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U.S. Supreme Court

Presidential Power at Issue in Supreme Court Case on Passport Birthplace Listing

Posted May 3, 2011 5:30 AM CDT
By Debra Cassens Weiss

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In a case that involves the powers of all three branches of government, the U.S. Supreme Court has accepted an appeal that seeks to enforce a federal law allowing an American born in Jerusalem to list his birthplace as Israel.

The Supreme Court granted cert Monday, according to SCOTUSblog, the Associated Press and the Courthouse News Service. The suit was filed on behalf of Menachem Zivotofsky, who was born in Jerusalem in October 2002.

A federal law says Americans born in Jerusalem can list Israel as their birthplace, but the president argues that only he has the power to set passport policy as part of his foreign affairs duties. The government has argued that the law could interfere with Middle East peace negotiations, SCOTUSblog explains. President George W. Bush had issued a signing statement objecting to the constitutionality of the passport provisions when he signed the Foreign Relations Authorization Act in 2002, according to the cert petition (PDF posted by SCOTUSblog).

A federal judge had dismissed the Zivotofsky suit, saying the political question could not be decided by the courts, and the U.S. Court of Appeals for the D.C. Circuit affirmed. The U.S. Supreme Court will consider the political question issue, and told lawyers to address whether the federal law unconstitutionally “infringes the president’s power to recognize foreign sovereigns,” SCOTUSblog says.

According to AP, “the court is stepping into a case that mixes the thorny politics of the Middle East and a fight between Congress and the president over primacy in foreign policy.”

The case is MBZ v. Clinton.

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