Supreme Court orders judicial solution to Congress-State dispute on Jerusalem

Federal courts are fully capable of resolving a bitter clash between the executive branch and Congress over the disputed status of Jerusalem, the US Supreme Court ruled on Monday.

The high court voted 8 to 1 to reject a decision by a federal appeals court in Washington that the highly emotional foreign policy dispute was best resolved by the political branches of government – rather than by unelected federal judges.

At issue in the case is whether Congress overstepped its authority when it passed a law instructing the US State Department to list Israel as the birthplace for American citizens born in Jerusalem.

The law is in direct conflict with a long-held State Department policy that the passports of Americans born in Jerusalem list the place of birth as simply “Jerusalem,” to avoid a false suggestion that US policy had changed concerning the disputed status of the city.

The lower courts had declined to wade into the diplomatic morass. But on Monday, the Supreme Court told the federal judiciary, in effect, to man-up.

“The courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the executive by the Constitution,” Chief Justice John Roberts wrote in the 12-page majority opinion.

The justices vacated the appeals court decision and remanded the case back to the lower courts for a trial. “The only real question for the courts is whether the statute is constitutional,” Chief Justice Roberts wrote.

The case, Menachem Binyamin Zivotofsky v. Clinton (10-699), is a showdown between competing claims to power over US foreign policy, with the legislative branch embracing an approach that heavily favors Israel on the Jerusalem question, and the executive branch maintaining the US government’s longstanding neutrality on the future status of the holy city.

The clash of governmental titans came to a head in a lawsuit filed by Menachem Zivotofsky’s parents. The young Mr. Zivotofsky was born in 2002 in Jerusalem to Naomi and Ari.

Since both parents are US citizens, Menachem is also a US citizen.

The dispute arose when Mrs. Zivotofsky sought to obtain a US passport and overseas US birth certificate for her son. She asked that the documents reflect that her son was born in Israel.

US officials refused. Had her son been born in Tel Aviv or Haifa, Israel would be the listed place of birth. But the status of Jerusalem is in dispute with Israel claiming the entire city as its capital and the Palestinians claiming the eastern half of the city as part of Palestine.

The Zivotoskys objected to having Jerusalem listed as the birthplace. As far as they were concerned their son was born in Israel and his birth documents should reflect that fact. They weren’t much concerned with the possibility of complicating US foreign policy toward the Arab and Islamic world.

They weren’t alone in their opinion. In 2002, Congress attached a provision to the foreign relations budget requiring US officials to list Israel as the place of birth for US citizens born in Jerusalem whenever the citizen or a legal guardian requested such a listing.

That’s precisely what Mrs. Zivotofsky had done.

Although the president signed the foreign relations budget bill into law, his signature included a signing statement declaring the Jerusalem provision unconstitutional. In the statement, then-President George W. Bush said the law would “impermissibly interfere with the president’s constitutional authority to formulate the position of the United States, speak for the nation in international affairs, and determine the terms on which recognition is given to foreign states.” 

The law set up a direct conflict between executive branch regulations stemming from long-standing US foreign policy concerns and a federal law reflecting congressional opposition to US policy as it relates to the disputed status of Jerusalem.

A federal judge threw the Zivotofsky’s lawsuit out, saying it raised a political issue unsuited to judicial resolution and best left to the political branches. A federal appeals court panel agreed.

In sending the case back to the lower courts, the chief justice said the courts were able to resolve the dispute.

“This case does not turn on standards that defy judicial application,” Roberts said. “Resolution of Zivotofsky’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and the passport and recognition powers,” the chief justice said. “This is what courts do.”

In a dissent, Justice Stephen Breyer said that for “prudential reasons” he would leave the resolution of the dispute to the political branches. He said there was a significant risk that judicial involvement in the case might disrupt foreign policy decision-making, show lack of respect for other branches of government, and bring about “embarrassment.”

“I would hold that the political question doctrine bars further judicial consideration of this case,” Justice Breyer wrote.

In his majority opinion, Roberts quoted the 1803 decision in Marbury v. Madison. “It is emphatically the province and duty of the judicial department to say what the law is,” he wrote.

Roberts added: “That duty will sometimes involve the resolution of litigation challenging the constitutional authority of one of the three branches, but courts cannot avoid their responsibility merely because the issues have political implications.”

The decision came as the high court prepared to hear oral argument on Tuesday in a case testing the constitutionality of President Obama’s health-care reform law.

The election-year showdown at the high court could have political implications for the president. In addition, the case will examine whether Congress overstepped its authority in enacting a statute that orders every American to purchase a government-approved level of health care or pay a penalty.