In an important separation-of-powers decision, the Supreme Court on Monday ruled that Congress may not require the State Department to indicate in passports that Jerusalem is part of Israel.

The vote was 6 to 3, with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. dissenting.

Justice Anthony M. Kennedy, writing for five justices, said the question of the status of Jerusalem is “a delicate subject.” But he said the Constitution conferred exclusive authority on the president to recognize foreign governments.

In dissent, Chief Justice Roberts said the majority had taken a bold step. “Today’s decision is a first,” he wrote. “Never before has this court accepted a president’s direct defiance of an act of Congress in the field of foreign affairs.”

The case concerned a 2002 law that instructed the State Department to “record the place of birth as Israel” in the passports of American children born in Jerusalem if their parents asked. It was brought by the parents of Menachem B. Zivotofsky, who was born not long after Congress enacted the law. Under the State Department’s policies, their son’s passport says that he was born in Jerusalem; they sought to have it say Israel.

President George W. Bush signed the law, part of an appropriations bill, but said he would not follow the Jerusalem provision because it “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs.”

The Obama administration also objects to the provision and has refused to follow it. In its Supreme Court briefs, it told the justices that the status of Jerusalem should be resolved by negotiations between Arabs and Israelis.

The case, Zivotofsky v. Kerry, No. 13-628, thus presented an important test of the dueling roles of Congress and the president in the conduct of foreign affairs.

The case was before the justices once before, on a preliminary issue. In 2012, the Supreme Court ruled that the case did not involve a “political question” beyond the federal courts’ power to decide and returned the case to an appeals court.

In 2013, the appeals court ruled for the executive branch, saying the passport requirement impermissibly intruded on what it said was the president’s exclusive power to recognize foreign governments.
(NY Times)