WASHINGTON – A lawyer for a boy born in Jerusalem whose parents want Israel listed as the birthplace on his U.S. passport tried this week to make a Supreme Court hearing mainly about their wish, but the justices kept upping the ante.
That might mean bad news not just for 12-year-old Menachem Zivotofsky and his family. It could also present a problem for the prospects of U.S. recognition of Jerusalem as Israel’s capital should the court defer to the Obama administration’s argument that a 2002 law allowing the Israel listing infringes on the president’s prerogative to set foreign policy.
Alyza Lewin, the lawyer who represented Zivotofsky in oral arguments at the court Monday, acknowledged that the tenor of questioning indicated support among the justices for the idea that the case hinges on the separation of powers between the executive and legislative branches.
But in parrying some tough questions in her first appearance before the nation’s highest court, Lewin sought to downplay the significance of recognizing Zivotofsky’s birthplace as Israel, saying it was an issue of personal choice and not an attempt to interfere with the president’s right to recognize foreign governments.
“We gave the court alternative arguments, that what you put on a passport does not amount to recognition,” Lewin told JTA.
Monday marked the second time the Supreme Court has heard arguments on the constitutionality of the 2002 law, which allows U.S. citizens born in Jerusalem to have Israel listed as their birthplace on their passports.
The measure was enacted by President George W. Bush, but both he and Obama have declined to enforce it. The Zivotofskys filed suit after the State Department refused their request to list Menachem’s birthplace as Israel.
In 2009, an appeals court ruled that the passport question was a political issue beyond the scope of the judiciary to decide. Three years later, the Supreme Court overruled that finding and ordered the lower court to rehear the case. Last year, the appeals court ruled that the executive branch prevailed on matters of foreign policy, prompting Zivotofsky to appeal again.
The justices seemed skeptical of Lewin’s claim that the Zivotofskys’ bid did not challenge the presidential recognition prerogative.
“What is the effect of this statute other than something that goes to recognition?” Justice Elena Kagan asked.
“This statute is a statute that was created to give individuals the right to self-identify as they choose that they were born in Israel,” Lewin replied.
Anthony Kennedy, usually a swing justice on the nine-member court who more often than not sides with the conservative wing, also seemed skeptical of Lewin’s claim.
“Do you want us to say in our opinion that this is not a political declaration?” he asked.
Lewin answered in the affirmative.
“Well then,” Kennedy said. “I’m not sure why that Congress passed it then.”
Justice Antonin Scalia said the court’s concern was with international law rather than international relations. “If it is within Congress’s power, what difference does it make whether it antagonizes foreign countries?”
“The fact,” he added, “that the State Department doesn’t like the fact that it makes the Palestinians angry is irrelevant.”
The court’s decision, said Justice Samuel Alito, “isn’t going to be based on any view that we may have about whether Jerusalem should be regarded as part of Israel or the capital of Israel.”
Like Bush before him, Obama maintains that changing the wording on passports would damage the American role as a peace broker in the Middle East by favoring an Israeli claim to Jerusalem. Since Israel declared independence in 1948, the United States has maintained that no country has sovereignty over Jerusalem and that the city’s status must be determined by negotiations.
