Court Weighs President's Power To Recognize Nations

The Supreme Court will consider the question of whether U.S. citizens may list "Jerusalem, Israel" as their birthplace on passports.

RENEE MONTAGNE, host: This is MORNING EDITION from NPR News. I'm Renee Montagne.

STEVE INSKEEP: And I'm Steve Inskeep.

Today, the U.S. Supreme Court takes on a case that involves several of the long-running debates in American politics. The story involves the power of the president to make foreign policy and a congressional effort to assert its own power. The story also involves the state of Israel, as well as the status of the city of Jerusalem. All these issues come up in response to a seemingly straight-forward question: Whether U.S. citizens born in Jerusalem can list Israel as their birthplace. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: First, let's look at the big picture. Ever since the creation of the state of Israel in 1948, the U.S. government has declined to recognize Jerusalem as part of any country. Palestinians have long claimed the city as their own, and so have the Israelis.

The U.S. State Department has longed viewed the city's status as one of the key items to be negotiated in a Middle East peace deal. Consequently, the U.S. has avoided even seemingly minor actions that might imply any endorsement of Israeli or Arab sovereignty over the city.

Israel's supporters in Congress, however, have long objected to the U.S. policy, and have sought, through legislation, to force U.S. recognition of Jerusalem as Israel's capital. In 2002, Congress enacted a law urging the president to move the U.S. embassy from Tel Aviv to Jerusalem, and requiring the state department to allow American citizens born in Jerusalem to list their place of birth as Israel on passport documents.

President Bush signed the legislation into law because it was part of a much larger foreign affairs bill, but he added a signing statement saying he would not enforce the passport provision because he viewed it as an unconstitutional encroachment on presidential power.

Although presidential signing statements have been issued for centuries, they became a flashpoint in the Bush administration because of their vastly increased number.

Into this maelstrom was born in Jerusalem the child of Ari and Naomi Zivotofsky, American citizens who immigrated to Israel in 2000 and maintain duel citizenship. But when the parents tried to have Jerusalem, Israel listed as their son's place of birth on his passport, the State Department refused, citing its longstanding policy. Lawyer Nathan Lewin represents the Zivotofskys.

NATHAN LEWIN: Jewish natives of Jerusalem, who are proud of being born in Israel, may not, according to the State Department regulations, have Israel on their passports. They may only say Jerusalem.

TOTENBERG: So the Zivotofskys went to court, contending this policy violated a duly enacted federal law. The Obama administration, echoing the policy of the Bush administration, contends, however, that the law is unconstitutional. John Bellinger served as counsel for the State Department in the Bush administration.

JOHN BELLINGER: Both the Bush and the Obama administration have said that Congress is unconstitutionally infringing on powers that are given by the Constitution only to the president with respect to our foreign relations.

TOTENBERG: Indeed, presidents have long maintained that their constitutional authority to receive ambassadors and other public ministers implies the power to recognize foreign governments and that the president similarly has inherent authority to determine the content of passports in implementing foreign policy. As the bush administration's Bellinger observes...

BELLINGER: Congress could not, for example, well, it's fine that the president has recognized a particular country but we don't think he should recognize a particular corner of it for some reason. That would clearly be unconstitutional. And the view of the executive branch in this case is that that's no different here, that Congress is trying to force the president to recognize Jerusalem as being under the sovereignty of Israel.

TOTENBERG: The Zivotofskys counter that the founders of the nation did not intend to give the president an exclusive role in recognizing foreign nations. President Bush could have vetoed this legislation, they note, but he did not, and thus the law of the land is the congressionally enacted statute, which allows American citizens born in Jerusalem to have Israel stamped on their passports as the country of birth.

The lower courts threw out the Zivotofskys case, saying it involved a political dispute between two branches of government that the courts should stay out of. But Nathan Lewin, the couple's lawyer, contends this case is just like any other test of an existing law.

LEWIN: That's what courts do all the time. They say is a law that Congress enacted constitutional if the president says it interferes with his power.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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