ZOA’s Amicus Brief to U.S. Supreme Court Cited in Commentary Magazine
Uncategorized ZOA in the news
October 30, 2014

Next Monday, the Supreme Court will hear oral argument again in Zivotofsky v. Kerryon the constitutionality of the law allowing Jerusalem-born Americans to have “Israel” as their place of birth in their passports, if they so request. The administration argues the Constitution’s “Reception Clause” (which provides the president “shall receive Ambassadors and other public Ministers”) gives the president sole authority over whether Americans born in the city that has been Israel’s capital since 1950 can have “Israel” in their passports. Kerry’s brief–in its opening paragraph–asserts that any action that “would signal, symbolically or concretely,” that the U.S. recognizes Jerusalem as within Israel would “critically compromise” the American ability to “further the peace process.” It would, apparently, make the process go “poof.”

It is the same argument Hillary Clinton made in her own Supreme Court brief, back when the case was titled Zivotofsky v. Clinton. But if this is a serious argument, an urgent message needs to be dispatched to the White House Web-Scrubbers. Again.

Those familiar with this case–now in its 11th year–will recall that when it first came before the Court in 2011, the White House website, inconveniently for the administration’s central argument, featured pictures of Vice President Biden’s 2010 visit to–as each caption read–“Jerusalem, Israel.” The New York Sun first reported this anomaly in an August 4, 2011 article entitled, “Jerusalem Case at Supreme Court May Pit White House Web Site Against the President.” Three business days later–and two hours after the Weekly Standard published a screenshot of one of the pictures–the White House removed the word “Israel” from every caption. Then the administration scrubbed references to “Jerusalem, Israel” on other federal websites, and even went so far as to alter documents prepared by the Bush administration.

Now that the case is back before the Court, I checked again and found that as recently as three months ago, the White House issued a press release referring to “Jerusalem, Israel.” Entitled “President Obama Announces More Key Administration Posts,” it listed nominees the president said would bring “a wealth of experience” to his administration–including one whose experience, the press release stated, included work in … “Jerusalem, Israel.” The amicus brief of the Zionist Organization of America points to numerous other references to “Jerusalem, Israel” currently on the websites of the Defense DepartmentTreasury DepartmentDepartment of Homeland Security, and other federal agencies.

If the administration genuinely believes that printing “Israel” in the U.S. passport of an American born in western Jerusalem jeopardizes a peace process currently deader than Generalissimo Franco, perhaps the president should appoint a Web-Scrubbing Czar–someone who can coordinate web-scrubbing throughout his administration. It would avoid the spectacle of an administration repeatedly making an argument repeatedly contradicted by its own websites.

And once again I ask: why is President Obama making a federal case out of this? He could do what President Clinton did when Congress passed a law giving Americans born in Taiwan the right to put “Taiwan,” rather than “China,” on their passports. Clinton implemented the law while issuing a statement that it did not change American policy that the United States recognizes only one China. Why not allow Zivotofsky to have “Israel” in his passport while announcing it does not change American policy that Jerusalem is a final status issue to be negotiated by the parties?

Such a resolution would conclude the case without a constitutional clash with Congress, and without a change in the administration’s foreign policy; it would avoid the necessity of a Supreme Court decision on an issue of first impression; it would terminate a decade of increasingly pointless refusals to implement a duly enacted law; and it will not–I think I can assure the administration on this–compromise the U.S. ability to advance the peace process. Indeed what has plagued that process for the past six years has been a U.S. administration so focused on one-sided demands on Israel that it fights all the way to the Supreme Court to avoid putting “Israel” in a Jerusalem-born American’s passport, scrubbing federal websites and altering official documents in its attempt to prevail.

This article was originally published by Commentary Magazine and may be found here.

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