Latest update: April 11th, 2013
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.”
4. The State Department policy is invidiously discriminatory. The State Department’s current rules accommodate individuals who, for personal ideological reasons, are “vehemently” opposed to carrying passports that show “Israel” as a place of birth. American citizens born in Tel Aviv or in Haifa may choose to list their place of birth as “Tel Aviv” or “Haifa” instead of “Israel.” The U.S. also permits “Palestine” (for those born before 1948) to be listed as “place of birth” on a U.S. passport. But the State Department policy fails to similarly accommodate American citizens (largely Jewish) who feel, with equal vehemence and legitimacy, that they want their passports to show “Israel.”
5. Listing “Israel” as the place of birth for Jerusalem-born American citizens will not cause distress in the Middle East. The government asserts that if the State Department lists “Israel” on the passports of Jerusalem-born Americans, it will cause an uproar in the international community. But not one Palestinian or Arab organization filed a friend-of-the-court brief supporting the government’s position challenging the constitutionality of Congress’s law in either the Supreme Court or in the D.C. Circuit Court of Appeals. They doubtless recognized that if “Israel” were listed as the place of birth for American citizens born in Jerusalem, their passports would be indistinguishable from American citizens born in Tel Aviv or Haifa. Since passports would list only the country “Israel,” it would not be possible to tell from a passport whether the bearer was born in Jerusalem or elsewhere in Israel.
6. Congress has the authority to enact passport legislation. The law enacted by Congress is a straightforward exercise of Congress’ authority over the form and content of United States passports. The “place of birth” designation was added to U.S. passports as a means of identifying the passport holder, just as individuals used to be identified on passports by their height, weight, and color of hair and eyes, and are now identified by date of birth and photograph.
There is a huge “separation-of-powers” constitutional issue that looms over the case. If there is a conflict on a foreign-policy issue between the president and the Congress, who prevails? Under the constitutional standard that the Supreme Court has been applying in recent rulings, the president may not act without express or implied Congressional approval and Congress wins if there is a direct conflict. But we maintain that the courts need not resolve this major constitutional question to decide the Zivotofsky case on any of the grounds outlined above.
In its brief, the State Department claimed it would “critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process” if there were “any unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel.”
The government’s position is belied by President Obama’s recent visit, which the White House chose to publicize on its website and in press releases as “The President’s trip to Israel, the West Bank, and Jordan.” The principal stops in Israel on the president’s itinerary were his two days of visits to places in Jerusalem. It’s hard to imagine any more “symbolic and concrete” official recognition of Jerusalem as being in Israel than describing the president’s trip to prominent Jerusalem sites as a “trip to Israel.”
After all, where was President Obama on these two days when the White House represented that he was in “Israel”? He was in Jerusalem.
About the Author: Alyza D. Lewin is a partner at Lewin & Lewin, LLP in Washington, D.C. and is currently president of the American Association of Jewish Lawyers and Jurists. She can be reached at firstname.lastname@example.org.
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