With a Supreme Court ruling this week, the chances have improved that Menachem Zivotofsky, who was born in 2002, may have a passport by the time of his bar mitzvah that records his birthplace as “Israel” rather than “Jerusalem,” as it now reads.
The high court’s surprising 8-1 ruling did not resolve the case, known as Zivotofsky vs. Clinton, which Menachem’s parents initiated nine years ago. They sought to force the State Department to list “Israel” on his passport, citing a law passed by Congress a month before his birth. But in returning the case to the lower courts, the Supreme Court overruled previous lower court decisions that the judiciary does not have the authority to rule on matters of foreign policy since that is the purview of the executive branch.
“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,” wrote Chief Justice John Roberts for the majority.
Only Justice Stephen Breyer dissented, saying this was a rare case where a presidential decision should be beyond review.
The issue at hand may be passports, but the deeper and politically sensitive matter is whether or not the U.S. should recognize Jerusalem as the capital of Israel, whose international status remains in dispute.
President George W. Bush signed the 2002 law that would have the State Department record Israel as the birthplace of children born in Jerusalem. But Bush said he would not follow the law because it interferes with presidential power regarding foreign policy. President Barack Obama has followed suit.
Nathan Lewin, the Washington attorney who has handled the case (pro bono) over the last nine years for the Zivotofskys, told us that the high court this week ruled exactly as he had requested in confirming that issues regarding the balance of power between the executive and legislative branches on foreign policy can indeed be determined by the courts.
Now the lower courts will decide whether Congress has the right to authorize listing “Israel” on the passports of children born in Jerusalem.
Most Jewish groups backed the Zivotofsky effort, and the Orthodox Union this week noted, “Congressional policy on Jerusalem, ignored by successive administrations, will get its day in court.”
The decision this week was the first step in a long judicial process still fraught with major political and diplomatic implications. But we would hope that along the way the White House, on its own, would acknowledge that the current passport policy is one of the vestiges of the historically pro-Arab State Department and simply replace “Jerusalem” with “Israel,” noting that not a single brief was filed against the Zivotofsky side by an Arab group.