Born in Jerusalem, Israel?

Legal Battle Over Passports for Americans Born in Jerusalem

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By Nathan Lewin

Published October 08, 2012, issue of October 12, 2012.
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On the floor of the Democratic National Convention, former Ohio governor Ted Strickland, chair of the party’s platform committee, proposed the tardy insertion of language affirming that Jerusalem is the capital of Israel, with a declaration that “President Obama recognizes Jerusalem as the capital of Israel.” The chair of the Democratic National Committee, Representative Debbie Wasserman Schultz, then declared that “the personal views expressed by the president” are that “Jerusalem is and will remain the capital of Israel.” And former congressman Robert Wexler, who delivered a five-minute address at the convention to reassure American Jews that the Obama policy vis-à-vis Israel was “unflinching commitment,” announced that the president had “directly intervened” to have the Jerusalem language added to the platform.

Do the president’s deeds match his words? If he personally believes that Jerusalem is the capital of Israel, why is he contesting in court a modest recognition in American passports — validated in a law enacted by Congress — simply stating that Jerusalem is in Israel?

For the past nine years, an American-born couple now residing in Israel has been battling in the federal courts on behalf of their Jerusalem-born son to enforce a law that Congress passed overwhelmingly in 2002. The law directs the State Department to permit American citizens born in Jerusalem to identify themselves on their American passports as born in “Israel.”

The State Department’s rules regarding the “place of birth” entry on a passport require designation of the country of birth abroad, not the city where the passport-holder is born. Jerusalem and Israel are subject to unique rules. The State Department’s Foreign Affairs Manual instructs consular officers that they may not write “Israel” as the place of birth of an American citizen born in Jerusalem.

But out of consideration for the feelings of adversaries of Israel who were born within its 1948 borders, the State Department’s regulations permit anyone who is offended by being identified as born in Israel to list instead his or her city of birth. This web of regulations means that Palestinians born in Tel Aviv who do not want “Israel” on their passports may remove mention of that country. Jews born in Jerusalem (even at Shaare Zedek hospital, in western Jerusalem) may not, however, identify with the country they respect and admire.

The litigation reached the Supreme Court this past year in a case called Zivotofsky v. Clinton. The Department of Justice urged the Supreme Court to throw the case out of court because deciding whether Congress had the constitutional authority to require the State Department to permit such identification on a passport was a “political question.” The Supreme Court rejected that argument in March by an 8-to-1 vote, with both of President Obama’s Supreme Court nominees voting with the majority.

The lawsuit is now back in the United States Court of Appeals. That court will decide whether Congress’s directive should be enforced. The Justice Department, on behalf of the secretary of state, contends that requiring the State Department to allow Jerusalem-born citizens to identify themselves as born in “Israel” unconstitutionally interferes with the president’s authority “to recognize foreign sovereigns.”

Whether or not the president has that exclusive authority is debated in the legal briefs filed in court. But even if the president has the exclusive authority to grant official recognition to foreign governments, it is hard to imagine how permitting Jerusalem-born Americans to carry passports in which the “place of birth” is identical to that of citizens born anywhere else in Israel could conflict with any “recognition” authority. The State Department disclosed in the Zivotofsky litigation that there are about 50,000 American passports outstanding that record “Jerusalem” as the place of birth, and 100,000 that say “Israel.” How is American foreign policy harmed — or the purported “recognition power” diminished — if even 150,000 passports will now say “Israel”?

If Obama truly believes that Jerusalem is Israel’s capital, he should instruct his Department of Justice to halt its opposition to enforcement of a duly enacted law that does far less than recognize Jerusalem as Israel’s capital. Having resoundingly lost one battle in the Supreme Court to prevent American citizens from exercising the right explicitly conferred by Congress, the president need not risk a second loss in the lower federal courts over whether America may acknowledge that Jerusalem is in Israel.

Nathan Lewin is a Washington lawyer who represents Menachem Binyamin Zivotofsky.


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