The Supreme Court ruled on Monday in the case of Zivotofksy v. Kerry that the Constitution does not permit Congress to force the president to allow a U.S. citizen born in Jerusalem to list his birthplace as “Israel” in his American passport.
The 6-3 majority opinion by Justice Anthony Kennedy (joined in part by Justice Clarence Thomas) held that because the executive branch had the power to recognize foreign states, acknowledging Israeli sovereignty in Jerusalem would infringe on that power.
In a blistering dissent, Chief Justice John Roberts argued that recognition was not the issue, but rather the ability of U.S. citizens to identify their birthplace. The majority, he said, twisted itself into knots to avoid implicating what a foreign observer might think of a U.S. passport.
The result was that “the Court takes the perilous step–for the first time in our history–of allowing the President to defy an Act of Congress [the Foreign Relations Authorization Act of 2002] in the field of foreign affairs.”
In his own dissent, Justice Antonin Scalia argued that the presidential power to recognize foreign states is not clearly exclusive. Like Chief Justice Roberts, he argues that recognition is not the issue, and observes that the plaintiff just wanted the ability to list his own birthplace as “Israel,” not to require that others do so.
Presidents of both parties have resisted efforts by Congress to acknowledge Israeli sovereignty over Jerusalem–even West Jerusalem, which is firmly outside the “Green Line” that served as a boundary between Israel and the Jordanian-held West Bank now claimed by Palestinians as the basis for a future state. Whether moving the U.S. embassy from Tel Aviv to Jerusalem, or allowing “Jerusalem, Israel” to be listed in passports, presidents of both parties have defied Congress.
In 2008, speaking to pro-Israel activists, then-Sen. Barack Obama pledged: “Jerusalem will remain the capital of Israel, and it must remain undivided.”
Update: To clarify: because of the Court’s ruling, passport holders born in Jerusalem can only list “Jerusalem,” with no country.