US Supreme Court: listing of Israel on birth certificate not a “political” question

On March 26, the US Supreme Court ruled 8-1 in MBZ v. Clinton that the ability of a US national born in Jerusalem to list Israel as place of birth on a passport is not a political question, but remanded the case for a ruling specifically on the issue. The US State Department argued that this question was political because it informs the government's foreign policy toward recognition of Israel as sovereign over Jerusalem. Chief Justice John Roberts, writing for the majority, disagreed, due to the suit being based on a statutory enactment by Congress:

The existence of a statutory right, however, is certainly relevant to the Judiciary's power to decide Zivotofsky's claim. The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts' own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky's interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise.

Justice Stephen Breyer dissented, arguing that the political implications of recognizing Israel's claim to Jerusalem have far-reaching impact for the US government, and is a matter of foreign policy over which the judiciary has no oversight. US citizen Menachem Zivotofsky was born in Jerusalem in 2002. His parents asked the State Department to record his place of birth as Jerusalem, Israel, but were told it could only be listed as Jerusalem because the US does not recognize any country as having sovereignty over Jerusalem. His parents filed suit in 2003 based on the Foreign Relations Authorization Act for Fiscal Year 2003, which they said allowed the listing of Israel as birthplace for those born in Jerusalem. The US Court of Appeals for the District of Columbia Circuit dismissed the suit as a political question.

From Jurist, March 27. Used with permission.

See our last posts on Israel/Palestine and the struggle for Jerusalem.