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Status Update

Americans born in Jerusalem are prohibited from listing Israel as their birthplace. A case at the Supreme Court today seeks to change that.

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(Illustration: Tablet Magazine; passport: Shutterstock; Jerusalem: Antonio Acuña/Flickr)
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Jewish Law: Meet the Man Fighting to Make the State Department Put Jerusalem in Israel

Nathan Lewin helped prosecute Jimmy Hoffa. Now in practice with his daughter, he’s a Supreme Court regular and a top litigator for Jewish causes

Where is Jerusalem located? What seems like a simple matter of geography is actually a thorny diplomatic issue, one the U.S. State Department has aggressively avoided answering on official U.S. forms since the early 1990s. On passports and birth certificates, Americans born in Jerusalem are prohibited from adding “Israel” after the city name. Instead, Israel’s capital is listed without a nation attached to it, a purposeful ambiguity meant to suggest that Foggy Bottom doesn’t favor the Israelis or the Palestinians. Jerusalem’s ultimate status will be resolved in a final peace agreement at some later date—or by the Supreme Court, which is hearing arguments today in the case of Menachem Binyamin Zivotofsky v. Hillary Rodham Clinton.

Menachem Binyamin Zivotofsky was born in Jerusalem on Oct. 17, 2002. Two months later, his mother, Naomi, an American citizen like her husband, went to the embassy in Tel Aviv to request a passport for her newborn. Where the form asks for place of birth—specifically, “City & Country as it is presently known”—Naomi wrote, “Jerusalem, Israel,” and requested that the official document designate the birth place by the country. Naomi’s request was not abnormal; it is standard operating procedure for Americans born in other foreign cities. Those born in Rome list Italy as their place of birth, just as those born in Tel Aviv list Israel.

But Naomi’s request was denied. “This is the only group that is being denied the right to say, ‘This is how I want to be described, this is where I was born,’ ” says Alyza Lewin, who, along with her father, Nathan Lewin, makes up the daughter-father legal duo representing the Zivotofskys.

The State Department’s concern is political. “The status of the city of Jerusalem is one of the most sensitive and longstanding disputes in the Arab-Israeli conflict,” the department’s lawyers wrote in their brief to the Court. “For the last 60 years, the United States’ consistent policy has been to recognize no state as having sovereignty over Jerusalem, leaving that issue to be decided in negotiations between the relevant parties with the peace process.” More than 52,000 current U.S. passports list Jerusalem—no country—as the place of birth.

Congress tried to change this passport policy only months before the application for baby Menachem’s passport was submitted. Tucked away in the Foreign Relations Authorization Act for Fiscal Year 2003, Congress included the following provision:

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 or the citizen’s legal guardian, record the place of birth as Israel.

The language could not be clearer: If a passport applicant requests Israel on his passport, and he was born in Jerusalem, his wish must be granted.

And yet for the past nine years, the White House has argued that the decision isn’t Congress’ to make. President George W. Bush signed this piece of legislation—but after disavowing the passport provision with a signing statement arguing that it “impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch … [to] speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.”

President Barack Obama’s State Department seeks to continue Bush’s policy on the matter. The department is arguing that enforcing the 2002 law will alter U.S. foreign policy in a way that the executive branch does not intend, sending a message to the Palestinians that the United States has sided with Israel over who gets Jerusalem in a future final-status agreement. The petitioner, on the other hand, contends that the issue at stake is far more limited: The Lewins argue that the congressional act is “an extremely narrow and limited correction of a discriminatory State Department practice.”

It did not always apply only to Jerusalem. Alyza Lewin points to the precedent of Taiwan, toward which the United States has largely maintained a policy of “strategic ambiguity” about the island’s relationship with China. “In 1994,” she explained, “Congress passed a law that said that if individuals born in Taiwan want to put Taiwan down as their place of birth on their U.S. passport, then they should be allowed to put Taiwan.” At the time, the State Department argued that the law would negatively interfere with the executive branch’s foreign policy. Seventeen years later, the petitioners point out, there is “no apparent harm to relations with China” because of the law. The government contends that Zivotofsky is not a parallel case, since the Taiwan policy is “consistent with the United States’ recognition that the People’s Republic of China is the ‘sole legal government of China’ and ‘Taiwan is a part of China.’ ”

So far, the case attracted the most public attention in August, when the White House was caught changing photo captions on its website so that “Jerusalem, Israel” would simply appear as “Jerusalem,” an apparent attempt to conform with the State Department’s position before today’s case. The website scrubbing carried over to the State Department’s own site and other government archives.

The only organization to file an amicus brief in support of the State Department is Americans for Peace Now, a left-wing advocacy group. The Zivotofskys, however, have attracted widespread support, including from the Anti-Defamation League, AIPAC, various religious groups of all denominations, members of Congress (at least 28 U.S. senators and 11 members of the House of Representatives), the Zionist Organization of America, and the American Association of Jewish Lawyers and Jurists, among others.

But despite the popularity of the petitioner’s position, the government will likely win this case. The Court won’t rule that Jerusalem is not in Israel. Rather, it will avoid getting involved in an intra-government squabble between Congress and the White House. And if that happens, then the only person capable of changing the rules to allow Menachem to put Israel on his passport is the president.

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Constitutional Questioner says:

The problem here is not just one of Israeli sovereignty over Jerusalem. The question is also one of the constitutionality of “signing statements.” If the president did not approve of the legislation, he was free to veto it. Since he did not do so, it now has the imprimatur of the executive branch. The State Department is part of the executive branch and is bound by presidential decisions.

Signing statements have no constitutional validity and were not used in this fashion (to try and circumvent aspects of a law the president does not approve while approving the bill as a whole) before GW Bush. If they were, they would function as line-item vetoes, which are not part of the federal constitution. For this reason alone the Court should insist on the execution of the law as written.

I have no strong opinions about the constitutional issue here, but the foreign policy issue is crystal-clear: “[t]he status of the city of Jerusalem is one of the most sensitive and longstanding disputes in the Arab-Israeli conflict” only in the sense that the world’s governments consistently refuse to apply the kind of skepticism towards utterly groundless Palestinian claims that they routinely apply to perfectly legitimate Israeli ones.

If Jerusalem–most of which has been Israeli territory since 1949, and all of which has been sovereign Israeli territory since 1967, is “disputed” merely because of completely groundless Palestinian claims to a city that was never, ever slated for a Palestinian state, even in the 1947 partition–is disputed territory, then all of Israel is disputed territory, by exactly the same reasoning.

Then again, I expect that most of the defenders of the “disputed” label for Jerusalem agree…

ranger says:

Please, if you live in the occupied territorie,stay there, we in america hate the fact that you suck our money to build
housing in the west bank. If you are born in Israel you stay there. No your not an american citizen,stay there. when you stop taking money from the mouths of american children and elderly to satisfy your expansionist desires and destructive ways, when you stop killing women and children, the you can visit america, but pleasee don’t stay.

OK Ranger no problem. I wouldn’t want to stay in a country that was built on the genocide of the Native Americans and the oppression of African slaves, and now daily murders innocent Afghanis.

Moshe Bar-Z'ev says:

Well if Jerusalem isn’t in Israel, then the American diplomats accredited here are not really diplomats and should not be exempt from paying for parking tickets and all the other traffic regulations they flaunt.

Raymond in DC says:

If the Supreme Court elects not to second-guess the Executive Branch on “foreign policy” grounds, it will fall to the next President, one hopefully less hostile to Israel, to make things right. (Obama was recently caught on an open mike with Sarkozy, both saying rather unflattering things about Netanyahu.)

That the White House and State Department resorted to “scrubbing” photos and documents of any reference to “Jerusalem, Israel” just to create the illusion of consistency tells us all we need to know.

Maurice Samuelson says:

Two questions:
(a) Does this State Department omission of “ISRAEL” from the passports of Jerusalem-born Americans pre-date the 1967 reunification of Jerusalem?
(b) How does it affect Jerusalem-born ARAB holders of US passports?

To MS:
(a) as far as I know, yes.
(b) same as Jews

but previous policy has nothing to do with the current situation following the Jerusalem Bill passing Congress.

MH Ganz says:

From the beginning of time to the end the State Department will always be against Jews and Israel.

I. Carrucini says:

Ranger, let’s not forget who built NY it was the jews. Sir you need to study history of the jewish people and of who owns wall street. If the jews left this country it certainly would go down faster than it is right now. And I am sure you proclaim to believe in Jesus guess what HE WAS A JEW. OOPS that hurt ouch. and furthermore you are an inmigrant yourself and your people because the real Americans where the Indians that you killed and took their land. How about if you were in those other peoples shoes, ha?

Good article

Elizabeth Tallman says:

I am ashamed by the policies induced and approved of by my U.S. government. Jerusalem is and always has been the capital of Israel. When will the U.S. have leaders that are not afraid of the Islamic nations and will proclaim what we know as truth – Jerusalem is the capital of Israel.

Jerusalem is only the undivided capital of Israel in your deeply delusional dreams.

Big help, big help. And superlative news of csoure.

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Status Update

Americans born in Jerusalem are prohibited from listing Israel as their birthplace. A case at the Supreme Court today seeks to change that.

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