Supreme Court rebukes Congress on Jerusalem passport law
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The Supreme Court ruled Monday that presidents have the power to choose not to recognize Jerusalem as the capital of Israel on passports, despite laws passed by Congress that seek to compel that recognition.

Justice Anthony Kennedy wrote in the 6-3 opinion that the president has the "exclusive power to grant formal recognition to a foreign sovereign." While the scope of that decision could extend outside this case, the decision responds directly to a suit by an American citizen born in Jerusalem who wanted to list his country of birth as Israel.

The executive branch views Jerusalem as an international city, a designation meant to stay neutral on a major issue in the Israeli-Palestinian dispute. So when Congress passed the Foreign Relations Authorization Act in 2002, which included a section that mandated recognition of Jerusalem as Israel's capital, then-President George W. Bush issued a signing statement that said his administation viewed the act as advisory because it violates the president's foreign relations authority.  


President Obama has continued that policy and has also issued a presidential determination lifting his requirement to seek an embassy in Jerusalem under the Jerusalem Embassy Act.

Kennedy noted that no U.S. president has acknowledged any country's right to Jerusalem and that the policy comes from an "understanding that passports will be construed as reflections of American policy."

He added that the president has significant, exclusive powers over recognizing countries, including nominating ambassadors, dispatching diplomatic missions and directly engaging in diplomacy with leaders, while Congress has no unilateral powers on that front. Allowing for a contradiction, he wrote, could impact America's powers of diplomacy.

"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," he wrote.

"Foreign countries need to know, before entering into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights."

Kennedy was joined by liberal-leaning Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, as well as conservative-leaning Justice Clarence Thomas. Chief Justice John Roberts and Justices Samuel Alito and Antonin Scalia, all conservative-leaning, dissented.

Scalia's dissent argued that the case wasn't about recognition, saying the simple designation on a passport does not mandate any specific international policy change, especially if the "Israel" designation on Jerusalem-born passports is only granted when people request it. He compared it to the fact that Americans born in Belfast can get that birthplace listed on a passport instead of the United Kingdom, and said that the designation doesn't "derecognize the United Kingdom's sovereignty over Northern Ireland."

The decision “confirms the long-established authority of the president over the conduct of diplomacy and foreign policy,” State Department spokesman Jeff Rathke told reporters after the decision was handed down.

“Since Israel’s founding, administrations of both parties have maintained a consistent policy of recognizing that no state has sovereignty over Jerusalem,” he added. “We remain committed to this longstanding policy.”

—This story was last updated art 1:02 p.m.

Julian Hattem contributed.