Can Americans Born in Jerusalem Say They’re From Israel?

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(Photo: Cycling Man / Flickr)

During his now-famous nomination speech, Justice John Roberts remarked that it’s the Supreme Court’s job to call “balls and strikes, and not pitch or bat” when it comes to interpreting the law. Though it may sound a bit silly, this baseball analogy is an apt description of the Court’s role in mediating conflicts between the White House and Congress — even when Israel is up to bat.

The U.S. government is often thought to have a single, unified policy toward Israel-Palestine. But a recent court case over a seemingly simple rule revealed deep divisions between the branches.

The case — Zivotofsky v. Kerry — centered around a 2002 law ordering the State Department to accommodate requests from Americans born in Jerusalem to list “Israel” as their country of birth on their passports. Simple enough, right?

Actually, it isn’t. The U.S. government doesn’t officially recognize divided Jerusalem as belonging to either Israel or the Palestinian territories, leaving control of the city as a matter of “final status negotiation” between the parties. Allowing Jerusalemites to list their birthplace as Israel would contradict this long held policy, implicitly recognizing Israel’s control of the holy city.

Both the Bush and Obama administrations have ignored the law, rejecting requests from Jerusalemites to list “Israel” on their passports. That led Ari Zivotofsky, an American-Israeli citizen, to push the case for his son Menachem to be listed as Israeli-born. After two denials from the State Department, Zivotofsky decided to take legal action, spawning a case that lasted 13 years.

Far from a matter of simple semantics, the case prompted a debate over who gets to shape U.S. foreign policy, particularly on sensitive issues such as sovereignty over Jerusalem.

 The Supreme Court ruled in favor of the State Department, on the basis that it’s the president’s responsibility to diplomatically engage with other nations. The law was struck down, in Justice Stephen Breyer’s words, because the “case presents a political question inappropriate for judicial resolution.”

In his majority opinion, Justice Anthony Kennedy recognized the president’s exclusive power to treat with foreign nations, stating the United States “must speak with one voice. That voice is the president’s.”

Striking down this provocative law signals the judiciary’s support for the presidential role in diplomacy, and a check on Congress’ attempt to usurp this responsibility.

This decision comes amid months of strained relations between Israel and the United States. It also signals an ongoing tension within the U.S. government itself, particularly between the White House and a Congress that tilts noticeably right on issues related to Israel.

Repealing this law relegates diplomatic agency back to the president, a move that seems to have settled the divide for now. This resolution also showcases a degree of nuance in otherwise “unconditional” U.S. support for the Jewish state.

Laith Shakir is a fellow of the Next Leaders program at the Institute for Policy Studies in Washington, DC.