U.S. Court Invalidates Law That Let Jerusalem-born Citizens List Israel on Passports

Ruling considered a victory for the Obama administration who says Congress encroached on president's power in passing law; Palestinians say ruling 'a clear message that Israel occupies East Jerusalem.'

Send in e-mailSend in e-mail
Ari Zivotofsky, right, standing with his nine-year-old son, Menachem, outside the Supreme Court in Washington, Nov. 7, 2011.
Ari Zivotofsky, right, standing with his nine-year-old son, Menachem, outside the Supreme Court in Washington, Nov. 7, 2011.Credit: AP

The U.S. Supreme Court on Monday struck down a law that would allow American citizens born in Jerusalem to have Israel listed as their birthplace on passports.

The ruling was a victory for the administration of President Barack Obama, which said the law unlawfully encroached on the president's power to set foreign policy and would, if enforced, undermine the U.S. government's claim to be a neutral peacemaker in the Middle East.

In a ruling by Justice Anthony Kennedy, the court said the president has exclusive power to grant formal recognition to a foreign government.

"Congress cannot command the president to contradict an earlier recognition determination in the issuance of passports," Kennedy, a conservative who often casts the deciding vote in close cases, wrote in the majority opinion.

The court was divided, with the court's four liberal members joining Kennedy in the majority. One of the court's conservatives, Justice Clarence Thomas, agreed with part of the ruling. The court's other conservatives, Chief Justice John Roberts, Justice Antonin Scalia and Justice Samuel Alito, all dissented.

Scalia took the relatively rare step of reading his dissenting opinion from the bench. He said that the Jerusalem passport law does not infringe on the president's power because it did not concern the question of recognizing a foreign government.

"The Jerusalem passport law has nothing to do with recognition," Scalia said.

Congress passed the law in 2002, but the government has never enforced it. The question at hand was whether Congress overstepped its authority in passing the law. 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.

The State Department maintains the law violates the U.S. Constitution's separation of executive and legislative powers. It says a loss for the government in the case would be seen around the world as a reversal of U.S. policy that could cause "irreversible damage" to America's ability to influence the region's peace process.

Seeking to remain neutral on the hotly contested issue of sovereignty over a city holy to Jews, Muslims and Christians, the State Department allows passports to name Jerusalem as a place of birth, with no country name included.

A U.S. 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 U.N. 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."

However,Jerusalem Mayor Nir Barkat responded to the ruling, saying that "much like Washington D.C. is the capital of the U.S., and London is the capital of the U.K., and Paris the capital of France – thus Jerusalem is and always will be the capital of Israel."

Barkat said that "in days like these, when anti-Semites are trying to raise their heads and the BDS – which supports Hamas' positions – endangers world peace and denies Israel's right to exist, we expect the U.S. to strengthen Israel and recognize Jerusalem as its capital.

"I call on U.S. President Obama to publically say what has been known for generations, that Jerusalem is the capital of Israel and that Israel is the home of the Jewish people," Barkat said.

The parents of a Jerusalem-born 12-year-old boy, U.S. citizen Menachem Zivotofsky, have waged a long court battle to have his passport state he was born in Israel.

At issue was the longstanding U.S. policy that the president, not Congress, has sole authority to provide American recognition of who controls Jerusalem, a city claimed both by Israelis and Palestinians.

The White House argued that the president has sole authority to provide American recognition of who controls Jerusalem, a city claimed both by Israelis and Palestinians. The Bush administration had made the same argument.

While Israel calls Jerusalem its capital, few other countries accept that. Most, including the United States, maintain embassies 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.

Read the full ruling here



Automatic approval of subscriber comments.
From $1 for the first month

Already signed up? LOG IN


The Orion nebula, photographed in 2009 by the Spitzer Telescope.

What if the Big Bang Never Actually Happened?

Relatives mourn during the funeral of four teenage Palestinians from the Nijm family killed by an errant rocket in Jabalya in the northern Gaza Strip, August 7.

Why Palestinian Islamic Jihad Rockets Kill So Many Palestinians

בן גוריון

'Strangers in My House': Letters Expelled Palestinian Sent Ben-Gurion in 1948, Revealed


AIPAC vs. American Jews: The Toxic Victories of the 'pro-Israel' Lobby

Bosnian Foreign Minister Bisera Turkovic speaks during a press conference in Sarajevo, Bosnia in May.

‘This Is Crazy’: Israeli Embassy Memo Stirs Political Storm in the Balkans

Hamas militants take part in a military parade in Gaza.

Israel Rewards Hamas for Its Restraint During Gaza Op