Jerusalem-Born Americans Lose at Top U.S. Court on Passports

Updated on
The Jerusalem skyline.

The Jerusalem skyline.

Photographer: Raquel Lonas/Getty Images

Americans born in Jerusalem can’t designate Israel on their passport as the place of birth, as a divided U.S. Supreme Court struck down a law the Obama administration warned might trigger an uproar in the Middle East.

Siding with the administration, the justices invalidated a 2002 measure that would have given a new right to as many as 50,000 Jerusalem-born U.S. citizens. The decision means passports of U.S. citizens born in the city will continue to say only Jerusalem, without mentioning a country.

The majority said the law undermined the president’s constitutional powers and the longstanding State Department policy of neutrality toward Jerusalem’s status. Palestinians claim the city’s eastern part as a future capital.

The law “would not only prevent the nation from speaking with one voice but also prevent the executive itself from doing so in conducting foreign relations,” Justice Anthony Kennedy wrote for the majority.

The vote was 6-3 on the central question, with Kennedy and Justice Clarence Thomas joining the court’s four Democratic appointees. Thomas wrote separately to say he would have upheld a separate provision the majority didn’t address, involving consular reports of births abroad.

The ruling comes at a time of tense relations between Israeli Prime Minister Benjamin Netanyahu and U.S. President Barack Obama. Netanyahu opposes Obama’s efforts to negotiate a nuclear deal with Iran, and the prime minister’s speech to Congress earlier this year exacerbated the strain.

President’s Power

The Supreme Court case concerned 12-year-old Menachem Binyamin Zivotofsky, whose parents tried since his 2002 birth to have his passport indicate he was born in Israel.

The family’s lawyers said the 2002 law doesn’t challenge the president’s power to make formal recognition decisions and merely gives some people the right to characterize themselves as having been born in Israel.

“Today’s decision is a first,” Chief Justice John Roberts said in dissent. “Never before has this court accepted a president’s direct defiance of an act of Congress in the field of foreign affairs.”

Justices Antonin Scalia and Samuel Alito also dissented. Scalia said the Constitution “divides responsibility for the nation’s foreign concerns between the legislative and executive departments.”

Exercising Sovereignty

The administration said the 2002 law unconstitutionally forced the executive branch to communicate that the U.S. views Israel as exercising sovereignty over Jerusalem.

The administration argued that the Constitution gives the president exclusive power to recognize foreign countries and determine their territorial boundaries. Obama’s lawyers relied largely on a provision that says the president “shall receive ambassadors and other public ministers.”

The administration had warned the court that a decision upholding the law could “provoke uproar throughout the Arab and Muslim world.”

The case was making its second appearance before the justices, who in 2012 ruled in the family’s favor on a preliminary question and said the matter could be resolved in federal court.

The case is Zivotofsky v. Kerry, 13-628.

Before it's here, it's on the Bloomberg Terminal. LEARN MORE