem “among the most difficult and complex in international affairs.”
Kennedy was joined in his opinion by five justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elana Kagan and Clarence Thomas — three of whom are Jewish.
The matter is a political one, and all the court can do “is note the existence of the international debate and tensions respecting Jerusalem,” Kennedy wrote.
The ruling means that Congress overstepped its powers when it passed the 2002 Foreign Relations Authorization Act that allowed U.S. citizens born in Jerusalem to list Israel on their documents if they requested.
In his dissent, Chief Justice John Roberts called the decision a first. “Never before has this court accepted a president’s direct defiance of an act of Congress in the field of foreign affairs.” Roberts also noted that “[f]or our first 225 years, no president prevailed when contradicting a statute in the field of foreign affairs.”
The majority based its ruling “on the mere possibility that observers overseas might misperceive the significance of the birthplace designation at issue in this case,” Roberts wrote.
Recognizing ambassadors is merely an obligation, not a duty, he added.
Justice Antonin Scalia also dissented, arguing that just because a president has the power to recognize ambassadors and countries, “it does not give him sole power to make all decisions relating to foreign disputes over sovereignty.”
In sharply worded language, Scalia called the majority opinions’ argument impossible to make “with a straight face.”
Rabbi Jonah Pesner, director of the Religious Action Center of Reform Judaism, said the court addressed “complicated issues of separation of powers and foreign policy” but that the case was “equally about the right of U.S citizens” to list where they were born.
Israel, Pesner said, “should not be subjected to legal disadvantages under U.S. law that are not applied to other nations.”
Suzanne Pollak writes for Washington Jewish Week.