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Supreme Court backs president's foreign policy powers in passport dispute

In this Nov. 3, 2014 file photo, Menachem Zivotofsky and his father Ari Zivotofsky speaks to media outside the Supreme Court in Washington. The Supreme Court has struck down a disputed law that would have allowed Americans born in Jerusalem to list their birthplace as Israel on their U.S. passports.
In this Nov. 3, 2014 file photo, Menachem Zivotofsky and his father Ari Zivotofsky speaks to media outside the Supreme Court in Washington. The Supreme Court has struck down a disputed law that would have allowed Americans born in Jerusalem to list their birthplace as Israel on their U.S. passports. (Carolyn Kaster, Associated Press)

— In striking down a law that allowed Americans born in Jerusalem to have their birthplace recorded as "Israel," the Supreme Court on Monday bolstered the constitutional role of the president in setting the nation's foreign policy.

In a 6-3 ruling, the justices declared the executive office, not Congress, has the "exclusive power" to recognize foreign governments and negotiate sensitive disputes.

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They agreed with Presidents Barack Obama and George W. Bush that the 2002 law infringed the power of the president and the secretary of state to resolve the long-running dispute over the status of the ancient city.

The ruling is a defeat for the parents of Menachem Zivotofsky, who was born after the law took effect. They had asked that his passport list his birthplace as "Jerusalem, Israel." The State Department, which says the final status of Jerusalem must be negotiated by Israelis and Palestinians, denied the request, and the family sued.

Kenneth Lasson, a professor at the University of Baltimore School of Law, has two grandchildren who were born in Jerusalem. Had the court upheld the law, he said, he'd have wanted them to get new passports with the word "Israel" included.

"They'd go to get them renewed almost immediately if I had anything to say about it," Lasson said.

He recalled visiting a consulate with his eldest grandson and asking a clerk what would happen if he made the change himself. He said she sternly warned him against it.

"I was somewhat taken aback," he said. "But I didn't want to see a headline that said, 'Law professor violates State Department protocol.'"

Beyond the narrow dispute at issue, the court's opinion was a strong endorsement of presidential power at a time when Republicans are increasingly criticizing Obama for bypassing Congress and exceeding his authority — including on matters of foreign relations, such as the nuclear deal the United States is negotiating with Iran.

The United States has not had formal diplomatic relations with Iran since 1980, but Obama hopes to complete a deal under which the Islamic Republic agrees to limit its nuclear program in exchange for an easing of U.S. and international sanctions against Tehran.

In March, while the passport case was pending, 47 Senate Republicans sent an open letter to Iran's leaders stressing the role of Congress in approving international agreements and noting that Obama would be leaving office in two years.

Monday's ruling will have no direct impact on the talks. But Associate Justice Anthony M. Kennedy, writing for the majority, emphasized the prime role of the president in setting and executing foreign policy.

"The President has the sole power to negotiate treaties, and the Senate may not conclude or ratify a treaty without presidential action," he wrote.

"Congress, by contrast, has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation. … 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."

The president's power is not "unbounded," Kennedy wrote, and Congress need not fund or support the president's initiatives. But when it comes to recognizing foreign governments, Kennedy wrote that the nation must speak with one voice — and "that voice must be the president's."

Chief Justice John G. Roberts, in dissent, called the decision the first of its kind.

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"Never before has this court accepted a president's defiance of an act of Congress in the field of foreign affairs," he wrote. He would have upheld the law, and Justice Samuel Alito agreed.

Justice Antonin Scalia read part of his separate dissent in court.

"The tragedy of today's decision is not its result," he said, "but the principle that produces this result."

He said the Constitution divided power between the president and Congress, both in "foreign policy and … for just about everything else." But the court's opinion, he said, would "systematically favor the president at the expense of Congress."

Kennedy wrote for Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Justice Clarence Thomas concurred with the outcome but did not join Kennedy's opinion.

The Anti-Defamation League said it was disappointed with the ruling.

"It is sad and unfortunate that Israel — as a sovereign state — is the only country in the world whose capital comes under such scrutiny," Abraham H. Foxman, the ADL's national director, said in a statement.

Lasson said the issue of a single word on a passport might seem insignificant, but to Jews the symbolism is powerful.

"It's a slap at Israel," he said. "It's the only country in the world whose recognized capital is not recognized by the United States."

Arthur C. Abramson, the director of the Baltimore Jewish Council, said Jerusalem's status as Israel's capital is one of the few issues that unite American Jews across the political spectrum.

"You would think there is no problem," he said.

But the American-Arab Anti-Discrimination Committee wrote to the court that declaring Jerusalem a part of Israel would be unfair to those Jeruslam-born Americans who would prefer to list Palestine as their place of birth.

Zahi Khamis, instructor in Arabic at Goucher College, said such a declaration would undermine the U.S. role in the Israel-Palestine peace process.

"Jerusalem is an occupied city and is not and should not be recognized as a proper part of Israel," he wrote in an email.

The Zivotofsky case, which posed several difficult questions — including whether the president could sign a measure into law and then refuse to abide by it — took an unusually long time for the court to resolve.

When President Bush signed the Foreign Relations Authorization Act in 2002, he said in a signing statement that he would not follow the provision involving passports for U.S. citizens born in Jerusalem.

Obama continued that policy.

When the court first asked to hear the case three years ago, the justices were divided and unable to issue a final ruling.

The case was sent back to a U.S. appeals court in Washington, which affirmed its decision in favor of the State Department.

Because a law had been struck down as unconstitutional, the court voted to take up the case again. The justices heard arguments in early November.

David G. Savage reported from the Tribune Washington Bureau.

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