Photo Credit: Nicolas Stambach
The U.S. Supreme Court building.

On Monday, Nov. 3, the United States Supreme Court heard argument on the claim of a young American citizen who was born in Jerusalem to have his passport identify the place of his birth as Jerusalem, Israel.

That such a request is the subject of a lawsuit, let alone one which has endured for more than a decade, might be more of a surprise were the case not about Israel.

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As most people who pay attention are aware, everything about Israel is complicated – or is treated that way.

Seventeen days before Menachem Binyamin Zivotofsky was born, on Sept. 30, 2002, U.S. President George W. Bush signed the Foreign Relations Authorization Act for fiscal year 2003.  A subsection of that law was intended to prevent exactly the kind of litigation that was argued before the United States Supreme Court today, in Zivotofsky v. Kerry.

The relevant subsection of that law states that 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 or the citizen’s legal guardian, record the place of birth as Israel.”

But when plaintiff’s mother went to the U.S. Embassy in Israel and asked to have her then two month old baby registered as a United States citizen and have a passport issued to him stating that his place of birth was Jerusalem, Israel, the request was refused.

Instead, a passport was issued to Baby Zivotofsky which indicated his place of birth was Jerusalem. Just Jerusalem.

On Sept. 16, 2003, the Zivotofskys filed a Complaint in the U.S. District Court for the District of Columbia, asking the court to direct the defendant – the secretary of state – to register the child’s birthplace as Jerusalem, Israel, have the child’s passport reissued reflecting that fact, and instructing all U.S. consular officials to comply with the law signed by Pres. Bush in Sept. 2002.

That did not happen.

The reason that did not happen is that, according to the U.S. Constitution, the Executive branch of the U.S. government has a great deal of control over what U.S. foreign policy should be.

The state department, of course, is part of the Executive branch. The Constitutional clause relevant here (Article 2) says that the President of the United States has the exclusive right to “receive Ambassadors and other public Ministers” from other countries.

Over the years the Supreme Court has read that clause to mean that the President has the sole right to decide which government in any country is the legitimate one, and to decide what the U.S. is going to say when it speaks to the representatives of other countries.

The section of the law passed by Congress in the 2003 Authorization Act that is relevant to this lawsuit, therefore, forces an important separation of powers discussion.

If the question is understood to be about whether Congress or the Executive branch decides what American policy is about Israel, then Congress, and therefore Zivotofsky, is unlikely to prevail.

The case has now gone from Zivotofsky’s complaint in the federal district court all the way to the U.S. Supreme Court. The Zivotofskys are on one side, the Executive branch, on the other side, is represented by the head of the state department, Secretary of State John Kerry.

There are also many “friends of the court” known as amicus curiae, who have filed briefs as well. These amici offer their understanding of how the Supreme Court should think about and decide the issues presented in this case.

The parties, and most of the amici, have argued as if the issue in the case is whether Congress or the State Department gets to decide the foreign policy issue which they believe is central to the case.

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Lori Lowenthal Marcus is a contributor to the JewishPress.com. A graduate of Harvard Law School, she previously practiced First Amendment law and taught in Philadelphia-area graduate and law schools. You can reach her by email: Lori@JewishPressOnline.com
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