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Born in Jerusalem, Country Undecided

1355005253077.cached Israeli soldiers at the Western Wall Anja Niedringhaus / AP

On August 12, 1986, my daughter, Julia, was born in a hospital in Jerusalem, where I was based as a foreign correspondent for The Chicago Tribune. Teddy Kollek, the legendary mayor of Jerusalem, graciously sent my wife and I a tiny amulet for Julia to wear, along with a note that welcomed her as a “sabra daughter”—the term Israelis use to describe their native-born citizens. But when Julia received her first passport from the U.S. Consulate, her place of birth was noted simply as “Jerusalem,” with no country mentioned.

That’s because U.S. policy has long held that the sovereign status of Jerusalem remains unresolved amid competing claims by Israelis and Palestinians. And those claims, Washington says, can only be resolved through diplomacy. As far as I was concerned, no mention of Israel on Julia’s passport made life easier. It meant she could accompany my wife and I when we traveled to Arab countries, most of which were still technically at war with Israel.

Yet for some American Jews, the U.S.’s policy denies what they regard as the immutable reality of Israeli sovereignty over the holy city. Twelve year ago, an American couple decided to challenge that policy in federal court. And on Monday, the U.S. Supreme Court weighed in to settle the matter—in the government’s favor.

In a 6–3 decision, Justice Anthony Kennedy, writing for the majority, said the president alone has the authority to recognize foreign nations. And part of that authority, he said, is the power to determine the language on American passports. “Recognition is a matter on which the nation must speak with one voice,” Kennedy wrote. “That voice is the president’s.”

A Controversial Law

The case goes back to early 2002. That’s when Congress passed legislation that included a controversial provision requiring the State Department to list Israel as the birth country for Americans born in Jerusalem—should the child’s parents or guardians request it. President George W. Bush signed the bill into law, but in a separate statement, the White House said the U.S. would not abide by the passport provision because it impinged upon the president’s constitutional authority to conduct foreign policy.

In October of that year, a boy named Menachem Binyamin Zivotofsky was born in Jerusalem to American parents. They requested the State Department list Israel as their son’s country of birth on his U.S. passport. When the State Department refused, they sued the government in federal court. A federal district court dismissed the case, ruling the suit asked the court to decide the highly sensitive issue of Jerusalem’s sovereignty. A federal appeals court reversed that decision, ruling the question before the court actually involved the constitutionality of the law on which the suit was based. On remand, the appeals court upheld the lower court’s decision. In 2012, Zivotofsky’s parents then won a petition for a Supreme Court hearing. In reversing the lower court’s ruling, Chief Justice John Roberts wrote that the case hinged on whether the law restricted the president’s constitutional foreign policy-making powers.

Monday’s decision left few doubts. It struck down the 2002 law, saying Congress had overstepped its authority. Justice Antonin Scalia read a summary of the dissenting opinion from the bench, noting that the Constitution “divides responsibility for foreign affairs between Congress and the president.” Joining him in the dissent were Roberts and Justice Samuel Alito. In a separate dissent, Roberts warned the court was taking a “perilous step.” “For the first time in our history,” he wrote, the high court was “allowing the president to defy an act of Congress in the field of foreign affairs.”

A Mine-Laden No-Man’s Land

For years, pro-Israel lawmakers have tried to pressure both parties to recognize Jerusalem as Israel’s capital, passing numerous non-binding resolutions to that effect. But Monday’s decision kept in place a consistent U.S. policy toward Jerusalem’s status by both Republican and Democratic administrations since the creation of Israel in 1948. When an armistice ended Israel’s War of Independence a year later, Jerusalem emerged divided, with Israel controlling the western half, Jordan holding the eastern half and a mine-laden no-man’s land running in between.

Because of that division, and each side’s competing claims for the city, the U.S. housed its embassy in Tel Aviv and continues to do so today. Washington does maintain a consulate in Jerusalem, but unlike other U.S. consulates, which take their orders from the resident American ambassador, the Jerusalem consulate reports directly to the State Department in Washington to avoid any suggestion that it’s taking side over the final status of the holy city.

Today, Jerusalem remains one of the thorniest issues of the Israeli-Palestinian conflict. During the 1967 war, Israel occupied the Arab eastern portion of the city, then annexed it. Over the past five decades, Israel has expanded Jerusalem’s limits deeper into the occupied West Bank and built new neighborhoods, where more than 250,000 Jews now live. Palestinians want East Jerusalem as the capital of their own state, but Israel has declared it the country’s “eternal capital,” vowing never to relinquish its sovereignty of the city. No countries recognize Israel’s claim to all of Jerusalem.


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