WASHINGTON (JTA) — The U.S. Supreme Court struck down a law that would allow Jerusalem-born U.S. citizens to list their birthplace as Israel. The bid to force the State Department to follow the 2002 law failed in a 6-3 vote announced on Monday, June 8. The decision, a rare judicial branch foray into the centuries-old tension between the legislative and executive branches on how foreign policy is shaped, could have far-reaching consequences on the degree to which congressional legislation may determine presidential decisions on foreign policy.
Presidents George W. Bush and Barack Obama refused to apply the law, arguing that it infringed upon the president’s foreign policy prerogative. It has been U.S. policy since Israel’s founding not to recognize Jerusalem as Israeli. Justice Anthony Kennedy, who has swung between the left and the right, wrote the majority opinion, backed by the bench’s four liberal judges, among them three Jewish justices, and one of its conservatives, Clarence Thomas. The three dissenters, Justices Antonin Scalia and Samuel Alito and Chief Justice John Roberts, are all conservative.
The focus of the case was Menachem Zivotofsky, now 12, whose parents sought the passport listing not long after he was born. An array of pro-Israel groups backed the Zivotofskys in friend-of-the-court briefs, although at least one, Americans for Peace Now, supported the executive prerogative in determining foreign policy. A spokesman for Israel’s Foreign Ministry following the decision said, “We do not react publicly to foreign court rulings.”