American citizens born in Jerusalem have the legal right to have “Israel,” listed on their passports as their place of birth, according to a law Congress enacted in 2002. The Obama administration–and the Bush administration before it–refused to implement that provision, citing the president’s power in Article II of the Constitution. The Supreme Court has now granted review of this case, Zivotofsky v. Kerry, and will likely schedule arguments for this October.
Congress has the power to determine the contents of U.S. passports as part of its absolute authority under Article I, Section 8, Clause 4 of the Constitution to define immigration and citizenship rules for this nation. A passport is an immigration document. On the other hand, the president has complete authority under the Receive Ambassadors Clause of Article II, Section 3 of the Constitution to determine what foreign nations or foreign powers the United States recognizes, and has overall authority over foreign affairs.
Some foreign powers across the globe, along with sympathizers in this country, contest the status of Jerusalem, whether it is part of the Jewish nation-state of Israel. Encouraged by the Jewish and observant Christian communities in America, Congress passed the 2002 law in question to affirm that Jerusalem is part of Israel.
Menachem Zivotofsky–born to American parents while they were in Israel–sought to exercise his right to have his place of birth listed as “Israel.” The U.S. Department of State refused to print it on his passport, instead listing simply “Jerusalem.” The Zivotofsky family filed suit in 2007.
This is the second time this case has gone to the Supreme Court. As Breitbart News explained in our news report on the Court’s first decision, in 2012 in Zivotofsky v. Clinton, the Court reversed a decision of the U.S. Court of Appeals for the D.C. Circuit that had dismissed this case. The lower court had done so under the political question doctrine, where federal courts do not referee certain types of disputes between the two other branches of the federal government.
The Supreme Court held that this case does not fit the requirements for that narrow exception to federal court jurisdiction, that instead, this is a clash between two constitutional provisions, and the courts would have to determine which side wins here–Congress or President Obama. The D.C. Circuit held in 2013 that Obama wins because forcing him to list Jerusalem as part of Israel would impinge upon his power to conduct foreign diplomacy.
Now, the Supreme Court will make a final decision on the matter in one of the first major cases the Court will hear in its next annual term, which starts on October 6, 2014.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.