Supreme Court rules no Israeli sovereignty over Jerusalem for US passports

The Damascus Gate in Jerusalem's Old City. The US  Supreme Court struck down a law that would let American citizens born in Jerusalem have Israel listed in passports as the country of their birth. (Reuters / Ronen Zvulun)
United States citizens born in Jerusalem cannot list Israel as their place of birth on their American passports, the Supreme Court ruled. The decision is in line with the country’s historical stance on Jerusalem, and overturns part of a 2002 federal law.

On Monday, the Supreme Court handed down its ruling in Zivotofsky v. Kerry, deciding that the American president has the sole authority to recognize who controls Jerusalem, rather than lawmakers. The US has a policy of neutrality regarding the sovereignty of the city. As a result, the petitioner, Menachem Zivotofsky, an American citizen who was born in Jerusalem in 2002, will only have the city of his birth listed on his passport.

At the heart of the case was Section 214(d) of the Foreign Relations Authorization Act for fiscal year 2003. That law said: “For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”

When Zivotofsky was born, his parents asked the American consulate to list “Jerusalem, Israel” as his birth place. Their request was denied, and they sued, based on the newly enacted law.

However, when then-President George W. Bush signed the act, he promptly refused to enact the passport provision.

“Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch,” Bush wrote in a signing statement. “Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.”

The Palestine Liberation Organization Executive Committee, Fatah Central Committee and the Palestinian Authority Cabinet all issued statements when the act was signed, saying that Section 214 (d) “undermines the role of the US as a sponsor of the peace process.”

The Obama administration made the same point before the Supreme Court, arguing that Congress can’t use its authority to regulate passports "to command the Executive branch to issue diplomatic communication that contradicts the government's official position on recognition," Solicitor General Donald B. Verrilli told the nine justices.

"The nations in the region, and frankly people around the world and governments around the world scrutinize every word that comes out of the United States Government and every action that the United States Government takes in order to see whether we can continue to be trusted as an honest broker who could stand apart from this conflict and help bring it to resolution," Verrilli said.

Zivotofsky’s lawyer, however, said that the case was merely about how Americans may identify themselves on their passports.

"We do not claim this is recognition," attorney Alyza D. Lewin said during oral arguments.

By a 6-3 vote, the Supreme Court agreed with the Obama and Bush administrations.

"The President has the exclusive power to grant formal recognition to a foreign sovereign," Justice Anthony Kennedy wrote for the majority. "Congress cannot command the President to contradict an earlier recognition determination in the issuance of passports."

“Recognition is a ‘formal acknowledgement’ that a particular ‘entity possesses the qualifications for statehood’ or ‘that a particular regime is the effective government of a state’,” Kennedy continued. “Legal consequences follow formal recognition… Recognition is a topic on which the Nation must ‘speak… with one voice’.”

In an unusual move, Justice Antonin Scalia issued a dissent from the bench, saying, "The fact that the State Department doesn't like the fact that it makes the Palestinians angry is irrelevant," CNN reported.

Scalia argued in his dissent that Section 214(d) “has nothing to do with recognition,” citing examples from Northern Ireland, pre-1948 Palestine and Taiwan. Chief Justice John Roberts and Justice Samuel Alito joined the dissent.

"A delicate subject lies in the background of this case. That subject is Jerusalem," Kennedy noted in the opinion. Recognition regarding the sovereignty of Jerusalem has always been a delicate subject for the United States’ government.

READ MORE: US Supreme Court to rule on Jerusalem birthplace law

In 1948, the US, via President Harry Truman, formally recognized Israel as a country, but did not recognize Israeli sovereignty over the holy city of Jerusalem. That did not change after Israel took control of the city after the 1967 Arab-Israeli War. Throughout the last 60 years, the US Executive Branch has maintained that “the status of Jerusalem... should be decided not unilaterally but in consultation with all concerned,” which historically includes the Israelis, Palestinians and Jordanians.

When the Supreme Court heard the case in November, SCOTUSblog, which follows and interprets the court, said that the ruling “could have a potentially explosive impact on the US’s role in the Middle East peace process, and possible on the peace process itself.”

While the Israeli government had no formal response to the decision, the Jerusalem Post referred to the ruling as “a major blow to a 13-year-old effort to bolster Jerusalem’s status under American law as an undisputed part of Israel.”

After the Supreme Court’s decision was read, Zivotofsky ‒ now 12 ‒ told reporters, “I'm an Israeli, and I want people to know that I'm glad to be an Israeli."