Supreme Court strikes down ‘born in Israel’ passport law

The Supreme Court ruled Monday that the president alone has the power to recognize foreign nations, and it struck down as unconstitutional a congressional attempt to allow Americans born in Jerusalem to list Israel as their birthplace on passports. The Washington Post reports.

President Obama and President George W. Bush had said the 2002 passport law embraces the interpretation that Jerusalem belongs to Israel, something the executive branch has long held should be settled by the parties in the Middle East. They refused to let the State Department honor such requests.

Justice Anthony M. Kennedy said Congress has a role in managing the nation’s foreign affairs but not in recognizing foreign nations and governments.

“Recognition is a topic on which the nation must speak with one voice,” wrote Kennedy. “That voice must be the President’s.”

The vote to strike down the law was 6 to 3, with the court’s four liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — joining Kennedy’s opinion. Justice Clarence Thomas said the law was unconstitutional, but he did not endorse Kennedy’s reasoning.

Justice Antonin Scalia made his displeasure with the decision more pronounced by reading portions of his dissent from the bench.

“The text and structure of the Constitution divide responsibility for foreign policy, like responsibility for just about everything else, between the two coordinate, equal political branches,” Scalia said. “A principle that the nation must have a single foreign policy, which elevates efficiency above the text and structure of the Constitution, will systematically favor the president at the expense of Congress.”

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. would have also upheld the law.

Roberts joined Scalia’s dissent but also wrote separately to say the court had ventured into unmarked and treacherous territory. He said the majority struck the law “based on the mere possibility that observers overseas might misperceive the significance of the birthplace designation.”

Roberts added: “In the process, the court takes the perilous step — for the first time in our history — of allowing the president to defy an act of Congress in the field of foreign affairs.”

The case was brought by Menachem Binyamin Zivotofsky, a boy born in 2002 who made his second trip to the Supreme Court to present the justices with a major separation of powers case.

There are about 50,000 people like Zivotofsky, and some of them want the option Congress passed in 2002. Bush signed the legislation to which the provision was attached. But he announced that he would not enforce it, saying it violated the U.S. policy of neutrality, and the Obama administration has taken the same position.

Kennedy acknowledged that despite the importance of the recognition power, the word itself is not used in the Constitution. Instead, the document says that the president “shall receive Ambassadors and other public Ministers.”

But he said that scholars acknowledge that as “tantamount to recognizing the sovereignty of the sending state.”

And while Kennedy said the administration was asking for too much in declaring the president has “exclusive authority to conduct diplomatic relations,” he said history and precedent make clear that the executive takes the lead in certain areas.

Presidents throughout history have recognized Israel without acknowledging its hold on Jerusalem, Kennedy said. Congress’s passport legislation, titled “United States Policy with Respect to Jerusalem as the Capital of Israel,” was intended to be a symbolic repudiation of that, he wrote.

“It is clear that Congress wanted to express its displeasure with the president’s policy by, among other things, commanding the executive to contradict his own, earlier stated position on Jerusalem. This Congress may not do.”

When the case got to the Supreme Court three years ago, the issue was whether the judiciary could even settle the dispute or whether it was a “political question” that the executive and legislative branches must hash out.

The court ruled 8 to 1 that the judiciary should settle the matter and sent it back to lower courts. An appeals court ruled for the administration, and Monday’s decision affirmed that ruling.