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Supreme Court to hear dispute over passport birthplace listing

Parents want Israel, US policy says Jerusalem

By Mark Sherman
Associated Press / May 3, 2011

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WASHINGTON — The Supreme Court agreed yesterday to hear an appeal from an American boy born in Jerusalem over whether he can have Israel listed as his birthplace on his passport even though US policy does not recognize the once-divided city as belonging to Israel.

The court is stepping into a case that mixes the thorny politics of the Middle East and a fight between Congress and the president over primacy in foreign policy.

The justices will review an appeals court ruling against Jerusalem-born Menachem Zivotofsky and his parents, US-born Jews who moved to Israel in 2000. They filed a lawsuit after State Department officials refused to list Israel as Menachem’s birthplace.

The boy was born in a Jerusalem hospital in October 2002, shortly after Congress directed, in a federal law, that Americans born in Jerusalem may have Israel listed as their place of birth. But the Bush administration said Congress may not tell the president what to do regarding this aspect of foreign relations. The Obama administration agrees with its predecessor.

When the high court hears arguments in the fall, the issue will be whether the congressional directive impermissibly interferes with the president’s power.

The State Department’s longstanding policy has been to refrain from expressing a view about Jerusalem’s status, despite the congressional action as well as Israel’s assertion of sovereignty over all of Jerusalem and declaration of the city as its capital. Israel’s victory in the 1967 Six-Day War brought the entire city under Israeli control.

The United States, which keeps its embassy in Tel Aviv, and most nations do not recognize Jerusalem as the capital and say the city’s status should be resolved in negotiations between Israel and the Palestinians.

Ari Zivotofsky, the boy’s father, said in an interview in Israel that he considers Jerusalem part of Israel. “As a US citizen and a resident of Israel, I find it a little bit strange that the US doesn’t recognize Israeli sovereignty over Jerusalem, and certainly the western half, where the hospital is located,’’ he said.

“Jerusalem is subject to dispute as to its future status. Its current status seems to me pretty clear. When the US government mails its consular officials mail, they mail it to Jerusalem, Israel,’’ he said.

Had Menachem been born in Tel Aviv, the State Department would have issued a passport listing his place of birth as Israel. The regular practice for recording the birth of a US citizen abroad is to list the country where it occurred.

But the department’s guide tells consular officials, “For a person born in Jerusalem, write Jerusalem as the place of birth in the passport.’’

Israel’s supporters in Congress have long objected to the official position on Jerusalem. In 1995, Congress essentially adopted the Israeli position, saying the US should recognize a united Jerusalem as Israel’s capital. In 2002, lawmakers passed new provisions urging the president to take steps to move the embassy to Jerusalem and allowing Americans born in Jerusalem to have their place of birth listed as Israel.

The measures were part of a large foreign affairs bill that President George W. Bush signed into law. But as he did so, Bush issued a signing statement in which he said that “U.S. policy regarding Jerusalem has not changed.’’ The president said Congress could not tell him what to do in this matter of foreign affairs.

After the Zivotofskys took their complaint to federal court in 2003, a judge refused to get in the middle of the dispute over Jerusalem’s status. It was a political question, the judge said, for Congress and the president to work out without judicial intervention.

A three-judge panel of the US Court of Appeals for the District of Columbia Circuit agreed that it had no authority to consider the claim.

In other action, the Supreme Court ruled that Wyoming farmers are not taking too much water from a river system they share with neighboring Montana.

The justices turned away Montana’s complaint that Wyoming was violating a 1950 agreement by depleting water from the Tongue and Powder rivers. Montana had claimed in 2007 that more efficient irrigation techniques in Wyoming prevented runoff from rejoining the rivers and flowing downstream.

The ruling is not expected to resolve some of the nonagriculture aspects of the case, including a sharp increase in the amount of water used during oil and gas exploration in Wyoming. As a result, the broader question of Wyoming’s overall water use remains in dispute.

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