High Court Shuts Down Jerusalem Birth Issue

WASHINGTON (CN) - A law that lets U.S. citizens born in Jerusalem list "Israel" as their birthplace on passports is unconstitutional, the divided Supreme Court ruled Monday.

Section 214(d) of the Foreign Relations Authorization Act of 2003 requires the secretary of the U.S. Department of State to record "Israel" as the birthplace on passports of U.S. citizens born in Jerusalem who request it.

Believing that it overlaps with executive powers, however, the secretary has not enforced this provision.

This restraint came into question after the Israel birth of Menachem Zivotofsky to U.S. citizen parents in 2002.

Though the Zivotofskys wanted the government to register their son's birthplace as Israel instead of Jerusalem, the government argued that such an order would contradict its position of neutrality on the issue of whether Israel or Palestine controls the holy city.

The case was previously dismissed for lack of subject matter jurisdiction, but the Supreme Court revived the action in 2012 after finding that the Zivotofskys simply wanted the courts to "enforce a specific statutory right," not side with Palestine or Israel.

On remand, the D.C. Circuit ruled that the law "impermissibly intrudes" on the president's "exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations."

The Supreme Court affirmed by divided vote Monday, taking pains with the "delicate subject" at hand.

"Questions touching upon the history of the ancient city and its present legal and international status are among the most difficult and complex in international affairs," Justice Anthony Kennedy wrote, joined in full by four colleagues. "In our constitutional system these matters are committed to the legislature and the executive, not the judiciary. As a result, in this opinion the court does no more, and must do no more, than note the existence of international debate and tensions respecting Jerusalem. Those matters are for Congress and the president to discuss and consider as they seek to shape the nation's foreign policies."

For the majority, the case turns on "the exclusive power of the president to control recognition determinations, including formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds."

"Congress cannot command the president to contradict an earlier recognition determination in the issuance of passports," Kennedy wrote.

One member of the majority, Justice Stephen Breyer, wrote in a concurring opinion that he joined with Kennedy only "because precedent precludes resolving this case on political question grounds."

"I continue to believe that this case presents a political question inappropriate for judicial resolution," Breyer wrote.

Justice Clarence Thomas meanwhile dissented in part, saying the majority made the right call on the passports issue, but relied "on a distortion of the president's recognition power" to strike down the part of Section 214(d) as applied to consular reports of birth abroad.

"Because I cannot join this faulty analysis, I concur only in the portion of the court's judgment holding §214(d) unconstitutional as applied to passports," Thomas wrote.

Chief Justice Roberts meanwhile dissented in full, joined by Justice Samuel Alito.

"Resolving the status of Jerusalem may be vexing, but resolving this case is not," Roberts said. "Whatever recognition power the president may have, exclusive or otherwise, is not implicated by §214(d). It has not been necessary over the past 225 years to definitively resolve a dispute between Congress and the president over the recognition power. Perhaps we could have waited another 225 years. But instead the majority strains to reach the question based on the mere possibility that observers overseas might misperceive the significance of the birthplace designation at issue in this case. And in the process, the court takes the perilous step - for the first time in our history - of allowing the president to defy an act of Congress in the field of foreign affairs."

Roberts and Alito also joined a separate dissent by Justice Antonin Scalia.

"International disputes about statehood and territory are neither rare nor obscure," Scalia wrote. "Leading foreign debates during the 19th century concerned how the United States should respond to revolutions in Latin America, Texas, Mexico, Hawaii, Cuba. During the 20th century, attitudes toward Communist governments in Russia and China became conspicuous subjects of agitation. Disagreements about Taiwan, Kashmir, and Crimea remain prominent today. A president empowered to decide all questions relating to these matters, immune from laws embodying congressional disagreement with his position, would have uncontrolled mastery of a vast share of the nation's foreign affairs.

"That is not the chief magistrate under which the American People agreed to live when they adopted the national charter. They believed that '[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, ... may justly be pronounced the very definition of tyranny.' For this reason, they did not entrust either the President or Congress with sole power to adopt uncontradictable policies about any subject-foreign-sovereignty disputes included. They instead gave each political department its own powers, and with that the freedom to contradict the other's policies. Under the Constitution they approved, Congress may require Zivotofsky's passport and birth report to record his birthplace as Israel, even if that requirement clashes with the President's preference for neutrality about the status of Jerusalem."

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