What a week it was for Jerusalem late last month. The president of the United States arrived, transformed the King David Hotel into his (and his entourage’s) home away from home, and then began a series of meetings and visits – to the official residences of President Peres and Prime Minister Netanyahu, to the Israel Museum and the Shrine of the Book, to the Jerusalem Convention Center, to Mount Herzl, Yad Vashem, and to the grave of former prime minister Yitzhak Rabin. All these sites are in Jerusalem. But are they in Israel?
My father, Nathan Lewin, and I were in court the day before President Obama traveled to the Middle East on a case that concerns this very issue. It involves the right of a Jerusalem-born American citizen to self-identify as born in “Israel” on his or her U.S. passport and birth certificate.
The general rule for American citizens born abroad is that their U.S. passports list their country of birth as their place of birth. American citizens born in Paris have “France” listed as their place of birth on their passports. Citizens born in Rome list “Italy.” Those born in Tel Aviv or Haifa list “Israel.” But because the U.S. does not recognize Jerusalem as being in Israel, the State Department lists the city – “Jerusalem” – instead of the country as the place of birth for Jerusalem-born American citizens.
In 2002, Congress passed a law that directed the secretary of state to record the birthplace of American citizens born in Jerusalem as “Israel” on the U.S. passports and birth certificates of those who so request. The executive branch under the Bush and Obama administrations has refused to enforce the law, claiming that to do so would infringe on the president’s authority to “recognize foreign sovereigns.”
Menachem Binyamin Zivotofsky was born in October 2002 in Shaare Zedek hospital (a few weeks after the law was enacted). His parents invoked the new statute and asked that his place of birth be listed as “Israel.” The State Department refused because it claimed that Congress’s law was unconstitutional. Zivotofsky then became our firm’s youngest pro bono client when he (and his parents) sued in September 2003 to compel the State Department to comply with the law.
On March 19 we were before the U.S. Court of Appeals for the District of Columbia Circuit for the third time in the case’s 10-year history. Last year, following our written briefs and oral argument, the U.S. Supreme Court agreed with us, by an 8-1 vote, that the D.C. Circuit was obliged to rule on whether Congress’s law is valid. It rejected the State Department’s argument that our lawsuit raised a “political question” that the courts should not address.
The government’s claim that the law should be nullified can be summed up as follows: (a) listing “Israel” as the place of birth on the passport of a Jerusalem-born American citizen (as required by the statute) is tantamount to the United States formally recognizing Israel’s sovereignty over Jerusalem; (b) “recognizing foreign sovereigns” is a power that belongs exclusively to the president of the United States; (c) therefore the statute is unconstitutional because Congress’s law trenched on a power that belongs only to the president.
In our briefs and at oral argument, my father and I provided numerous responses to the government’s position.
1 .There is no “recognition power.” The authority to “recognize foreign sovereigns” is not specified anywhere in the Constitution. Article II, Section 3 of the Constitution (the “Recognition Clause”) states that the president “shall receive Ambassadors and other public Ministers.” Recent historical research has established that the instruction to “receive Ambassadors” described a ceremonial duty, assigned to the president as a practical matter, and was not intended to grant the president any foreign policy “power” at all.
2. Any “recognition power” is shared by the Congress and the president. A review of American history demonstrates that Congress and the president have been viewed as equal partners in recognizing foreign sovereigns. Presidents such as James Monroe, Andrew Jackson, Zachary Taylor and Abraham Lincoln believed that they were not free, without Congressional approval, to accord official recognition to new foreign governments.
3. Designation of place of birth on a passport is not tantamount to formal recognition of sovereignty. The State Department regularly lists entities that are not sovereign countries as “place of birth” on U.S. passports. For example, American citizens born in the “West Bank” or “Gaza Strip” may choose to have those designations on their passports. American citizens born in Israel before 1948 may even choose to have their birthplace recorded as “Palestine,” never a “sovereign country.” In 1994, Congress passed a law directing that “Taiwan” be recorded, on request, as the place of birth of American citizens born in Taiwan even though the United States does not recognize Taiwan’s sovereignty. The State Department nonetheless accepted Congress’s judgment, allowed Taiwan to be listed as a place of birth as directed by Congress, and issued a statement declaring that “the United States does not recognize Taiwan as a foreign state.”