Richard Wolf

USA TODAY

WASHINGTON — Menachem Binyamin Zivotofsky just turned 12.

For 11 of those years, he has been the protagonist in a legal battle that the U.S. government warns could "provoke uproar throughout the Arab and Muslim world." Now the Supreme Court is weighing in — for the second time.

Young Menachem's offense? He was born in Jerusalem. His parents, Ari and Naomi, want his birthplace listed as "Israel" on his passport. But ever since Israel was recognized in 1948, the official U.S. policy has been that Jerusalem is a city unto itself.

"For a person born in Jerusalem, write JERUSALEM as the place of birth in the passport," the State Department's Foreign Affairs Manual clearly states. "Do not write Israel, Jordan or West Bank for a person born within the current municipal borders of Jerusalem."

Out of such mundane protocols, international crises are born.

As if war and peace wasn't enough to put on the justices' plate, a tug of war between the White House and Congress over Menachem's passport raises a conundrum that has never been resolved in the nation's 238-year history: Which branch of government gets to recognize foreign countries?

Congress passed and President George W. Bush signed a foreign relations law in 2002 stating that for Americans born in Jerusalem, "the Secretary shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel." But Bush included a "signing statement" opposing that provision as unconstitutional, and the Obama administration agrees.

Now, as was the case earlier this year in a dispute over appointments President Obama made without Senate consent, the Supreme Court must pick winners and losers. One of them will be a boy on the brink of his bar mitzvah.

All of which might give the justices "buyer's remorse," says former U.S. solicitor general Paul Clement, who this month argued his 75th case before the court. When the passport dispute came to them in 2011, they ruled 8-1 that it was not a political question best left to the other two branches to fight out. As a result, it's back.

"What a great case not to have to decide," Clement says.

PASSPORT v. PEACE PROCESS

Ari and Naomi Zivotofsky's odyssey began Dec. 24, 2002, when Naomi applied for a passport and "consular report of birth abroad" for their 2-month-old son. "Jerusalem, Israel," was swiftly rejected. Their fallback, "Israel," didn't fare any better.

The Zivotofskys refused to take "no country" for an answer. Their case has been up and down the federal court system since their son was 11 months old. First, the courts ruled that Menachem had suffered no injury and therefore lacked standing to challenge the policy. Then they ruled that the courts lacked standing — that it was a political issue, not a justiciable one. Only last year did the U.S. Court of Appeals for the D.C. Circuit rule against them on the merits of the case.

"The status of the city of Jerusalem is one of the most contentious issues in recorded history," the court said. "For more than two millennia, the city has been won and lost by a host of sovereigns. The controversy continues today as the state of Israel and the Palestinian people both claim sovereignty over the city."

That's the point, the Justice Department argued in its brief to the Supreme Court. Jerusalem's status "is one of the most sensitive flash points in the Arab-Israeli conflict." Changing the boy's passport "would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process."

It also could lead to a long line of other Jerusalem natives seeking to change their passports; some 50,000 U.S. citizens were born there. Even so, the Zivotofskys' brief argues, "America's foreign policy will not be impaired."

Their many supporters, including the American Jewish Committee, Anti-Defamation League and American Israel Public Affairs Committee, say Jerusalem is the capital of Israel. They say Congress, not the president, has the upper hand when it comes to immigration, naturalization and passport policies. They say one word on Menachem's passport won't alter the direction of U.S. foreign policy.

"There is a dispute over the exact borders of the city and whether it will someday also be the capital of a Palestinian state, but there is no sensible dispute over its standing as Israel's capital and the seat of its government," says Elliott Abrams, a Middle East expert who supervised U.S. policy there during the Bush administration. "Making this change on passports would reflect reality and would do absolutely nothing to harm the so-called 'peace process.' "

The administration's supporters say Jerusalem is the most delicate issue in the world's most intractable dispute. They say presidents, not Congress, have the power to recognize sovereign nations. They say changing Menachem's passport — and the media attention it would generate — could increase tensions in the Middle East.

"It really undermines the capacity of any president to conduct foreign policy," says Aaron David Miller, a former senior adviser for Arab-Israeli negotiations at the State Department. "And it will feed an already unhappy chorus of people who believe that the U.S. is acquiescing to Israel's control of Jerusalem anyway."

On this issue, Arab groups are solidly on the administration's side. "Israel is a completely Jewish state, so identifying Jerusalem as being under Israeli sovereignty on a government document is discriminatory to Christian and Muslim Americans," the American-Arab Anti-Discrimination Committee argued in its brief to the court.

In the middle are those who understand the delicacy of the issue but also recognize that Jerusalem — particularly West Jerusalem, where Menachem was born — is not going to be relinquished.

"This issue has been around for a long time, and traditionally the U.S. position has been that because anything connected to Jerusalem is a lightning rod, it has preferred to practice an approach of avoidance," says Dennis Ross, the point man on Middle East peace talks for both Democratic and Republican administrations in the 1990s. "Truth be told, it should not be an issue."

WHAT DID THE FOUNDERS SAY?

While current events in the Middle East drive the policy arguments, the legal argument goes back about 225 years.

It was in 1789 that the first Congress established the Department of Foreign Affairs to negotiate with ambassadors and ministers from foreign lands, the Justice Department noted. Its brief includes documents written by a long line of presidents: Washington, Adams, Jefferson, Madison, Monroe, Jackson, Taylor, Lincoln, McKinley and Wilson, to name just a few.

"More than 200 years of historical practice confirm that the recognition power belongs exclusively to the executive," Solicitor General Donald Verrilli argued in the brief. "The executive has unilaterally made hundreds of recognition decisions concerning states, governments and territorial shifts."

John Bellinger, who was legal adviser at the National Security Council when the dispute began more than a decade ago, says Congress clearly lacks that authority.

"Although unlikely to happen, Congress could not direct the president to recognize Crimea as part of Russia, or to require that persons henceforth born in Crimea shall be listed as being born in Crimea, Russia," Bellinger says.

But the Zivotofskys note that the Supreme Court in 1952 limited President Harry Truman's power to seize control of striking steel mills, with Justice Robert Jackson relegating a president's power to its lowest ebb when going against Congress.

Senate Majority Leader Harry Reid put his institution before his political party last summer when he urged the Senate to vigorously defend the 2002 law at the court.

"The law does not alter the position of the United States on the status of Jerusalem," Reid said. "Rather, it continues Congress's century-and-a-half-old exercise of legislative authority over the contents and design of identification documents, such as passports, held by U.S. citizens."



