Court Sides With President Over Congress In 'Jerusalem' Passport Dispute : It's All Politics In a 6-3 decision, the high court sided with the White House over Congress on the thorny foreign policy issue.
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Court Sides With President Over Congress In 'Jerusalem' Passport Dispute

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Court Sides With President Over Congress In 'Jerusalem' Passport Dispute

Court Sides With President Over Congress In 'Jerusalem' Passport Dispute

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ROBERT SIEGEL, HOST:

Today, the U.S. Supreme Court sided with President Obama. The case was tied to a long-running struggle with Congress - a struggle over who controls recognition of foreign countries, their boundaries and what information about nationhood may be put on the passports of American citizens. In a 6 to 3 decision, the high court struck down a law requiring the State Department to indicate on passports that the city of Jerusalem is part of Israel. It was a blow to the pro-Israel lobby and to congressional power over certain parts of foreign policy. NPR legal affairs correspondent Nina Totenberg has the story.

NINA TOTENBERG, BYLINE: Ever since the founding of Israel in 1948, the U.S. has taken the position that no country has sovereignty over Jerusalem until its status is negotiated in a Middle East peace deal. Israel supporters in Congress, however, have tried to force a different policy, seeking to move the U.S. embassy from Tel Aviv to Jerusalem and requiring, as a matter of law, that the State Department allow U.S. citizens born in Jerusalem to list Israel as their place of birth on their passports. The Bush administration and the Obama administration both refused to comply with the passport mandate, contending that it unconstitutionally infringed on the president's foreign policy powers. Enter Menachem Zivotofsky, born in Jerusalem 12 years ago to American parents who emigrated to Israel and now maintain dual citizenship. The Zivotofskys wanted their son's place of birth on his passport to say Israel, not just Jerusalem, and they sued to force the State Department to comply with the federal law that would have done that. The case went twice to the Supreme Court, but on the second time around the justices did something they've never done before. They struck down a law passed by Congress in the field of foreign affairs. The court majority agreed with the president that the power to recognize foreign countries lies exclusively and conclusively with the executive branch. Writing for the majority, Justice Anthony Kennedy said this - put simply, the nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not. Recognition is a topic on which the nation must speak with one voice and that voice must be the president's.

The decision was greeted with dismay by Israel's supporters.

ELIOTT ENGEL: I think this is a very, very wrong decision.

TOTENBERG: Eliott Engel is the ranking Democrat on the House Foreign Affairs Committee and was a leading sponsor of the law invalidated today.

ENGEL: I think their decision pretty much, you know, ends this dispute. I don't know if there's much we can do right now.

TOTENBERG: Engel noted that presidents of both parties have taken the position that prevailed in the Supreme Court today while large bipartisan majorities in Congress have disagreed. In light of that, professor Justin Levitt of Loyola University in Los Angeles suggests that the decision might have political consequences.

JUSTIN LEVITT: I would expect some of these groups that have historically lobbied for Israel to try and make that a significant campaign issue in the upcoming campaign.

TOTENBERG: Inside the foreign policy community, though, there was clear relief. Harvard Law professor Jack Goldsmith served as head of the office of legal counsel in the George W. Bush administration. Today's victory, he said, is more than symbolic.

JACK GOLDSMITH: It's a big precedent for presidential power generally in the context of foreign relations.

TOTENBERG: Richard Haass, president of the Council on Foreign Relations, served in top foreign policy positions for presidents Reagan, Carter and both Bushes. While both Congress and the president play a role in foreign policy, he said, there are places in the Constitution that forbid one to step on the other's toes.

RICHARD HAASS: In this case, essentially, the court ruled that Congress had gone too far - was overreaching. But nothing in this resolves the long-term tension between the two branches.

TOTENBERG: Haass, like many others, also noted what he called the curious composition of justices in majority and dissent today. Justice Kennedy's majority opinion on the Jerusalem law was joined by the court's liberals including the courts three Jewish justices and in part by the court's most conservative justice, Clarence Thomas. The three dissenters all served in Republican administrations and often spoke out loudly in favor of preeminent executive branch powers, especially in the area of foreign policy. But here they took the opposite view. Justice Antonin Scalia wrote the principle dissent, underlining his strong feelings with an oral dissent from the bench this morning. The tragedy of today's decision is not its result, he said. It's no great loss to the country. It instead comes down to the court's perception that the nation must have a single policy about the status of Jerusalem. Who says so, he asked as he looked out over the Supreme Court chamber. A single foreign policy may prove efficient, he said, but will systematically favor the president at the expense of Congress. Joining Scalia's dissent were Chief Justice John Roberts and Justice Samuel Alito. Nina Totenberg, NPR News, Washington.

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