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9-year-old Menachem Zivotofsky sued the U.S. government for refusing to include "Israel" alongside "Jerusalem" as his place of birth on his passport.


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.


“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.”


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Lori Lowenthal Marcus is a contributor to the 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: [email protected]