Courts can decide if Jerusalem-born Americans can list Israel as birthplace

March 27, 2012

The Supreme Court ruled Monday that federal courts should decide whether a law that allows Jerusalem-born Americans to list Israel as their birthplace on their U.S. passports is constitutional.

The justices, on a judgment of 8 to 1, overturned a lower-court ruling that said the judiciary could not get involved in a political fight mixing Middle Eastern politics with a dispute between Congress and the president.

“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,” said Chief Justice John G. Roberts Jr., who wrote the majority opinion.

But because the lower courts never ruled on the merits of the law — only that judges should not get involved — he said the high court did not have enough facts to determine the law’s constitutionality.

“Ours is a court of final review and not first view,” said Roberts, who sent the case back to the lower courts for another hearing.

The parents of Jerusalem-born Menachem Zivotofsky sued the State Department after it wouldn’t issue the boy a passport showing that he was born in Israel. The United States has refused to recognize any nation’s sovereignty over Jerusalem since Israel’s creation in 1948.

At the time, Jerusalem was divided, with Israel controlling the western part of the city and Jordan holding sway over the eastern sector, which includes key Jewish, Muslim and Christian holy sites. Israel captured east Jerusalem from Jordan in the 1967 Six-Day War, annexed the area and proclaimed the city its capital. The Palestinians claim east Jerusalem as their capital.

The international community does not recognize the Israeli annexation and says the fate of the holy city should be resolved through negotiations.

Congress passed the legislation seeking to give Americans born in Jerusalem the right to have Israel listed as their birthplace in 2002, but Republican and Democratic administrations have refused to enforce it. The government said the passport policy is in line with long-standing U.S. foreign policy that says the status of Jerusalem should be resolved between Israel and the Palestinians.

Justice Stephen G. Breyer was the only dissenter on the court, saying there is a “serious risk” that judicial “intervention will bring about ‘embarrassment,’ show lack of ‘respect’ for the other branches, and potentially disrupt sound foreign policy decision making.”

The U.S. Court of Appeals for the District of Columbia Circuit agreed, saying that the federal judiciary has no authority to consider the matter.

— Associated Press

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