US top court backs Obama, invalidates Jerusalem passport law

WASHINGTON — The US Supreme Court on Monday struck down a law that would let American citizens born in Jerusalem have Israel listed in  passports as the country of their birth, saying it unlawfully encroached on the president’s powers to set foreign policy.

The 6-3 ruling, a victory for President Barack Obama, comes at a time of strained relations between Israel and the United States, Israel’s most important ally. The Obama administration had said if the law were enforced it would have caused “irreversible damage” to America’s ability to influence the region’s peace process.

Writing for the court in an important ruling on separation of powers within the US government, Kennedy said the US Congress, which enacted the law in 2002, has a role to play in foreign policy but cannot make decisions on recognising foreign governments. That is the president’s “exclusive power”, Kennedy wrote.

Congress passed the law when president George W. Bush was president, but neither his administration nor Obama’s ever enforced it. While Israel calls Jerusalem its capital, few other countries accept that. Most, including the United States, maintain embassies in Tel Aviv.

“Congress cannot command the president to contradict an earlier recognition determination in the issuance of passports,” added Kennedy, a conservative who often holds the key vote in close cases.

Ari and Naomi Zivotofsky, the American parents of now-12-year-old Menachem Zivotofsky, had waged a long court battle to have their son’s passport state he was born in Israel.

The case touched upon what Kennedy called the “delicate subject” of Jerusalem’s status. The city, considered holy to Jews, Muslims and Christians, is claimed by both Israelis and Palestinians and has been a major point of contention in the Middle East for decades. The justices took no position on that issue.

Seeking to remain neutral on the hotly contested issue of sovereignty over Jerusalem, the State Department allows passports to name the city as the place of birth, with no country name included. The ruling means Menachem Zivotofsky’s passport will simply list “Jerusalem” as his birthplace.

The court was divided, with its four liberals joining Kennedy in the majority. Conservative Justice Clarence Thomas agreed with the outcome but differed over the legal rationale. The court’s other conservatives, Chief Justice John Roberts, Justice Antonin Scalia and Justice Samuel Alito, dissented, saying the law did not involve recognition of a foreign government.

Lawyers for the Zivotofsky family, Nathan and Alyza Lewin, expressed disappointment in a ruling they said highlights the “central fallacy” in the attitudes of US presidents since Israel’s founding in 1948.

“Presidents have been permitted by American public opinion to maintain, as American foreign policy, 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,” they said.

‘Conduct of diplomacy’

A US official, speaking on condition of anonymity, welcomed the ruling. “It is important because it confirms the long-established authority of the president to make sensitive recognition determinations as an essential part of his authority over the conduct of diplomacy and foreign policy,” the official said.

Nabil Abu Rdaineh, spokesman for Palestinian President Mahmoud Abbas, told Reuters: “This is an important decision which accords with international resolutions and the resolutions of the UN Security Council and General Assembly. This is a clear message that Israel occupies East Jerusalem as well as the West Bank and Gaza Strip.”

Israeli foreign ministry spokesman Emmanuel Nahshon said: “We do not react publicly to foreign court rulings.”

An estimated 50,000 American citizens were born in Jerusalem and could, if they requested it, list Israel as their birthplace if the law had been enforced.

In his dissent, Scalia said the Jerusalem passport law “has nothing to do with recognition”. By embracing the Obama administration’s argument, the court may have made it easier for future president’s to direct foreign policy, Scalia added.

That judgement call comes at a cost, Scalia added, because “it is certain in the long run it will erode the structure of equal and separated powers that the people established for the protection of their liberty”.

The Obama administration had argued that a loss for the government in the case would have been seen around the world as a reversal of US policy.

The ruling comes amid a rift in American-Israeli relations. Strained personal relations between Obama and Israeli Prime Minister Benjamin Netanyahu were on display in March when the Israeli leader delivered a speech to the US Congress in which he aligned himself with Obama’s Republican foes and criticised Obama’s bid to secure an international deal with Iran to curb Tehran’s nuclear programme.

Palestinians want East Jerusalem, occupied by Israel in a 1967 war, as capital of the state they aim to establish alongside Israel in the West Bank and Gaza Strip.