A federal court released its decision regarding whether it is permissible for the United States to refuse to enter “Jerusalem, Israel” on the passport of an American born in Jerusalem on Tuesday, July 23. The result was not unexpected. The court decided that a portion of the Foreign Relations Authorization Act, which congress enacted in order to allow Israel to appear alongside Jerusalem on such a passport, was an unconstitutional law. The basis for that decision was that in enacting that law, congress had impermissibly intruded upon the exclusive power of the Executive branch to conduct diplomatic relations with foreign entities.
But the surprise, and the anger – for those who disagree with the decision – should be directed at the Executive branch for its long–held position that Jerusalem is not part of Israel. And we learn in this Opinion, what is driving this long-held position. It is a fear of anger and violence if the U.S. does something to “undervalue” “Islamic rights in Jerusalem.”
Got that? The U.S. is afraid of undervaluing “Islamic rights in Jerusalem.” Perhaps the decision makers in the U.S. Department of State and all the Secretaries of State never had the opportunity to view the very important interview of Arabic Studies professor and scholar Mordechai Kedar gave to an Al Jazeera anchor. See that interview at the end of this article.
Congress sought to correct what it viewed as an incorrect decision by the Executive branch. But the judiciary branch could not allow that.
Menachem Zivotofsky was born in Jerusalem to American parents. Shortly after his birth, Zivotofsky’s parents applied for a passport for him. In the application, Zivotofsky’s mother listed his birthplace as Jerusalem, Israel.
But the U.S. State Department issued the child’s passport listing only Jerusalem – no country was listed – as his place of birth.
That year, 2002, Zivotofsky’s parents filed a lawsuit against the State Department on their son’s behalf, seeking to have a passport issued to their son which would list, as requested in the original application, Jerusalem, Israel, as the child’s birthplace.
This case has traveled up and down the federal court system, stopping in some courts more than once. It even reached the U.S. Supreme Court where a subsidiary issue was heard two years ago, before being sent back down the court system for further development.
The Court of Appeals for the D.C. Circuit declared unconstitutional a portion of the 2002 Foreign Relations Authorization Act which would permit a passport to be issued listing as the place of birth Jerusalem, Israel for Zivotofsky and others in his position.
This is the relevant portion of the FRAA which the court declared unconstitutional:
(d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES. For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen’s legal guardian, record the place of birth as Israel.
What the court did was – not surprisingly, even if one disagrees with the result – rule that congress exceeded its powers by passing legislation which, the court found, wrongly interferes with matters over which it does not have ultimate authority. That exclusive authority instead rests with the Executive branch. The power to recognize the sovereignty of another country and to determine foreign policy, is one of the powers which the U.S. government’s separation of powers doctrine grants to the Executive branch.
What is significant about this case is not that the Court of Appeals has ruled that Jerusalem is not part of Israel.
The more interesting question is why the Executive branch is so set against even something so small as to allow a child’s passport to state that when a child was born in Jerusalem, he was also born in the country of Israel.
The D.C. court noted that it has always been the position of the Executive branch to remain neutral on the question of who has sovereignty over Jerusalem. It quotes from the State Department’s Foreign Affairs Manual which was in effect in 2002, when Menachem Zivotofsky was born and when his parents sought to have his passport list Jerusalem, Israel as his birthplace. The FAM explicitly states that, “for an applicant born in Jerusalem: ‘Do not write Israel or Jordan’ on his passport.” It also states that “Israel ‘[d]oes not include Jerusalem.’”
SAME ISSUE AS IN THE JERUSALEM EMBASSY ACT
In Zivotofsky, the court treated the Foreign Relations Authorization Act, passed in 2002, the way the Jerusalem Embassy Act has been treated, in other words: “no dice.”
But what is perhaps the most interesting portion of the opinion – for people who like this kind of thing – is the court’s discussion of what was animating the passage of the Foreign Authorization Act, and then a peek into why congress believed it was forced into taking this action.
WHAT ANIMATES THE EXECUTIVE BRANCH’S HOSTILITY TO STATING JERUSALEM IS IN ISRAEL
“Our reading of section 214(d) as an attempted legislative articulation of foreign policy is consistent with the Congress’ characterization of the legislation,” the Opinion states.
Yes, that wily rogue congress was, through the FRAA, attempting to “alter United State policy toward Jerusalem.” The Opinion quotes snippets of statements made by members of congress during the hearings on the legislation. Rep. Tom Lantos, Senator Jesse Helms, Rep. Diaz-Balart, and Rep. Henry Hyde all stated that the FRAA was an effort to force the United States to recognize that Jerusalem is part of Israel.
But why is the Executive branch so dead set against recognizing that Jerusalem is the capital of Israel? That question is answered in Tuesday’s Opinion, as well. The Secretary of State responded to questioning during the discovery phase of the litigation. The Secretary addressed the reason the Foreign Affairs Manual is so explicit and so emphatic about not including Israel as the country in which Jerusalem is located:
Any unilateral action by the Untied States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.
The Palestinians would view any United States change with respect to Jerusalem as an endorsement of Israel’s claim to Jerusalem and a rejection of their own. [emphasis added by the court] Thus, ‘within the framework of this highly sensitive, and potentially volatile mix of political, juridical and religious considerations, U.S. Presidents have consistently endeavored to maintain a strict policy of not prejudging the Jerusalem status issue and this not engaging in official actions that would recognize, or might be perceived as constituting a recognition of, Jerusalem as either the capital city of Israel, or as a city located within the sovereign territory of Israel.” [emphasis added by the court]
And just to be clear about which party is the one the Executive branch is fearful of offending, the court again quotes testimony provided by the Secretary of State at an earlier stage of the litigation, who reported that “various Palestinian groups issued statements asserting that Section 214(d) ‘undermined the role of the U.S. as a sponsor of the peace process,”undervalued … Palestinian, Arab and Islamic rights in Jerusalem” and”raised questions about the real position of the U.S. administration vis-à-vis Jerusalem.’
And with that, the court rejects the relevant portion of the FRAA as a conscious effort of the congress to usurp a “considered exercise of the Executive branch’s recognition power.”
International law expert and legal professor Eugene Kontorovich explained to The Jewish Press, “The response of the U.S. government to the Zivotofsky claims really presents a much larger problem, which is the complete refusal of the U.S. to recognize Jerusalem as part of Israel at all. Even if this lawsuit was resolved satisfactorily for Zivotofsky, it still would not address that underlying problem.”
“The Jerusalem exception also illustrates the ease with which U.S. foreign policy can bend in the face if Islamic intimidation – even to the point of adopting a surreal and counterfactual policy,” Kontorovich continues. “Yet the possibility of peace with the Palestinians would depend on robust American guarantees to stand by Israel if the going got tough. The unwillingness to accede to reality on such a basic and longstanding truth does not auger well for this.”
About the Author: Lori Lowenthal Marcus is the US correspondent for The Jewish Press. She is a recovered lawyer who previously practiced First Amendment law and taught in Philadelphia-area graduate and law schools.
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