The Jerusalem Post
By Yonah Jeremy Bob, November 02, 2014

Court to decide whether “Israel” can appear on passports of Americans born in Jerusalem.

US passport [Illustrative]. (photo credit:INGIMAGE)
US passport [Illustrative]. (photo credit:INGIMAGE)
The US Supreme Court is expected on Monday to hear oral arguments on whether Americans born in Jerusalem can have “Israel” written as their place of birth on their passports.

The case, Zivotofsky v. Kerry, has been winding through the American courts for years, with major setbacks followed by unexpected decisions putting the case back on track.

US policy, under both Republican and Democratic presidents since the founding of the State of Israel, has been that passports of Americans born in Jerusalem will read merely Jerusalem as place of birth, not Israel.

The basis of the policy has been to avoid taking sides in the Arab-Israeli conflict over the status of the city, despite the state’s annexation of Jerusalem decades ago.

But in 2002, Congress passed the Foreign Relations Authorization Act, which require the US government to place “Jerusalem, Israel” as the place of birth for Jerusalem- born US citizens.

President George W. Bush ignored Congress, claiming it had interfered with his powers to direct foreign policy on the issue of if, or when, to recognize foreign countries’ claims to land, and President Barack Obama has followed suit.

The parents of Menachem Zivotofsky, born in 2002, sued, and along with a coalition of supporters have pushed the case through the courts to try to force the president to comply with the law.

In 2011, the Court of Appeals for the District of Columbia declined to give a position on the dispute, saying that it had to defer to the executive branch since the issue involved foreign policy, which US courts steer clear from.

The Supreme Court intervened and ordered the appeals court to revisit the issue and analyze the merits of the sides’ arguments. In revisiting the issue in July 2013, the same appeals court declared the 2002 law unconstitutional, taking the president’s side that Congress had overreached into foreign policy areas controlled by the executive branch.

In April, the Supreme Court agreed to hear the Zivotofsky family’s appeal of the appeals court’s second rejection of its case – and its decision on that final appeal is what is expected on Monday.

Commentators predict that despite saving the case on an interim basis twice, the Supreme Court will likely side with the president.

The arguments for this side start with the idea that Congress unconstitutionally infringed on the power of the president to decide which foreign countries to recognize and under what terms.

Or put differently, the pro-president camp says the court should rule that because the president controls foreign policy about whether the US recognizes Jerusalem as part of Israel or not – pending any resolution of the Arab-Israeli conflict and the fulfillment of UN Security Council Resolution 242 that governs negotiations – he gets the last say on what appears under the entry for country of birth on a passport.

They attack the idea that Congress has a role in this area by virtue of its wide-ranging “necessary and proper” or “commerce” powers under the US Constitution, saying that the problem with separating out the powers is that registration is performed through the State Department, an office controlled by the president.

They say that traditionally, Congress can at most perform oversight, and threaten to withhold funding to maneuver the president into accepting portions of congressional goals.

Most important, they say that changing the policy would profoundly damage US foreign policy interests, as it would anger allies in the Middle East and elsewhere, appearing to be taking Israel’s side on the broader Jerusalem issue.

The Zivotofsky pro-Congress camp argues that the president and Congress have always shared measures of foreign policy power, with Congress controlling funding, for example.

They argue that the US Supreme Court has pushed back against presidential claims of exclusive power in a number of areas, some overlapping with foreign policy.

Many point out that simply allowing Jerusalem, Israel on passports does not in any way push the US to recognize the city as Israel’s capital, with some arguing that the US could write a disclaimer, making it clear that the words did not signify formal recognition.

Others have said that the president has exaggerated the potential fallout from any change in the passports, stating that the Palestinians have not filed a brief against the proposed policy change and that any fallout would be superficial and short-term once countries realized the US was not formally recognizing Jerusalem as Israeli.

After the court’s decision there can be no further appeal.


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