Washington - The Supreme Court on Monday waded warily into Middle Eastern politics and a dispute between Congress and the president in the case of a 9-year-old Jerusalem-born American who wants his passport to say he was born in Israel.
The justices appeared unlikely to rule for Menachem Zivotofsky, whose family sued the government after State Department officials refused to list Israel as his place of birth in his American passport.
Menachem and his parents flew from Israel and were at the high court Monday for the arguments in his case.
The Obama administration says the passport policy is in line with longstanding U.S. foreign policy that says the status of Jerusalem should be resolved in negotiations between Israel and the Palestinians.
But Congress passed a law in 2002 seeking to give Americans born there the right to have Israel listed as their birthplace.
The justices seemed reluctant to question the administration’s position that the law was an improper congressional attempt to speak for the country on foreign policy.
Justice Elena Kagan said the congressional action read more like a foreign policy statement than a passport law.
“It’s a passport statute that seems to have nothing to do with immigration functions that passport statutes usually serve,” Kagan said.
Chief Justice John Roberts said that it seemed that the family was asking the court to substitute its foreign policy judgment for the president’s, as if to say “we know foreign policy better; we don’t think it’s going to be a big deal.”
Nathan Lewin, a Washington lawyer representing the family, said the law concerns the ability of people to identify themselves as they wish. “It was not designed to create a kind of political brouhaha,” Lewin said.
On the other hand, Lewin said that Congress has considerable foreign affairs powers and the president cannot simply ignore the law.
But Solicitor General Donald Verrilli Jr., arguing for the administration, said the Constitution gives the president exclusive authority in this area because it would hurt U.S. interests on the world stage if the country spoke with more than one voice.
Federal courts have so far said they have no authority to consider the matter, which they have labeled a political dispute that is best resolved by the other two branches of government without court involvement.
The Supreme Court is considering the political dispute issue, as well as the substance of the family’s plea that the law regarding passports be enforced.
The administration, like its Republican and Democratic predecessors, says it doesn’t want to stir up anger in the Arab world by appearing to take a position on the ultimate fate of Jerusalem.
The Justice Department says the U.S. has consistently declined 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 that includes key Jewish, Muslim and Christian holy sites
Israel captured east Jerusalem from Jordan in the 1967 Mideast war, annexed the area and proclaimed the once-divided city as 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.
The passport restriction applies to people born anywhere in Jerusalem, including the hospital in the western part where Menachem was born in 2002.
Thirty-nine lawmakers from both parties in Congress are siding with the boy and his parents, defending a provision in a 2002 law that allows Israel to be listed as the birthplace for Americans born in Jerusalem.
President George W. Bush signed the much larger law, but said the provision on Jerusalem interfered with his power over foreign affairs, including the authority to recognize foreign states. Bush issued a signing statement at the time in which he said that “U.S. policy regarding Jerusalem has not changed.”
In late 2002, Naomi Zivotofsky, Menachem’s mother, showed up at the U.S. embassy in Tel Aviv to get her baby a U.S. passport, one that listed Israel as his birthplace. After State Department officials refused her request, the family sued.
The family also argues that the State Department has made an exception for U.S citizens born in Taiwan. Their passports may list their place of birth as Taiwan, rather than China.
At one point, Lewin noted that the State Department already gives people born before Israel’s creation in 1948 the option to say they were born in Palestine.
The youngest justice, born in 1960, chimed in. “Well, you have to be very old to say Palestine,” Kagan said.
That brought a quick response from the oldest member of the court, one of four justices born before 1948.
“Not all that old,” said Justice Ruth Bader Ginsburg, 78.
A decision is expected by spring.
The case is Zivotofsky v. Clinton, 10-699.
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