NCPA - National Center for Policy Analysis

Can a Passport Interfere with Foreign Policy? The Case of Zivotofsky v. Kerry

November 5, 2014

On Monday, the Supreme Court heard oral arguments in the case of Zivotofsky v. Kerry. The case involves an American child, Menachem Zivotofsky, of two American parents. His mother gave birth to him in Jerusalem in 2002, and -- in short -- the question is whether he can list "Israel" as the place of birth on his passport.

Amy Howe at SCOTUSblog explains the case. She writes that American policy since 1948 has been not to recognize any country as specifically having sovereignty over Jerusalem. In 2002, however, Congress passed a law that required the Secretary of State to allow an American citizen born in Jerusalem to list "Israel" as his place of birth on his passport. But when President Bush signed the law, he added a signing statement alleging that the law interfered with the Executive Branch's ability to conduct foreign affairs.

So, when Zivotofsky applied for his American passport and asked that "Israel" be listed as his place of birth, the State Department said no. Now, the case has found its way to the Supreme Court. In Monday's oral arguments, Donald Verrilli, the U.S. Solicitor General, contended that allowing the 2002 law to stand would undermine the country's credibility in pushing for peace in the Middle East and said that there were public demonstrations in Jerusalem when the law was passed. But Zivotofsky's lawyers called Verrilli's claims "grossly exaggerated," insisting that a U.S. passport is nothing more than a travel document. Listing Zivotofsky's birthplace as that of "Israel," she argued, would not amount to official government recognition that Israel is sovereign over Jerusalem.

Howe says the justices seemed split on the issue, with Justices Ginsburg and Kagan criticizing Zivotofsky's arguments. Justice Alito, on the other hand, questioned whether the 2002 law was really that consequential, and Justice Scalia suggested that if the law fell under Congress' power to regulate passports, the fact that it might antagonize other countries should make little difference. Howe reports that it was not clear how Justice Kennedy, likely the deciding vote, would rule.  

Source: Amy Howe, "Jerusalem passport case divides Court: In Plain English," SCOTUSblog, November 4, 2014.


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