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How wrangle over Jerusalem is at the core of a US Supreme Court showdown

Did Congress overstep its authority when it instructed US officials to list 'Israel' as the place of birth for Americans born in Jerusalem? Supreme Court justices heard arguments Monday.

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Ari Zivotofsky (r.) stands with his nine-year-old son, Menachem, outside the Supreme Court in Washington, Monday. The Supreme Court seems unlikely to rule for a 9-year-old boy who was born in Jerusalem and wants his US passport to list his place of birth as Israel.

Evan Vucci/AP

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The status of Jerusalem, bitterly contested for ages by rivals in the Middle East, has for years also divided the legislative and executive branches of the US government.

Now a law passed by Congress in 2002 instructing US officials to list “Israel” as the place of birth for Americans born in Jerusalem is at the core of a potentially historic showdown at the US Supreme Court pitting legislative against executive power.

On Monday the justices heard arguments in the case, Zivotofsky v. Clinton, examining whether Congress overstepped its authority when it passed the law.

Based on questions asked at oral argument, the justices appear inclined to leave the intricacies of foreign policy to the State Department.

The case arises in the relatively limited context of how best to record the birth of a child to American citizens when the birth takes place in Jerusalem. But the underlying issues will likely force the justices to confront irreconcilable claims to power from co-equal branches of government.

On one side is a State Department policy that requires that the US passport of a child born in Jerusalem record the place of birth as merely Jerusalem.

On the other side is the federal law that requires US officials to record Israel as the place of birth, whenever requested by US-citizen parents.

Roughly a month after the law was passed, Ari and Naomi Zivotofsky, both US citizens living in Jerusalem, were blessed with the birth of a son, Menachem.

The boy’s mother applied for a US passport, but was disappointed to learn it would not record the place of her son’s birth as Israel, only Jerusalem. State Department officials cited the Jerusalem policy.

The Zivotofskys sued, asking a federal judge to force the State Department to comply with the Congressional statute. The judge declined, ruling that the case raised a political question that was best left to the political branches of government to resolve. An appeals court agreed.

In taking up the case, the Supreme Court asked both parties to address the political question issue as well as whether the 2002 congressional statute violated the president’s authority to recognize foreign governments.

Both sides in the debate cite different sources of authority.

Washington lawyer Nathan Lewin, representing the Zivotofskys, told the justices on Monday Congress was acting under its power to regulate passports.

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