After years of litigation, the Supreme Court on Monday said it would decide if Congress or the State Department has the final say in whether U.S. passports acknowledge Jerusalem as part of Israel.
This touches on one of the most sensitive issues in decades of Middle East conflict, and the case also presents a major separation-of-power conflict between the legislative and executive branches.
The controversy is over a 2002 law passed by Congress regarding passports. It says that a U.S. citizen born in Jerusalem may request his or her birthplace to be listed as Israel. This was an attempt to nullify State Department instructions that only “Jerusalem” be listed, a recognition of the official U.S. policy of neutrality over national sovereignty of the holy city.
The directive was inserted into a broader spending bill that President George W. Bush signed, even as he announced that his administration would not carry out Congress’s passport dictate. The Obama administration has adopted the same view: that Congress was intruding on the executive’s responsibility for making the nation’s foreign policy.
The case was brought by Ari and Naomi Zivotofsky, U.S. citizens whose son, Menachem Binyamin, was born in a western Jerusalem hospital in 2002. They want the boy’s passport to say he was born in Israel.
“All that happens with this statute is that 50,000 American citizens have the same passport as 100,000 other American citizens who were born in Tel Aviv or Haifa,” the couple’s attorney, Nathan Lewin, told the Supreme Court in 2011, the first time the court considered the statute. “It just says ‘Israel.’ It doesn’t say ‘Jerusalem, Israel.’ ”
At that time, the justices were considering a lower court decisionthat said the issue was a “political question” that was not open to judicial review but must be worked out between the two other branches of government.
In the case, the Supreme Court ruled 8 to 1 that this view was wrong and sent it back to lower courts. On remand, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of the executive branch.
U.S. Solicitor General Donald B. Verrilli Jr. had told the justices there was no reason to review the decision of the court of appeals. The ruling, he said, allows the executive branch to continue its “longstanding practice of refraining from taking any official action that could constitute, or be interpreted as, recognition of any foreign government’s sovereignty over Jerusalem.”
As is customary, the justices on Monday did not comment on the decision to review the case, Zivotofsky v. Kerry. It will be heard in the term that begins in October.
In other action, the justices maintained their reluctance to provide guidance to courts considering appeals from suspected terrorists detained at Guantanamo Bay or respond to lawyers who say the lower courts are holding the government to less-than-demanding standards.
The court turned down a petition from Abdul al Qader Ahmed Hussain, who was captured in Pakistan in 2002. The government says he was among Taliban forces on a battlefield in Afghanistan and was carrying a rifle.
His lawyers said the D.C. Circuit reviewing the detentions is not following the dictates of a 2008 Supreme Court ruling that the suspects could challenge their detentions. But the detainees have not been successful, and the justices have declined to review those decisions.
While the court refused to hear Hussain’s case, Justice Stephen G. Breyer said in a statement that there might be an issue the court should review.
Breyer said the court has not directly addressed whether the Authorization for Use of Military Force passed in September 2001 or the Constitution allows the detention of someone because “the individual was part of al-Qaeda, or part of the Taliban, but was not ‘engaged in an armed conflict against the United States’ ” prior to his capture.
The language about being engaged in armed conflict is from a 2004 decision in which the court agreed that the law authorizes the president to detain enemy combatants.
Breyer said the court also has not considered the permissible duration of the detention.
Breyer said Hussain’s situation may contain some of those concerns, but his petition did not properly raise them. But Breyer’s statement indicated that at least one justice might be willing to consider such arguments in a different case.
The case is Hussain v. Obama.
Additionally, the court said it would not review a lower court’s decision that rejected a plan by Florida Gov. Rick Scott (R) to randomly test thousands of state employees for drug use.
The U.S. Court of Appeals for the 11th Circuit said drug tests might be warranted for employees in some sensitive jobs, but Scott’s executive order to test all employees was too broad.
The case is Scott v. American Federation of State, County and Municipal Employees.