The first time Menachem Zivotofsky’s case was before the Supreme Court, Justice Stephen Breyer laid out why courts should stay out of a dispute between Congress and the president over whether Americans born in Jerusalem may list Israel as their place of birth on passports.
The case, Breyer wrote in March 2012, poses a serious risk that intervention by the courts “will bring about embarrassment, show lack of respect for the other branches (of government), and potentially disrupt sound foreign policy decision-making.”
Breyer’s view got just one vote — his own — on the nine-member court. The justices ruled then that courts could referee the dispute between the legislative and executive branches.
Now the case, nearly as old as the 12-year-old Menachem, is back at the high court for argument Monday at a time of significant strain in Israeli-American relations.
Menachem and his U.S.-born parents want the court to uphold a law passed in 2002 that gives Jerusalem-born Americans the right to have Israel listed as their place of birth on passports.
Administrations of both parties have declined to enforce the law because they say it is contrary to long-held U.S. policy that refuses to recognize any nation’s sovereignty over Jerusalem until the Israelis and Palestinians resolve the city’s status through negotiations.
Mirroring the divide, many American Jewish organizations are supporting the family, while the American-Arab Anti-Discrimination Committee backs the Obama administration.
Israel proclaims a united Jerusalem as its eternal capital. The Palestinians say their independent state will have east Jerusalem as its capital.