The Cutting Edge

The American parents of a boy born in Jerusalem, Israel can litigate their insistence that their son's US passport list Israel as his birthplace. So says a US Supreme Court ruling just issued. Since the founding of Israel in 1948, successive American governments have declined to recognize any country as having sovereignty over Jerusalem, which is home to the holiest sites in Judaism and Christianity and  the third holiest site in Islam. The State Department, applying long-standing US policy, insisted that nine-year-old Menachem Zivotofsky's birth certificate, and thus his passport, show Jerusalem—with no country specified—as the place of birth. Parents Naomi and Ari Zivotofsky, filed a lawsuit in 2003 challenging this in federal court in Washington, DC, basing their argument on a 2002 American law, passed just before Menachem was born.

Constitutional lawyers Nathan Lewin and Alyza Lewin fought for the right to argue the case. Nathan Lewin ultimately prevailed at the high court.

A feature of the contentious lawsuit was the usuaal spectacle of website scrubbing by the the State Department under instructions from the Obama Administration and Secretary of State Hilary Clinton. In the run-up to the court's ruling, pictures with captions reading "Jerusalem, Israel" were changed to delete the word "Israel." One of them was of a Yad Vashem Holocaust Memorial ceremony. Moreover, others citizens who had received passports stamped "Israel" were told to turn them in to correct a bureaucratic error.

Fundamental dynamics of Congressional intent and presidential policy are at stake. In the 35-page ruling, the Supreme Court declared, "They [the petitioners] argue that these powers include the power to specify the content of a passport (or consular birth report). And when such a specification takes the form of statutory law, they say, the Constitution requires the President (through the Secretary of State) to execute that statute."

The ruling continued, "Were the statutory provision undisputedly concerned only with purely administrative matters (or were its enforcement undisputedly to involve only major foreign policy matters), judicial efforts to answer the constitutional question might not involve judges in trying to answer questions of foreign policy. But in the Middle East, administrative matters can have implications that extend far beyond the purely administrative. Political reactions in that region can prove uncertain. And in that context it may well turn out that resolution of the constitutional argument will require a court to decide how far the statute, in practice, reaches beyond the purely administrative."

The High Court wondered whether "enforcement [of Congressional intent] will interfere with the President’s ability to make significant recognition-related foreign policy decisions." That said, the inconsistency of State Department official policy could not be overlooked.

The ruling also took notice of "the fact that sometimes Jerusalem does (because of what the Government calls “clerical errors”) carry with it the name of “Israel” on certain official documents, again apparently without seriously adverse effect."

Zivotofsky argued that is it is "unfair to allow the 100,000 or so Americans born in cities that the United States recognizes as under Israeli sovereignty, such as Tel Aviv or Haifa, the right to a record that mentions Israel, while denying that privilege to the 50,000 or so Americans born in Jerusalem.

Lewin, who argued the successful Zivotofsky case before the Supreme Court, said, "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."

He added, "We are gratified that the Supreme Court overwhelmingly reversed the lower court decision that had dismissed the lawsuit we brought to enable American citizens born in Jerusalem to designate 'Israel' as their place of birth on passports and birth certificates. The lower court had refused to enforce a duly enacted law that was signed by the President and that gave US citizens this right. That ruling was based on the erroneous assertion that our
lawsuit presented a 'political question' that a court could not decide. 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."

As for what is next, Lewin stated, "We hope that the Court of Appeals will promptly schedule further proceedings in which the important constitutional issues that we presented to the Supreme Court that are summarized in Chief Justice Roberts' opinion can be heard and decided. 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. The Court, on its own, asked the parties also to present the arguments concerning the constitutionality of the Congressional law. In today's decision, the Supreme Court recognized the great diffrculty of that constitutional question, and it deferred decision on it until after the arguments are considered and decided by the Court of Appeals."

Lewin believes, as he explained, "that questions relating to Congress' power over passports and questions relating to the scope of the "recognition power" will surely be debated in friend-of-the-court briefs, as will Congress' authority in matters affecting foreign relations. We welcome the full discussion of these important separation-of-powers issues that will accompany future proceedings in this case.

Menachem Zivotofsky the Lewin firm's youngest client for the past nine years-- since shortly after he was born."