Court: Judges can rule on passport law (AP) Associated Press) By JESSE J. HOLLAND WASHINGTON 03/26/12)
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WASHINGTON (AP) — The Supreme Court ruled Monday that the federal
courts should decide whether a law that would allow Jerusalem-born
Americans to list Israel as their birthplace on their U.S. passport
passes constitutional muster.
The justices, on an 8-1 judgment, overturned a lower court ruling
that said the judiciary could not get involved in a political fight
mixing Middle Eastern politics with a dispute between Congress and
"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," said Chief Justice
John Roberts, who wrote the majority opinion.
But because the lower courts never actually ruled on the merits of
the law giving Americans born in Jerusalem the right to have Israel
listed as their birthplace — only that judges should not get
involved — Roberts said the high court did not have enough facts to
determine the law´s constitutionality.
"Ours is a court of final review and not first view," said Roberts,
who sent the case back down to the lower courts for rehearing.
The parents of Jerusalem-born Menachem Zivotofsky sued the State
Department after it wouldn´t issue the boy a passport showing he was
born in Israel. The United States has refused to recognize any
nation´s sovereignty over Jerusalem since Israel´s creation in 1948,
so his passport only says "Jerusalem" as his birthplace.
At the time, Jerusalem was divided, with Israel controlling the
western part of the city and Jordan holding sway over the eastern
sector that includes key Jewish, Muslim and Christian holy sites.
Israel captured east Jerusalem from Jordan in the 1967 Mideast war,
annexed the area and proclaimed the once-divided city as its capital.
The Palestinians claim east Jerusalem as their capital.
The international community does not recognize the Israeli annexation
and says the fate of the holy city should be resolved through
Congress passed the law seeking to give Americans born there the
right to have Israel listed as their birthplace in 2002; but
Republican and Democratic administrations have refused to enforce it.
The government said the passport policy is in line with longstanding
U.S. foreign policy that says the status of Jerusalem should be
resolved in negotiations between Israel and the Palestinians.
Justice Stephen Breyer was the only dissenter on the court, saying
there is a "serious risk" that judicial "intervention will bring
about ´embarrassment,´ show lack of ´respect´ for the other branches,
and potentially disrupt sound foreign policy decision making."
The U.S. Court of Appeals for the District of Columbia Circuit
agreed, saying that the federal judiciary has no authority to
consider the matter, which they have labeled a political dispute that
is best resolved by the other two branches of government without
The Obama administration, like its Republican and Democratic
predecessors, says it doesn´t want to stir up anger in the Arab world
by appearing to take a position on the ultimate fate of Jerusalem.
But Roberts said the question before the court is not a political one.
"The federal courts are not being asked to supplant a foreign policy
decision of the political branches with the courts´ own unmoored
determination of what the United States policy toward Jerusalem
should be," Roberts said. "Instead, Zivotofsky requests that the
courts enforce a specific statutory right. To resolve his claim, the
judiciary must decide if Zivotofsky´s interpretation of the statute
is correct, and whether the statute is constitutional. This is a
familiar judicial exercise."
The passport restriction applies to people born anywhere in
Jerusalem, including the hospital in the western part where Menachem
was born in 2002.
In late 2002, Naomi Zivotofsky, Menachem´s mother, showed up at the
U.S. embassy in Tel Aviv to get her baby a U.S. passport, one that
listed Israel as his birthplace. After State Department officials
refused her request, the family sued.
The family argues that the State Department has made an exception for
U.S citizens born in Taiwan. Their passports may list their place of
birth as Taiwan, rather than China. They also note that the State
Department gives people born before Israel´s creation in 1948 the
option to say they were born in Palestine. (© 2012 The Associated
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