WASHINGTON—Jerusalem’s status, which has sparked conflict for more than three millennia, was no less divisive Monday at the Supreme Court, where the Obama administration argued a 2002 law permitting Americans born in the city to list Israel as their birthplace on U.S. passports is unconstitutional.
While the justices were considering a legal question on separation of powers between the president and Congress, real-world tremors resonated in the courtroom over recent unrest in Jerusalem related to access to the Temple Mount.
It was “a particularly unfortunate week” to hear the case, Justice Elena Kagan said during oral arguments. “Right now, Jerusalem is a tinderbox.”
Presidents Barack Obama and George W. Bush have refused to implement the 2002 law, which would allow passports of Jerusalem-born U.S. citizens to list Israel as their birthplace. At present, such passports simply say: Jerusalem.
Ari and Naomi Zivotofsky, American citizens whose son, Menachem, was born in Jerusalem in 2002, filed a lawsuit challenging the practice. They sought to have his U.S. passport indicate his birthplace as Israel and filed suit after the State Department used Jerusalem instead.
The Zivotofskys attorney, Alyza Lewin, said the law didn’t necessarily imply that the U.S. government had formally recognized Israeli sovereignty over Jerusalem. Rather, it gave “individuals the right to self-identify as they choose that they were born in Israel,” he said.
The U.S. position is that the city’s ultimate status should be negotiated between Israel and the Palestinians, whose authorities aspire to make it the capital of their future state.
Congress, however, has been receptive to Israel’s position. In 1995, it approved the Jerusalem Embassy Act, which calls for relocating the U.S. embassy from Tel Aviv. The law allows the president to waive that requirement for six months for national-security reasons—something presidents have continuously done. In 2002, Congress added the birthplace section to the law, setting up the conflict between the executive and legislative branches.
The Obama administration contends that the law infringes on the president’s authority to recognize foreign governments. It is also concerned that an apparent tilt on the Jerusalem question could alienate Palestinians and undermine U.S. efforts to broker an Arab-Israeli peace settlement.
“The question of the status of Jerusalem is the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades,” Solicitor General Donald Verrilli told the court. People around the world “scrutinize every word that comes out of the U.S. government and every action that the U.S. government takes in order to see whether we can continue to be trusted as an honest broker that could stand apart from this conflict and help bring it to resolution,” he said.
The justices appeared divided on the question. Justice Antonin Scalia suggested Congress could have a say on the matter. If it has the authority to regulate passports, he said, “that the State Department doesn’t like the fact that it makes the Palestinians angry is irrelevant.”
Justice Sonia Sotomayor , however, said that by listing Israel as the birthplace when the U.S. government doesn’t recognize Jerusalem as part of Israel, “they’re asking the government to lie.”
The Constitution is vague over the assignment of diplomatic powers. The president “shall receive ambassadors and other public ministers,” it says, without elaboration. The executive branch has taken that as sweeping authority over foreign affairs, sometimes with resistance from Congress.
Justice Anthony Kennedy proposed that the State Department could resolve the issue by complying with the 2002 law and adding a disclaimer. How about, he suggested, adding a notice stating: “This passport does not indicate that the government of the United States and the secretary of state recognize that Israel has sovereign jurisdiction over [Jerusalem].”
“I appreciate the appeal of that idea, Justice Kennedy,” Mr. Verrilli replied. But “the very need to make the statement calls the credibility of the president’s representation of our recognition position into question.”
About 100,000 Americans have passports stating they were born in Israel, while another 50,000 U.S. passports list Jerusalem as the birthplace, the plaintiffs said. Those who object to listing Israel as their birthplace can instead be identified by the city or region of birth, a policy that the State Department also extends to other areas if a citizen insists.
A decision in the case, Zivotofsky v. Kerry, is expected before July 2015.
Write to Jess Bravin at firstname.lastname@example.org