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Supreme Court Rules on Jerusalem Passport Issue

by Pete Williams /  / Updated 

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The U.S. Supreme Court ruled Monday against the American citizen parents of a boy born in 2002 in Jerusalem who wanted his passport to list the place of birth as "Jerusalem, Israel."

"A delicate subject lies in the background of this case. That subject is Jerusalem," wrote Justice Anthony Kennedy, author of the majority decision.

The Supreme Court was asked to choose between two different branches of government that have waded in on the passport issue. The State Department, which issues passports, refused the parents request. It did so in conformance with a long running U.S. policy to list the place of birth for Americans born in that city as simply, "Jerusalem."

"The President has the exclusive power to grant formal recognition to a foreign sovereign," the court ruled Monday by a 6-3 vote. "Congress cannot command the President to contradict an earlier recognition determination in the issuance of passports."

Taking the unusual step of announcing his dissent from the bench, Justice Antonin Scalia said the court went too far. Deciding what to put on the passport "has no effect whatsoever on international law. Prescribing it cannot possibly be thought to invade the President's recognition power."

Chief Justice John Roberts and Justice Samuel Alito joined in the dissent.

The administration, under presidents of both parties, has insisted that because sovereignty over Jerusalem is one of the major sticking points in any Middle East peace agreement, the U.S. would remain neutral. Being forced to say that Jerusalem was under the control of Israel, the idea went, would be taking sides.

Congress, however, did take sides, passing a law in 2002 that directed the State Department to identify any U.S. citizen born in Jerusalem as born in Israel, if the parents so requested.

President George W. Bush signed the law but said it interfered with a president's ability to conduct foreign policy.

The Obama administration had urged the Supreme Court to rule that conducting foreign policy is the province of the executive, not Congress, and to leave this third rail of Middle East politics alone. "The status of Jerusalem is one of the most sensitive flash points in the Arab-Israeli conflict," the Justice Department warned.

Taking the unusual step of announcing his dissent from the bench, Justice Antonin Scalia said the court went too far. Deciding what to put on the passport "has no effect whatsoever on international law. Prescribing it cannot possibly be thought to invade the President's recognition power."

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