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High Court Unlikely to Touch|the Status of Jerusalem’s Recognition

(CN) - The Supreme Court seems wary to extend what Justice Elena Kagan called a "very selective vanity plate law" that would let U.S. citizens born in Jerusalem list "Israel" as their birthplace on passports.

The court heard oral arguments Monday in a lawsuit to compel enforcement by the secretary of State of the Foreign Relations Authorization Act of 2003, which would allow the "Israel" designation for people born in Jerusalem.

The secretary has refused, claiming that the act overlaps executive powers such as the right to recognize foreign countries, and today's arguments repeatedly turned to the volatile Arab-Israeli situation.

Ari and Naomi Siegman Zivotofsky sued to enforce the law after their son Menachem was born in Israel in 2002, but the government said that this would undermine its position of neutrality on the issue of whether Israel or Palestine controls the holy city.

The D.C. Circuit agreed with the government even after the Supreme Court said that the Zivotofskys were not asking it to pick a side in the Jerusalem dispute.

Alyza Lewin, an attorney for the couple, tried to avoid the political question altogether at Monday's hearing.

"How an American is identified in his or her passport does not amount to formal recognition by the United States," she said, according to a court transcript. "That passport would not, when shown, be making any kind of political statement. It does not state that in all circumstances you have to list Israel as the place of birth. It is merely giving the individual choice."

Justice Stephen Breyer was not convinced. "The Solicitor General, after conferring with the State Department, says, 'Since Israel's founding, every President has adhered to the position that the status of Jerusalem should not be unilaterally determined by a party.' Now, I'm a judge. I'm not a foreign affairs expert. How can I say that I'm right even if I agree with you, and they, who are in charge of foreign affairs, are wrong?"

Time and again, Lewin searched for comparison points and was shot down.

Justice Ruth Bader Ginsburg interrupted when Lewin called Taiwan a "perfect example" of the separation between recognizing birthplace and sovereignty.

"Taiwan and China maintained from the beginning there is only one China, and so Taiwan is a place name," Ginsburg said. "It's a region. There's no question of recognition in the Taiwan event."

Justice Elena Kagan added that, "if you're an American citizen born in Northern Ireland, you can't get the right to say Ireland. This is a very selective vanity plate law, if we might call it that."

Lewin reasserted that "this is not a political declaration," but Justice Anthony Kennedy retorted: "Well, then, I'm not sure why that Congress passed it, then."

Echoing his attitude, Justice Sonia Sotomayor said: "I thought it was a federal crime to say that you were born in the United States when you weren't on an official document. So why is it that it's OK for Congress to say something that hasn't happened, meaning to say that someone born in Jerusalem is actually born in Israel?"


Unlike Lewin, Solicitor General Donald Verrilli was eager to turn the conversation to politics. "Even though President Bush issued a statement which said this didn't change the policy of the United States and that we weren't going to enforce it because he was treating it as advisory, the consequences that ensued in the Middle East in October of 2002 were that there were mass demonstrations in Jerusalem, thousands of people in the streets, some turning violent," Verrilli said. "The Palestinian parliament met and voted for the first time to declare Jerusalem the capital of the Palestinian state."

"Congress cannot compel the executive to issue diplomatic communications that contradict the official position of the United States on a matter of recognition," he said, adding that the act "tries to deny the president the power to give effect to our official recognition position."

Chief Justice John Roberts led the unsurprising criticism of Verrilli by the conservative wing of the court.

"Well, isn't that exactly what the Taiwan Relations Act says?" the chief justice asked.

"No, Mr. Chief Justice, that's quite different," Verrilli responded, saying the act implemented, rather than contradicted, the president's judgment.

Justice Antonin Scalia, who earlier had noted that "the fact that the State Department doesn't like the fact that it makes the Palestinians angry is irrelevant," added: "if it is within Congress's power, what difference does it make whether it antagonizes foreign countries? The mere fact that it upsets foreign relations doesn't prove a thing."

"No," Verrilli said. "The critical point is that it requires the president himself and the executive branch to communicate a message that contradicts the official recognition position of the United States."

Justice Roberts asked: "What if it just says, parentheses after it, 'Disputed'? Then I gather they wouldn't be lying."

"Because the very need to make the statement calls the credibility of the president's representation of our recognition position into question," Verrilli replied.

Scalia wondered about the act's pragmatic ramifications as well. "I pick up this passport, and it says place of birth, Israel," Scalia said. "Do I know whether this person was born in Jerusalem or in Haifa? How does it advertise to the world that that the President is contradicting himself? All you know is that the person was born in Israel. It could have been anywhere in Israel."

Verrilli was unbowed: "The world knows that we will issue thousands of passports to people born in Jerusalem identifying them as born in Israel, and the world knows that we will be doing that because the Congress of the United States required it."

He added: "You're requiring the president to make statements thousands of times that contradict the official recognition position of the United States."

Lewin later said that "allowing the State Department's say-so to control because it's an expert in foreign relations would be abdicating an independent function and would turn the President into an autocrat whose word controls."

Apparently weary with Lewin's repeated efforts to avoid the political ramifications of her case, Kagan noted: "Can I say that this seems a particularly unfortunate week to be making this kind of, 'oh, it's no big deal' argument?"

"I mean, history suggests that everything is a big deal with respect to the status of Jerusalem," she added. "And right now Jerusalem is a tinderbox because of issues about the status of and access to a particularly holy site there. And so sort of everything matters, doesn't it?"

Lewin stood her tentative ground. "Well, it is a sensitive issue, but to suggest that what will go on a passport as a place of birth is going to implicate or make it worse, there's no evidence of that," she said.

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