Supreme Court Agrees To Take On Jerusalem Passport Case

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By Reuters April 21, 2014

The U.S. Supreme Court on Monday agreed to weigh the constitutionality of a law that was designed to allow American citizens born in Jerusalem – the historic holy city claimed by Israelis and Palestinians – to have Israel listed as their birthplace on passports.

The case concerns a long-standing U.S. foreign policy that the president – and not Congress – has sole authority to state who controls Jerusalem. Seeking to remain neutral on the hotly contested issue, the U.S. State Department allows passports to name Jerusalem as a place of birth, but no country name is included.

The State Department, which issues passports and reports to the president, has declined to enforce the law passed by Congress in 2002, saying it violated the separation of executive and legislative powers laid out in the U.S. Constitution.

In court papers, President Barack Obama’s administration said taking sides on the issue could “critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.”

The government has noted that U.S. citizens born in other places in the region where sovereignty has not been established, including the West Bank and the Gaza Strip, are similarly prevented from stating a country of birth on their passports.

In 2003, Ari and Naomi Zivotofsky, the parents of U.S. citizen Menachem Zivotofsky, who was born in Jerusalem in 2002, filed a lawsuit seeking to enforce the law. They would like their son’s passport to say he was born in Israel.

Since the founding of Israel in 1948, U.S. presidents have declined to state a position on the status of Jerusalem, leaving it as one of the thorniest issues to be resolved in possible future Israeli-Palestinian peace talks.

When Republican President George W. Bush signed the 2002 law as part of a broader foreign affairs bill, he said that if construed as mandatory rather than advisory, it would “impermissibly interfere” with the president’s authority to speak for the country on international affairs.

The issue reached the U.S. Supreme Court in 2012 on the preliminary question of whether it was so political that it did not belong in the courts. The high court ruled 8-1 that the case could proceed, setting up a July 2013 ruling by the U.S. Court of Appeals for the District of Columbia Circuit that struck the law down.

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

While Israel calls Jerusalem its capital, few other countries accept that status. Most, including the United States, maintain their embassies to Israel in Tel Aviv. Palestinians want East Jerusalem, captured by Israel in a 1967 war, as capital of the state they aim to establish alongside Israel in the West Bank and Gaza Strip.

Oral arguments and a decision are due in the court’s next term, which begins in October and ends in June 2015.

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