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Supreme Court: Jerusalem Passport Issue A Matter For Lower Courts

Nathan Lewin

Nathan Lewin

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The U.S. Supreme Court returned to the lower courts the issue of whether Americans born in Jerusalem may list “Israel” on their passports – a ruling that drew praise from Jewish groups. The decision delivered Monday was a success for the family of Jerusalem-born boy Menachem Zivotofsky. His family for years has sought to force the State Department to agree to state on his passport that he was born in Israel, citing a law passed by Congress in 2002.

President George W. Bush signed the law, but in doing so refused to implement it, citing executive prerogative in foreign policy. President Obama has continued that practice.

The Supreme Court, in an 8-1 decision, overruled lower court decisions that had contended that the judicial branch does not have authority over this area since it is not the courts’ place to determine foreign policy.

“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,” Chief Justice John Roberts wrote for the majority.

Justice Stephen Breyer dissented.

National Jewish groups backed the Zivotofskys and submitted friend of the court briefs on their behalf.

Among the first groups to welcome the latest decision was the Orthodox Union.

“With the ruling by the high court, Congressional policy on Jerusalem, ignored by successive administrations, will get its day in court,” the OU said in a statement.

Nathan Lewin, who argued the Zivotofsky case before the Supreme Court, said, “We are gratified that the Supreme Court overwhelmingly reversed the lower court decision that had dismissed the lawsuit we brought to enable American citizens born in Jerusalem to designate ‘Israel’ as their place of birth on passports and birth certificates. The lower court had refused to enforce a duly enacted law…that gave U.S. citizens this right. That ruling was based on the erroneous assertion that our lawsuit presented a ‘political question’ that a court could not decide.

“As a result of the Supreme Court’s decision we will now be presenting to the Court of Appeals our arguments that Congress acted constitutionally, and that the Department of State may not unilaterally choose to disobey the Congressional mandate.”

– JTA, Jewish Press staff

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