By Tony Mauro, From The National Law Journal

Justices, divided, uphold block on identifying Israel as birthplace for Americans born in Jerusalem.

A sharply divided U.S. Supreme Court ruled on Monday that the president has “exclusive power” to recognize foreign nations, putting an end to a long-running dispute over an act of Congress that allowed U.S. citizens born in Jerusalem to request passports listing Israel as their birthplace.

The decision upholds a ruling of the U.S. Court of Appeals for the D.C. Circuit striking down the law as unconstitutional. The law was passed in 2002, and presidents George W. Bush and Barack Obama both refused to enforce it, objecting that it intrudes into an area of exclusive presidential power. Ever since the U.S recognized Israel in 1948, presidents have consistently held the position that no state has sovereignty over Jerusalem.

“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,” Justice Anthony Kennedy wrote for a 6-3 majority.

Chief Justice John Roberts Jr. and justices Antonin Scalia and Samuel Alito Jr. dissented in full. Justice Clarence Thomas concurred with the majority opinion as it relates to passports, but dissented from other portions.

“Today’s decision is a first,” Roberts wrote. “Never before has this court accepted a president’s direct defiance of an act of Congress in the field of foreign affairs.”

Scalia, who took the rare step of reading a summary of his dissent from the bench, wrote that the majority expanded the powers of the president in ways “more reminiscent of George III than George Washington.” He added that the law at issue has “nothing to do with recognition.”

Most high court dissents end with the sentence “I respectfully dissent,” but Scalia’s stated only, “I dissent.”

The case, titled Zivotofsky v. Kerry, was brought on behalf of Menachem Zivotofsky, whose parents sought, but failed, to have the Israel designation placed on his U.S. passport. The Zivotofskys filed suit, triggering a decade of litigation. Lower courts ruled that the suit raised a political question beyond the jurisdiction of courts. In 2012 the Supreme Court reversed those rulings, deciding that the passport issue was justiciable.

On remand, the U.S. Court of Appeals for the D.C. Circuit ruled on the merits last year that the law interfered with the president’s power to recognize foreign sovereigns.

During oral arguments last November, Solicitor General Donald Verrilli Jr. warned the court not to interfere with a “critically important” foreign policy position of the government. But Alyza Lewin of Lewin & Lewin, who represented Zivotofsky, argued that the law passed by Congress was “a legitimate congressional exercise” of its foreign commerce power that “does not amount to formal recognition” of Jerusalem as part of Israel.

IMAGE:

Menachem Zivotofsky, center, stands with his father Ari Zivotofsky, right, and their attorney Alyza Lewin, outside the Supreme Court in Washington, Monday, Nov. 3, 2014. Photo: Carolyn Kaster/AP

For more on this story go to: http://www.nationallawjournal.com/id=1202728640849/High-Court-Sides-with-President-in-Jerusalem-Passport-Dispute#ixzz3cZgS3Quv