This policy has nothing to do with the oft-stated US objections to the Israeli “occupation” and new construction in the West Bank and the parts of Yerushalayim beyond the pre-1967 “Green Line.” Instead, it seeks to turn back the clock to the situation in effect before the US recognition of Israel in 1948, and to insist that, with regard to Yerushalayim, Israel does not even exist.
The issue is even more symbolic because Israel has declared Yerushalayim to be its capital, and has located both the Knesset and the Prime Minister’s office in the city. Thus, the US refusal to refer to Yerushalayim in a legal government document, such as a passport, as part of Israel, takes on a dual significance, by denying the legitimacy of the state as well.
PART OF AN ARAB ATTEMPT TO REWRITE HISTORY
This State Department policy has been a sore point with US supporters of Israel since 1948, and has taken on added significance with the Arab campaign to rewrite the history of the city, and deny its ancient Jewish historic roots.
In fact, despite centuries of persecution by the city’s rulers going all the way back to Ancient Rome, Jews have maintained a constant presence in the city, often at great risk to their lives. With the increase in Jewish immigration to the city at the start of the 19th century, its Jewish community grew to represent a majority of the city’s population by 1860, and shortly thereafter forced its expansion to new neighborhoods outside the Old City walls.
Jews only began to move out of the Old City for their own protection following the Arab riots in 1929. There was still a sizable Jewish population living there in 1948, when Israel declared its independence. During the subsequent war, the Old City was surrounded, cut off and put under siege by Arab armies. When the Jewish defenders ran out of ammunition and were forced to surrender, all the remaining Jewish occupants of the Old City were also forced to leave. No Jews were allowed to return for the next 19 years, until the city was reunited under Israeli rule following the Six Day War. However, during that 19 year period, the Arab occupiers established the myth of “Arab East Jerusalem” which they have fought to preserve to this day, along with the US State Department.
Years of protests by friends to Israel to various presidential administrations to change that arbitrary State Department passport policy have fallen on deaf ears. The State Department position is that refusing to recognize any part of Yerushalayim as Israeli territory is essential to US foreign policy, and that foreign policy is the exclusive mandate of the executive branch of the federal government, rather than the courts..
CONGRESS STEPS IN, AND THE WHITE HOUSE IGNORES IT
However, in 2002, friends of Israel in Congress succeeded in adding Section 214 to the Foreign Relations Authorization Act (budget) for fiscal year 2003 which was entitled “United States Policy with Respect to Jerusalem as the Capital of Israel.” The first part of the section confirmed Congress’ support for the law requiring the US government to relocate its embassy in Israel to Yerushalayim. The law was passed during the Clinton administration, but ignored by Clinton and subsequent US presidents to this day. The next part of the section bars government funding for any official document that does not list Jerusalem as the capital of Israel.
The final part of Section 214 directly addresses the passport issue, and explicitly gives any citizen of the United States born in the city of Jerusalem, or their parents or guardians, the right to request that their place of birth be listed on their passport as Israel. That is in contrast to the established practice of the State Department to not list any country on US passports on which “Jerusalem” is listed as the place of birth.
President George W. Bush signed the Foreign Relations Authorization Act, with Section 214 included, but issued a signing statement which, in effect, called Section 214 an unconstitutional violation of the exclusive right of the executive branch of the US government to determine foreign policy. The administration also ordered the State Department to continue its passport policy regarding American citizens born in Yerushalayim, in deference to the delicate feelings of this country’s Arab friends over the legal rights of its own citizens.
ASSERTING A BABY’S RIGHTS
That is where the matter stood until Menachem Zivotofsky was born in 2002. Shortly thereafter, Menachem’s mother, showed up at the US embassy in Tel Aviv and demanded that her newborn son’s passport list his place of birth as Jerusalem, Israel, consistent with the stipulations of Section 214. When embassy personnel refused, Menachem’s mother called her former school friend, Alyza Lewin, the daughter of the famous Orthodox Washington attorney, Nat Lewin, to file a lawsuit against the State Department to force it to comply with Section 214 as Congress wrote it.
Aside from its inequity, the lawsuit argues that the State Department passport policy on Yerushalayim is inconsistent with US policy in two other comparable cases.
THE TAIWAN EXCEPTION
The first case is the exception which the State Department makes for US citizens born on the island of Taiwan. When the communists under Mao Zedong took over China in 1949, the leaders of the former government of China, under Chiang, Kai-shek, fled to Taiwan (then known as Formosa) and declared itself as Nationalist China. For 20 years, the US recognized Nationalist China as China’s only legitimate government and maintained a so-called 2-China policy. However, as part of President Nixon’s 1979 agreement to recognize Red China and establish formal diplomatic relations with it, the communists insisted that the US also recognize Taiwan as part of China and not an independent government. However, the US refused to abandon the nationalist government on Taiwan, and continues, to this day, in aiding in its defense against an invasion by communists from the mainland.
In 1994, Congress passed a law almost identical to Section 214. Since then, the State Department has allowed, without objections, US citizens born in Taiwan to list their place of birth on their passports as Taiwan, rather than China, even though the US no longer formally recognizes Taiwan as an independent country. Why, the lawsuit asks, won’t the State Department grant the same right to US citizens born in Yerushalayim?
WHY DO PALESTINIANS GET RIGHTS DENIED TO JEWS
The second anomaly in the State Department passport policy regarding Jerusalem is that it also gives US citizens born in the land of Israel before its independence was recognized by the US in 1948 the option to have their passports say that they were born in Palestine, even though the US has never formally recognized the existence of such a country.
The State Department claims that its passport policy is designed to avoid bruising the feelings of US citizens who may take offense to having their birth place in Jerusalem listed as being part of Israel. They have the right to have the word Israel deleted from the place of birth on their passport. The State Department also gives US citizens born in Chevron, for example, the right to request that “West Bank” be listed as the place of birth on their passports, even though the US does not recognize it as a country. In fact, State Department policy only discriminates against those US citizens born in Jerusalem who desire that their place of birth be list on their passport as “Israel,” most of whom happen to be Jews.
The federal lawsuit as filed calls the State Department policy on passports issued to those born in Yerushalayim to be both arbitrary and discriminatory to those who believe that the city should be listed as part of Israel, in accordance with the federal law.
The State Department, backed by the White House, still refuses to do so, claiming that Section 214 amounts to an unconstitutional infringement of the executive branch’s exclusive right to determine US foreign policy.
This is the crucial point which was at issue in last week’s Supreme Court ruling. It does not have anything to do with whether Jerusalem does or does not belong to Israel. It is, rather, simply a dispute over jurisdiction between the two branches of government. The Zivotofsky lawsuit contends that how a line on about 50,000 US passports owned by citizens born in Jerusalem reads will have no impact at all on US foreign policy or the legal status of the city. It is simply an internal and bureaucratic matter, well within Congress’ established authority to put various other requirements on the issuance of government passports.
ACCOMMODATING ISRAEL’S ENEMIES
In opposing the Zivotofsky lawsuit, government attorneys have warned judges that they have no right to set US foreign policy on the status of Jerusalem, even when it is clear that all Section 214 seeks to do is to honor the request of the US citizens born in Jerusalem, as to whether they want Israel listed as their place of birth or not. It is, rather, a reasonable accommodation which the State Department routinely makes to US citizens born in other places. Why, the lawsuit asks, should only those citizens who see Jerusalem as part of Israel, who are overwhelmingly religious Jews, be discriminated against, while accommodating only American citizens who, for personal ideological reasons, are “vehemently” opposed to carrying passports that show “Israel” as a place of birth?
The lawsuit argues that the State Department prohibition against listing Jerusalem as part of Israel is based upon the irrational fear that Israel’s enemies will mistakenly criticize American foreign policy based upon what is written in response to a citizen’s request in his own a passport. The lawsuit also illustrates the “folly” of the State Department’s concerns by noting that US government issues other official documents referring to Jerusalem as part of Israel without stirring up protests from the Palestinians or the rest of the Arab world.
In fact, during the years that this case was being tried in lower courts, the government admitted that the “place of birth” line on a US passport has no intrinsic foreign policy significance. Just like other entries on the passport, such as name and date of birth, its only significance is as a means of identifying the individual to whom the passport was issued, even though it is issued by the State Department.
TWO FAULTY ARGUMENTS
Nevertheless, the federal government’s case rejecting the Zivotofsky lawsuit basically stands on two arguments. The first is that the case revolves around a “political dispute” between the executive and legislative branches of government over which the courts have no jurisdiction. The second is that any ruling by the judiciary on this matter would infringe upon the exclusive right of the executive branch to decide US foreign policy. Lower federal courts refused to accept the lawsuit based upon one of the government’s arguments or the other, so the Lewins brought the Zivotofsky lawsuit to the Supreme Court, claiming that both government arguments against considering the case were wrong, and that it should be decided by the lower courts on its merits.
Monday’s decisive 8-1 ruling by the Supreme Court upheld the argument made by the Lewins that the case is within the jurisdiction of the courts to resolve, and sends it back to the US Court of Appeals for the District of Columbia Circuit for trial.
CHIEF JUSTICE ROBERTS SPEAKS OUT
The majority decision, written by Chief Justice John Roberts, clearly rejects the government’s arguments that the case seeks to resolve a political issue, or infringes on the constitutional powers of the executive branch. “The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what the United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise.”
Roberts, in his decision, also notes that the question of whether Section 214 itself is constitutional has yet to be resolved, but that the Supreme Court will not take up the matter until a lower federal court has ruled on the substance of the lawsuit. “The courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the executive by the Constitution. . . [However,] ours is a court of final review and not first view.”
Justice Stephen Breyer was the only dissenter on the court, saying there is a “serious risk” that judicial “intervention will bring about ‘embarrassment,’ show lack of ‘respect’ for the other branches, and potentially disrupt sound foreign policy decision making.” On that basis, he argued that this was one of the rare cases in which an action by the federal government is not subject to judicial review.
THE BATTLE IS WON, BUT THE WAR IS NOT OVER
After a long legal battle, Nat Lewin celebrated Monday’s Supreme Court decision, but warned that the battle in the courts is not yet over. “We are only at the 7th inning stretch. There are at least two more innings to go,” he said, referring to a ruling by the lower court on the merits of the case, and then a second Supreme Court review of that ruling. He added that “the Supreme Court has made it clear that it wants to decide the separation of powers issue finally itself,” and that the decision written by Chief Justice Roberts made him “optimistic” about the outcome.
YERUSHALAYING WIlL GET ITS DAY IN COURT
In a written statement, Lewin explained, “It has taken nine years of litigation for us finally to get to this stage, at which a federal court will be deciding whether to enforce a right Congress gave to American citizens. I hope we will soon see the effective implementation of that law and the rejection of the State Department’s groundless objection to its enforcement. . .
“As a result of the Supreme Court’s decision, we will now be presenting to the Court of Appeals our arguments that Congress acted constitutionally, and that the Department of State may not unilaterally choose to disobey the Congressional mandate. . .
“The Court’s ruling is precisely the relief we sought when we filed our request for Supreme Court review. At that time we asked the Court to decide only the legal issue that the Court decided today in our favor. . . In today’s decision, the Supreme Court recognized the great difficulty of that constitutional question, and it deferred decision on it until after the arguments are considered and decided by the Court of Appeals. . . We welcome the full discussion of these important separation-of-powers. . .
“Menachem Zivotofsky has been our firm’s youngest client for the past nine years – since shortly after he was born. We hope that he will witness a successful conclusion to this litigation by the time he celebrates his Bar-Mitzvah.”
The Associated Press contributed to this report.
