WASHINGTON — The Supreme Court agreed Monday to hear an appeal from an American born in Jerusalem over whether he can have Israel listed as his birthplace on his passport even though U.S. policy does not recognize the once-divided city as belonging to Israel.
The court is stepping into a case that mixes the thorny politics of the Middle East and a fight between Congress and the president over primacy in foreign policy.
The justices will review an appeals court ruling against Jerusalem-born Menachem Zivotofsky and his parents, U.S.-born Jews who moved to Israel in 2000. They filed a lawsuit after State Department officials refused to list Israel as Menachem’s birthplace.
The boy was born in a Jerusalem hospital in October 2002, shortly after Congress directed, in a federal law, that Americans born in Jerusalem may have Israel listed as their place of birth. But the Bush administration said Congress may not tell the president what to do regarding this aspect of foreign relations. The Obama administration agrees with its predecessor.
When the high court hears arguments in the fall, the issues will be whether the congressional directive impermissibly interferes with the president’s power, and whether the courts should play any role in the dispute between Congress and the president.
The State Department’s longstanding policy has been to refrain from expressing a view about Jerusalem’s status, despite the congressional action as well as Israel’s assertion of sovereignty over all of Jerusalem and declaration of the city as its capital. Israel’s victory in the 1967 Six-Day War brought the entire city under Israeli control.
The U.S., which keeps its embassy in Tel Aviv, and most nations do not recognize Jerusalem as the capital and say the city’s status should be resolved in negotiations between Israel and the Palestinians.
Ari Zivotofsky, the boy’s father, said in an interview in Israel that he considers Jerusalem part of Israel. “As a U.S. citizen and a resident of Israel, I find it a little bit strange that the U.S. doesn’t recognize Israeli sovereignty over Jerusalem, and certainly the western half, where the hospital is located,” he said.
“Jerusalem is subject to dispute as to its future status. Its current status seems to me pretty clear. When the U.S. government mails its consular officials mail, they mail it to Jerusalem, Israel,” he said.
The case is Zivotofsky v. Clinton, 10-699.
Had Menachem been born in Tel Aviv, the State Department would have issued a passport listing his place of birth as Israel. The regular practice for recording the birth of a U.S. citizen abroad is to list the country where it occurred.
But the department’s guide tells consular officials, “For a person born in Jerusalem, write Jerusalem as the place of birth in the passport.”
Israel’s supporters in Congress have long objected to the official position on Jerusalem. In 1995, Congress essentially adopted the Israeli position, saying the U.S. should recognize a united Jerusalem as Israel’s capital. Then in 2002, lawmakers passed new provisions urging the president to take steps to move the embassy to Jerusalem and allowing Americans born in Jerusalem to have their place of birth listed as Israel.
The measures were part of a large foreign affairs bill that President George W. Bush signed into law. But even as he did so, Bush issued a signing statement in which he said that “U.S. policy regarding Jerusalem has not changed.” The president said Congress could not tell him what to do in this matter of foreign affairs.
Presidential signing statements, which have been used for centuries, became a point of controversy during Bush’s presidency. He issued them more often than any other president. Democrats in Congress complained that he used them to pick and choose parts of legislation he could ignore, overstepping his bounds as president.
After the Zivotofskys took their complaint to federal court in 2003, a judge refused to get in the middle of the dispute over Jerusalem’s status. It was a political question, the judge said, for Congress and the president to work out without the intervention of the courts.
U.S. District Judge Gladys Kessler said that if the courts were to get involved in a case about Jerusalem’s status, “a controversial reaction is virtually guaranteed. Such a reaction can only further complicate and undermine United States efforts to help resolve the Middle East conflict.”
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed that it had no authority to consider the claim.
One appellate judge, Harry Edwards, said he disagreed with his colleagues. But he would have ruled against the Zivotofskys. Edwards said the Constitution clearly gives the president exclusive power in this area and that it was important for the courts to say so.
The Supreme Court said Monday it will consider that question, as well as the issue of judges’ authority to settle Zivotofsky’s claim.