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.