web analytics
October 21, 2014 / 27 Tishri, 5775
At a Glance
InDepth
Sponsored Post
Meir Panim with Soldiers 5774 Roundup: Year of Relief and Service for Israel’s Needy

Meir Panim implements programs that serve Israel’s neediest populations with respect and dignity. Meir Panim also coordinated care packages for families in the South during the Gaza War.



Home » InDepth » Op-Eds »

Where Was The President When He Supposedly Was In Israel?


Lewin-041213

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 alyza@lewinlewin.com.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

One Response to “Where Was The President When He Supposedly Was In Israel?”

  1. Gil Gilman says:

    The State Department's stance is so laughable that no comment should be necessary, but if anyone wishes to debate based on the merits of the case, I'm here. I suppose they imagine that millions of Americans would be flooding Jerusalem to have their fetuses turned into babies with "born in Israel" stamped on their passports…lol…lol…lol…and then have to explain this to the Oil Barons who rule their pockets.

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
Prime Minister Binyamin Netanyahu at a government meeting.
Proposed Conversion Bill, Change in Local Rabbinate Power Nixed by Netanyahu
Latest Indepth Stories
Map of Syria-Turkish border area, pinpointing Kurdish border town of Kobani, just taken by ISIS terror forces Oct 7, 2014.

Turkey and Iran the 2 regional powers surrounding the ISIS conflict gain from a partial ISIS victory

The Rosenstrasse area of Berlin, where Jewish husbands of non-Jewish German wives were held.

Emigration from Israel is at an all-time low, far lower than immigration to Israel from Europe.

NY rally against Met Opera's 'Death of Klinghoffer' opera. Sept. 22, 2014.

Leon Klinghoffer’s daughters: “‘Klinghoffer’ is justified as ‘a work of art’…This is an outrage.”

Guess who's behind the door?

Do you seriously think that as you kidnap our children we should medically treat and help yours?

Sometimes collective action against the heinous acts of the majority is not enough. The world should not only support the blockade of Gaza; it must enforce the dismantling of Hamas.

The Arab Spring has challenged Jordan with the task of gradual reform with regard to its monarchy.

Israel offered Syria the entire Golan Heights, only to find that the Syrians were demanding MORE!

Israeli hasbara too can be described at best as pathetic, at worst non existent.

A ‘good news’ story from the Nepal avalanche disaster to warm your heart. Take out your Kleenex.

Journalists see the Israeli-Palestinian conflict as morality play: Israel=evil; Palestine=innocent

Warsaw Ghetto: At its height, the Nazis walled in some 500,000 Jews within the1.3 square mile area.

While police officers face dangers every day on the job, Jews also face danger in their daily lives.

Carter developed a fondness for Arafat believing “they were both ordained to be peacemakers by God”

If Hamas is ISIS, the world asks, why didn’t Israel destroy it given justification and opportunity?

That key is the disarming of Hamas and the demilitarization of Gaza – as the U.S., EU, and others agreed to in principle at the end of Operation Protective Edge.

We have no doubt there are those who deeply desire to present themselves as being of a gender that is not consistent with their anatomy, and we take no joy in the pain and embarrassment they suffer.

More Articles from Alyza D. Lewin
Lewin-041213

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?

Printed from: http://www.jewishpress.com/indepth/opinions/where-was-the-president-when-he-supposedly-was-in-israel/2013/04/10/

Scan this QR code to visit this page online: