ROBERT SIEGEL, HOST:
The United States Supreme Court heard arguments today in a case testing whether American citizens born in Jerusalem can list Israel as their place of birth on their passports. That might sound like an academic question, but the status of Jerusalem is one of the issues at the heart of the Arab-Israeli conflict. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Ever since the founding of Israel, 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's supporters in Congress, however, have tried to force a different policy, seeking to move the U.S. Embassy from Tel Aviv to Jerusalem and mandating that the State Department allow U.S. citizens born in Jerusalem to list Israel as their place of birth.
Presidents Bush and Obama, however, refused to comply with the passport mandate, contending it infringes on the president's foreign policy powers.
At the center of the case is a 12-year-old boy named Menachem Zivotofsky, born in Jerusalem to American parents who emigrated to Israel. He and his parents maintain dual citizenship. And on the steps of the Supreme Court today, young Zivotofsky explained why he doesn't want his passport to say he was born in Jerusalem.
MENACHEM ZIVOTOFSKY: I'm an Israeli. And I want people to know that I'm glad that I'm an Israeli.
TOTENBERG: Inside the Supreme Court chamber, it was a weird day from the get-go. The hands on the clock were so out of whack that at one point, they were literally spinning.
It was an omen of an even stranger argument. The court's most conservative members, all of whom made their professional bones in Republican administrations aggressively advocating for executive power, today seemed instead quite hostile to executive powers that date back to George Washington's time. And the court's three Jewish justices seemed pretty unsympathetic to the Jewish plaintiffs.
Representing the Zivotofskys, lawyer Alyza Lewin argued that identifying an American citizen born in Jerusalem as born in Israel does not mean the U.S. is recognizing Jerusalem as part of Israel. It simply recognizes a choice of identity made by an individual.
Justice Kagan - that choice is not available to anyone else in the world - not to citizens of Northern Ireland, who want to list their place of birth as Ireland - not even to Palestinians born after 1948 in Jerusalem, who want to list Palestine as their place of birth. This, she opined, is a rather selective vanity plate law.
Justice Kennedy suggested repeatedly that the way to avoid the recognition problem would be for the State Department to put a disclaimer on the passport saying the U.S. does not recognizing Jerusalem as part of Israel. But in response to a question, the Zivotofsky's lawyer acknowledged that such a disclaimer could be voided by Congress.
The most hostile questioning of the day was aimed at the government's advocate, Solicitor General Donald Verrilli. Chief Justice Roberts - if this statute was such a big deal, why did President Bush sign it? Verrilli noted that President Bush signed the giant foreign aid measure to which the passport language was attached but issued a statement saying he would not enforce that provision. Even with that caveat, observed Verrilli, the signing provoked massive demonstrations in Jerusalem, some turning violent. And the Palestinian Parliament voted for the first time to declare Jerusalem the capital of the Palestinian state.
Chief Justice Roberts - that's partly because the executive branch made such a big deal out of it, litigating the question instead of just moving on.
It's important for this court to understand, insisted the solicitor general, that a decision upholding the passport mandate would pose a serious risk to the nation's credibility.
Justice Alito - why would that be so? No matter how this court decides, everyone will know what the position of the president is. Answer - it won't be just one branch of the United States government saying that Jerusalem should be part of Israel. It will be two branches. And because that is contrary to the long-held position of the United States, the nation's credibility as an honest broker will be called into question.
Justice Kagan, caustically - this seems a particularly unfortunate week to be making this kind of oh-it's-no-big-deal argument. History suggests that everything is a big deal with respect to the status of Jerusalem. Right now, the city is a tinderbox because of access to a particular holy site there. And so everything matters, doesn't it? Nina Totenberg, NPR News, Washington.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.