Supreme Court Weighs Status of Jerusalem for Passports

Supreme Court Weighs Status of Jerusalem for Passports

By ADAM LIPTAKNOV. 3, 2014

Menachem Zivotofsky, whose birth in Jerusalem is at the heart of a legal case, with his father, Ari Zivotofsky. CreditCarolyn Kaster/Associated Press

WASHINGTON — The Supreme Court on Monday considered the status of Jerusalem, which Solicitor General Donald B. Verrilli Jr. told the justices was “the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades.”

The legal question for the justices was whether Congress was entitled in a 2002 law to order the State Department to “record the place of birth as Israel” in the passports of American children born in Jerusalemif their parents asked.

The answer to that question involves the separation of powers and the competing roles of Congress and the president in the conduct of foreign affairs. But the justices seemed unusually alert to the real-world consequences of their eventual decision.

When Alyza D. Lewin, a lawyer for the couple challenging the law, said that a notation in a passport is a minor matter and not a statement on American foreign policy, Justice Elena Kagan said her assertion was poorly timed.

“Can I say that this seems a particularly unfortunate week to be making this kind of ‘oh, it’s no big deal’ argument?” Justice Kagan asked. “I mean, history suggests that everything is a big deal with respect to the status of Jerusalem. And right now Jerusalem is a tinderbox.”

But Justice Antonin Scalia said the question for the court concerned constitutional law and not international relations. “If it is within Congress’s power,” he said, “what difference does it make whether it antagonizes foreign countries?”

“The fact that the State Department doesn’t like the fact that it makes the Palestinians angry is irrelevant,” he said.

The case, Zivotofsky v. Kerry, No. 13-628, was brought by the parents of Menachem B. Zivotofsky, who was born in 2002 not long after Congress enacted the law. Under the State Department’s policies, their son’s passport says that he was born in Jerusalem; they seek to have it say Israel.

President George W. Bush signed the law, part of an appropriations bill, but said he would not follow the Jerusalem provision because it “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs.” The Obama administration also objects to the provision.

The case was before the justices once before, on a preliminary issue. In 2012, the Supreme Court ruled that the case did not involve a “political question” beyond the federal courts’ power to decide and returned the case to an appeals court. Last year, the appeals courtruled for the executive branch, saying the passport requirement impermissibly intruded on what it said was the president’s exclusive power to recognize foreign governments.

Now that the ultimate question was before the Supreme Court again, some justices seemed to be looking for a narrow way to decide it.

Justice Anthony M. Kennedy wondered whether passports could include a disclaimer saying the birthplace designation is not a declaration by the president “that Jerusalem is within the borders of the state of Israel.”

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Ms. Lewin said that would be fine. But, she added in response to a question from Justice Kagan, Congress could instruct the president to delete the statement.

Justice Kagan said passports are diplomatic communications and suggested that Congress should not be allowed to dictate their content. To press the point, she asked Ms. Lewin whether Congress could require the secretary of state to send a letter to “every foreign minister” announcing that an American baby had been born in Israel every time one was born in Jerusalem.

To Justice Kagan’s apparent surprise, Ms. Lewin said that would be constitutional. Justice Kagan said the answer was “a little bit shocking.”

Chief Justice John G. Roberts Jr. stepped in to offer a distinction between the hypothetical letters and passports. “The passport is used primarily for purposes of identification,” he said, “and it’s only the letter that makes it something else.”

Ms. Lewin adopted the distinction. “Correct, Justice Roberts,” she said.

She said the main function of the passport notation was “to give individuals the right to self-identify as they choose that they were born in Israel.”

Under that view, Justice Kagan said, Congress had enacted “a very selective vanity plate law.”

Mr. Verrilli said a ruling sustaining the law could have a negative effect on American foreign policy.

“The nations in the region, and, frankly, people around the world and governments around the world,” he said, “scrutinize every word that comes out of the United States government and every action that the United States government takes in order to see whether we can continue to be trusted as an honest broker who could stand apart from this conflict and help bring it to resolution.”

Justice Samuel A. Alito Jr. said none of that mattered. “Our decision,” he said, “isn’t going to be based on any view that we may have about whether Jerusalem should be regarded as part of Israel or the capital of Israel.”