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High Court Sides With White House On Jerusalem Passport Dispute


One branch of the U.S. government yesterday settled a dispute between the other two. The dispute was over a 2002 federal law passed by Congress. It required the State Department to indicate on passports that the city of Jerusalem is part of Israel. The law was never enforced because of objections from the White House under two presidents. Yesterday, the Supreme Court decided for the executive branch. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Presidents Bush and Obama both claimed that the law unconstitutionally infringed on their foreign-policy powers. They said long-standing U.S. policy has been that Jerusalem will not be considered part of any country until a Middle East peace deal is negotiated to decide that question. So when Congress passed a law 13 years ago that required the State Department to allow U.S. citizens born in Jerusalem to list Israel as their place of birth on their U.S. passports, President Bush and then President Obama said the law usurped their constitutional power to determine which countries to recognize. John Bellinger, who served as legal advisor for the National Security Council and the State Department from 2001 to 2008, says that in the Internet age, even a seemingly insignificant thing like this passport law can have big consequences.

JOHN BELLINGER: When this provision was originally passed, there were protests in the Middle East that Congress was trying to require the United States to recognize Jerusalem as part of Israel.

TOTENBERG: The case went to the Supreme Court not once but twice. The first time in 2012, the justices rejected the notion that the conflict is a political question that the court should stay out of. The second time around, it took seven months, five opinions, and 89 pages to explain the outcome. For the first time in the nation's history, the court struck down a law passed by Congress in the field of foreign affairs. Writing for the majority, Justice Anthony Kennedy declared that the president has the exclusive power to recognize foreign countries. The nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not, he said. On this topic, the nation must speak with one voice and that voice must be the president's.

ELIOT ENGEL: I think this is a very, very wrong decision.

TOTENBERG: That's Eliot Engel, ranking Democrat on the House Foreign Affairs Committee and a major sponsor of the Jerusalem law, but he knows when he's licked.

ENGEL: I think the decision pretty much, you know, ends this dispute.

TOTENBERG: And yet, as Richard Haass, president of the Council on Foreign Relations, puts it...

RICHARD HAASS: Nothing in this resolves the long-term tension between the two branches.

TOTENBERG: Not so, says Harvard Law Professor Jack Goldsmith, who served as a top legal adviser for President George W. Bush.

JACK GOLDSMITH: This is going to be a very important precedent for executive branch lawyers in the future. It's a big precedent for presidential power generally in the context of foreign relations.

TOTENBERG: And in the meantime, U.S. citizens born in Jerusalem will have to content themselves with naming the city of their birth on their U.S. passports. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.