Supreme Court's Jews Skeptical in Jerusalem Case

On Monday, the U.S. Supreme Court heard oral arguments in the case of Zivotofsky v. Kerry, involving a U.S. citizen born in Jerusalem who wants his passport to list “Israel” as the country of his birth. Currently, U.S. citizens born in Jerusalem–anywhere in Jerusalem, even within the “Green Line” under full Israeli control after 1949–do not have any birth country listed, in spite of a 2002 federal law requiring “Israel” to be listed.

On the surface, this seems like an open-and-shut case. President George W. Bush signed the law in 2002, and Congress was acting within the scope of its foreign policy powers under the Constitution. But Bush issued a “signing statement” indicating that the law did not chance the status of Jerusalem, and now President Barack Obama has followed suit, despite promising to defend Israeli sovereignty over Jerusalem when he ran in 2008.

The case will turn on the question of whether the power to recognize international claims rests (or not) rests with the executive branch. 

In a report barely hiding her bias, National Public Radio’s Nina Totenburg noted that the Court’s conservative members “seemed now quite hostile to executive powers that date back to George Washington’s time.” In contrast, she said, the three Jewish justices, she said–Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan, all liberals–seemed hostile to the plaintiff’s effort to be recognized as born in Israel.

Under the original UN partition plan of 1947–accepted by the Jews of Palestine, and rejected by the Arabs–Jerusalem was to be a city under international sovereignty. That changed when all of the surrounding Arab states attacked Israel after it declared independence upon the expiration of the British Mandate in 1947. Jews maintained control of western Jerusalem, but Jordanian forces expelled Jews from the east and the Old City.

Since the Six Day War in 1967, the city has been unified under Israeli control, with the boundaries between east and west Jerusalem effectively erased, except for the fact that Israeli construction in Jewish neighborhoods across the old boundary often trigger international controversy. Palestinian leaders also incite public fear that Israel intends to change the status of the Temple Mount, where Israel has granted Muslims religious control.

The plaintiff in this case, 12-year-old Menachem Zivotofsky, was born in a hospital well within West Jerusalem, near Israel’s military cemetery and Holocaust memorial–in other words, far from any territory remotely in dispute, except to those Palestinians who reject the existence of Israel entirely and want to destroy it. That ought to render the controversy moot. Solicitor General Donald Verillli even admitted that “The position of the executive is that we recognize, as a practical matter, the authority of Israel over West Jerusalem.”

Yet the Court proceeded as if the actual geography did not matter. Justice Sonya Sotomayor, for instance, harped on the fact that no U.S. government has actually recognized Israeli sovereignty over West Jerusalem.

Justice Anthony Kennedy, who appears–as always–to be the swing vote in the case, appeared to suggest that one compromise could be allowing U.S. citizens to list their birthplace as “Jerusalem, Israel” while printing in the document itself: “This designation is neither an acknowledgment nor a declaration by the Department of State or the President of the United States that Jerusalem is within the borders of the State of Israel.”

Senior Editor-at-Large Joel B. Pollak edits Breitbart California and is the author of the new ebook, Wacko Birds: The Fall (and Rise) of the Tea Party, available for Amazon Kindle.

Follow Joel on Twitter: @joelpollak