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Tuesday, December 6, 2016

By David G. Savage, Tribune Washington Bureau

WASHINGTON — The Supreme Court justices sounded sharply and closely split Monday by a case challenging the president’s power to refuse to allow the passports of American children born in Jerusalem to be stamped with “Israel.”

The court’s liberal and Jewish justices strongly defended the State Department’s policy — under Presidents Barack Obama and George W. Bush — against listing Israel or any other nation on the passports of children born in Jerusalem. Both Israelis and Palestinians claim the ancient city as their capital.

Justice Elena Kagan called the move to add Israel to these passports “a very selective ‘vanity plate’ law.” She said it was “shocking” that Congress would seek to meddle in a sensitive foreign policy “tinderbox.”

She was referring to a 2002 authorization bill passed by Congress that included a provision giving U.S. parents a right to have Israel cited on the passports of children born in Jerusalem.

Though Bush signed the broader law, both the Bush and Obama administrations have refused to abide by its passport provision. In court, they argued it is unconstitutional because it conflicts with the president’s “exclusive power” over foreign affairs.

Justice Stephen G. Breyer agreed the courts should defer to the State Department. “I’m a judge. I’m not a foreign affairs expect,” he told Alyza Lewin, the lawyer for the Jewish parents who brought the challenge. “What do we as judges do?”

Before she could answer, Justice Antonin Scalia interjected with his answer. Congress has the power to makes the laws, he said, including by declaring war on another country. And if so, he said, it can certainly decide what goes on a passport.

“We do not hold an act of Congress unconstitutional,” Scalia said, just “so we can make nice with the Palestinians.”

Chief Justice John G. Roberts and Justices Samuel A. Alito said they agreed with Scalia and were not troubled by Congress setting rules for passports.

Once again, the outcome probably depends on Justice Anthony M. Kennedy, and he said he was looking for a compromise position. The State Department could solve the problem, he said, if it issued a “disclaimer.” Regardless of what the passports say, the United States could state it does not recognize Israel or any other nation as having sovereign control over Jerusalem, he said.

Since 1948, the U.S. government has refused to take an official position on the status of Jerusalem. The high court now has several months to decide what U.S. passports will say about American children who are born there.

AFP Photo/Karen Bleier

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