An appeals court declares unconstitutional a passport law that designates ‘Israel’ as the birthplace of Jerusalem-born Americans.
By Alexei Koseff
Originally published in the Los Angeles Times – July 23, 2013
WASHINGTON — American citizens born in Jerusalem cannot claim Israel as their place of birth on their passports, a federal appeals court in Washington ruled Tuesday.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously declared unconstitutional a 2002 law that required the State Department to record Israel as the birthplace of Jerusalem-born citizens despite a long-standing position in the executive branch of strict neutrality toward sovereignty of the disputed city.
At stake in the case was a question of governmental authority over foreign policy: Does the president have the sole right to decide on what terms foreign nations are recognized?
Though the United States has recognized the sovereignty of Israel since it declared independence in 1948, no president has ever taken a position on Jerusalem. Israel considers the city its political and spiritual capital, while Palestinians seek to make East Jerusalem the capital of a future country.
The case was brought by the family of Menachem Binyamin Zivotofsky, now 10, born to American parents in Jerusalem. When his mother applied for a passport for him with the birthplace as “Jerusalem, Israel,” the U.S. Consulate listed only “Jerusalem.”
Zivotofsky was born weeks after Congress passed the passport provision in September 2002 as part of a foreign relations appropriations bill.
But when President George W. Bush signed the law, he issued an executive statement asserting that the policy on Jerusalem, if construed as mandatory rather than advisory, would “impermissibly interfere” with the president’s constitutional authority in matters of foreign affairs.
The secretary of State has never enforced the policy, arguing that it intrudes upon presidential powers.
The Court of Appeals agreed in its ruling, stating that the law was a political act that infringed upon the president’s exclusive recognition power in the Constitution.
The law “is not, as Zivotofsky asserts, legislation that simply — and neutrally — regulates the form and content of a passport,” Circuit Judge Karen Henderson wrote in her opinion. “Congress plainly intended to force the State Department to deviate from its decades-long position of neutrality” toward Jerusalem.
Several groups swiftly decried the decision.
The Anti-Defamation League, which combats anti-Semitism, wrote in a statement that it was “deeply disappointed” by the news.
“The court has effectively given a stamp of approval to the offensive State Department policy that singles out Israel for ‘special’ treatment,” it wrote.
In a statement, the Orthodox Union, an umbrella group of Orthodox Jewish congregations, called Jerusalem “the eternal and indivisible capital of the State of Israel” and said it would support an appeal of the ruling to the Supreme Court.
Congress has long demanded recognition of Israel’s sovereign control over Jerusalem. In 1995, it passed a law requiring that the United States move its embassy from Tel Aviv to Jerusalem, an act that has since been suspended on a semiannual basis by the president for national security reasons.
The Zivotofsky case has already visited the Supreme Court once, to determine whether it was a “nonjusticiable political question” rather than a legal one. In 2012, the high court held that the case could be tried.