The issue of Jerusalem struck home for me as I spent the past two weeks touring the Holy Land with a group from my church. We spent nine days in Jerusalem, and heard from our guide about the political and social controversies facing that city. For one thing, the American embassy is in Tel Aviv, while the consulate is in Jerusalem, because America will not acknowledge Jerusalem as the capital even though many Israelis do since it is their religious hub.
SCOTUS just ruled on a case regarding Israel, striking down a thirteen-year rule that allowed Americans born in Jerusalem to declare themselves Israeli citizens. The ruling in Zivotofsky v. Kerry obviously was a difficult one for the Court since it took seven months to prepare their opinion, which came on Monday in five separate opinions in a six-to-three split. SCOTUS had insisted that they were trying not to interfere in the Middle East controversy by issuing a narrow ruling, yet its passport policy will have ramifications for the future of Israel, Jerusalem, and its relationship with surrounding countries. It will also affect White House-Congress diplomatic sensitivities. You can count on that. Their decision was the most meaningful in regards to the meaning of the Constitution.
This case arose when a thirteen-year-old boy’s parents sued when the State Department would not let him list “Israel” on his passport even though he was born to American citizens while they were living in Jerusalem. The parents wanted the 2002 law upheld. Initially, in 2012, SCOTUS had allowed the case to go forward in lower courts and a federal appeals court struck down the law as violating presidential power. This decision is what SCOTUS upheld in their recent opinion.
Justice Kennedy wrote the opinion, striking down the law in 2002 that had ordered the State Department to list Israel as the place of birth for U.S. citizens who had been born in Jerusalem, if they asked for that notation on official documents. However, President Obama desires to maintain neutrality on the question of which nation controls Jerusalem. Jordan, Syria, Israel, Palestine all want it. That is why the U.S. won’t acknowledge it as the capital.
For the first time in history, the Supreme Court gave the President exclusive power to decide what foreign nations the U.S. will formally acknowledge and that Congress cannot force the President to change his mind. Boy is the President going to have a field day with this (as if he doesn’t abuse his power already). Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor joined in Kennedy’s opinion, although Breyer wrote a brief separate opinion saying that he would prefer it if the Court had stayed out of this dispute, since it was a political issue.
More on Israel in the coming weeks…