WASHINGTON — The first time Menachem Zivotofsky’s case was before the Supreme Court, Justice Stephen Breyer laid out why courts should stay out of a dispute between Congress and the president over whether Americans born in Jerusalem may list Israel as their place of birth on passports.
The case, Breyer wrote in March 2012, poses a serious risk that intervention by the courts “will bring about embarrassment, show lack of respect for the other branches (of government), and potentially disrupt sound foreign policy decision-making.”
Breyer’s view got just one vote – his own – on the nine-member court. The justices ruled then that courts could referee the dispute between the legislative and executive branches.
Now the case, nearly as old as the 12-year-old Menachem, is back at the high court for argument Monday at a time of acute Palestinian-Israeli tension over Jerusalem and significant strain in Israeli-American relations.
Menachem and his U.S.-born parents want the court to uphold a law passed in 2002 that gives Jerusalem-born Americans the right to have Israel listed as their place of birth on passports. Administrations of both parties have declined to enforce the law because they say it is contrary to long-held U.S. policy that refuses to recognize any nation’s sovereignty over Jerusalem until the Israelis and Palestinians resolve the city’s status through negotiations.
Mirroring the divide, many American Jewish organizations are supporting the family, while the American-Arab Anti-Discrimination Committee backs the Obama administration.
Israel proclaims a united Jerusalem as its eternal capital. The Palestinians say their independent state will have east Jerusalem as its capital. The thorny issue of control of Jerusalem does not look like it will be resolved anytime soon.
East Jerusalem, the section of the city captured by Israel in 1967, has experienced unrest since the summer, with Palestinian youths throwing stones and firebombs at motorists and clashing frequently with Israeli police.
Last week, Israeli Prime Minister Benjamin Netanyahu’s government said it was advancing construction plans to build about 1,000 housing units in that part of the city, setting off strong international criticism. Later in the week, a gunman wounded a prominent Jewish religious activist in an assassination attempt, Israeli police killed his suspected Palestinian assailant and Israel closed all access to Jerusalem’s most sensitive religious site, increasing tensions even more.
At the same time, anonymous criticism of Netanyahu by an administration official underscored the sour state of relations between President Barack Obama and the Israeli leader.
Against this backdrop, the Supreme Court is about to weigh in on an argument that has raged for nearly 20 years.
In 1995 Congress essentially adopted the Israeli position, saying the U.S. should recognize a united Jerusalem as Israel’s capital. Shortly before Menachem’s birth in 2002, lawmakers passed new provisions urging the president to take steps to move the embassy to Jerusalem from Tel Aviv and allowing Americans born in Jerusalem to have their place of birth listed as Israel.
President George W. Bush signed the 2002 provisions into law as part of broader foreign affairs legislation, but noted that that “U.S. policy regarding Jerusalem has not changed.”
Obama has followed suit. “The status of Jerusalem is one of the most sensitive flash points in the Arab-Israeli conflict,” Solicitor General Donald Verrilli Jr., Obama’s top Supreme Court lawyer, wrote in court papers.
Allowing the affected passports to list Israel as the place of birth would be regarded internationally as a reversal of U.S. policy on Jerusalem, Verrilli said.
Backed by the Senate and members of the House of Representatives, the Zivotofskys called the passport policy “unjust and discriminatory” and said changing it would not impair America’s foreign policy.
The state of Texas and advocacy groups that worry about excessive power in the hands of the president also are on Congress’ side. True Torah Jews, a group of anti-Zionist Orthodox Jews, is supporting the administration.
The Zivotofskys sued in 2003 after they were refused a passport for Menachem listing Israel as his place of birth. Lower courts followed the path Breyer described, calling the matter a political question for Congress and the president to resolve without the help of the courts.
But Chief Justice John Roberts wrote the majority opinion rejecting that outcome. “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,” Roberts said.
The federal appeals court in Washington then struck down the law as unconstitutional because it intruded on the president’s authority in foreign relations. That might have been the end of the legal fight, except that the Supreme Court almost always has the last word when a court invalidates a federal law.