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Jerusalem Passport Issued Debated in Court as Obama Arrives in Israel

March 20th 2013

Western Wall - Wailing Wall Jerusalem

On Tuesday the law firm of Lewin & Lewin presented oral arguments before the U.S. Court of Appeals for the District of Columbia Circuit on behalf of its 10-year-old client, Menachem Zivotofsky, in the high profile case of Menachem Zivotofsky v. Secretary of State (No. 07-5347). At issue in the case is the right of a Jerusalem-born American citizen to self-identify as born in “Israel” on his or her U.S. passport and birth certificate. 

 

In 2002, Congress passed a law that directed the Secretary of State to record the birthplace of American citizens born in Jerusalem as “Israel” on the U.S. passport and birth certificate of those who so request. Since the bill’s enactment, the Executive Branch has refused to enforce the law, claiming that to do so would infringe on the President’s authority to “recognize foreign sovereigns.” Zivotofsky was born in October 2002 in Shaare Zedek Hospital in Jerusalem. His parents requested that, pursuant to the statute, his place of birth be listed as “Israel.” The State Department refused and listed his place of birth as “Jerusalem.”  Zivotofsky sued in September 2003 to compel the State Department to comply with the law.

 

Tuesday marked the third time in the case’s 10-year history that Lewin presented arguments in the case before the Court of Appeals.  Last year, the U.S. Supreme Court ruled 8-1 that the D.C. Circuit was obliged to review the case on the merits, rejecting the government’s argument that the case raised a “political question” that the courts were not authorized to address.

Mr. Lewin opened his argument by noting that it was “fortuitous” that the oral argument in the Zivotofsky case was taking place one day before President Obama’s scheduled trip to the Middle East. He pointed out that the State Department, in its brief, had claimed that it would “critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process” if there were “any unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel.” Mr. Lewin went on to note, however, that the White House publicized the President’s visit on its website and in a press release as “The President’s Trip to Israel, the West Bank and Jordan.” The schedule posted by the White House lists an itinerary that is almost entirely within the City of Jerusalem – meetings in Jerusalem with the President of Israel and Israel’s Prime Minister, two overnights in the King David Hotel, a speech by President Obama in the Jerusalem Convention Center, and visits to Mount Herzl, Yad Vashem, and the grave of former Prime Minister Rabin. Mr. Lewin noted that “it is hard to imagine any more `symbolic and concrete’ official recognition of Jerusalem as being in Israel than describing the President’s forthcoming travels to prominent Jerusalem sites as a `trip to Israel.’”

During the course of the hearing, which lasted over an hour although only 40 minutes had been allotted, Mr. Lewin was questioned actively by the three judges on the panel – Karen L. Henderson, Judith W. Rogers, and David S. Tatel. One issue in the case is whether the Constitution grants the authority to “recognize foreign sovereigns” exclusively to the President or concurrently to both the President and the Congress. In his brief, Mr. Lewin presented significant historical evidence demonstrating that the “recognition power” is shared by both the Executive and Legislative branches. Presidents such as James Monroe, Andrew Jackson, Zachary Taylor, and Abraham Lincoln believed that they needed Congressional approval to accord official recognition to foreign governments.

The Appellate Judges focused most of their questions at the hearing on the alternative argument presented by Mr. Lewin, namely that listing “Israel” as the place of birth on a passport for a citizen born in Jerusalem does not amount to formal recognition of Israel’s sovereignty over Jerusalem. Mr. Lewin noted that place of birth is included on a passport merely as a means of identification and that Congress has broad authority to enact passport legislation. Mr. Lewin also demonstrated that the U.S. regularly lists entities that are not recognized sovereigns as “place of birth” on passports, including “West Bank,” “Gaza Strip,” “Palestine” and “Taiwan.” Mr. Lewin pointed out that the law enacted by Congress sought to end the State Department’s discriminatory practice of allowing those who wish to remove any reference to Israel from their passport to do so, but prohibiting those born in Jerusalem from listing Israel on their passport. (For example, the State Department regulations permit American citizens born in Tel Aviv to list their place of birth as “Tel Aviv” instead of “Israel” if they are offended by having “Israel” listed on their passports.)

Justice Department attorney Dana Kaersvang told the appellate court that the Government is concerned over potential negative reaction from the international community if the United States were to permit American citizens born in Jerusalem to designate their place of birth as “Israel.” Mr. Lewin responded that the Government exaggerates the potential international response and he noted that there had been no friend-of-the-court brief submitted by any organization challenging the constitutionality of Congress’ law in either the Supreme Court or in the Court of Appeals.


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