December 11, 2017
News Press Release

ZOA Perplexed: State Department Still Won’t List Israel on Passports of Jerusalem-Born Americans, Etc.

The Zionist Organization of America’s National  President, Morton A. Klein, released the following statement:

The Zionist Organization of America (ZOA) urges the U.S. State Department to rescind their proclamation not to act in conformance with President Donald Trump’s legal,  just and moral declaration on December 6, 2017, formally recognizing Jerusalem as Israel’s capital.  Specifically, the ZOA urges the State Department to promptly allow U.S. citizens born in Jerusalem to list “Israel” as their country of birth on their passports and consular records; and to change official maps and documents to show Jerusalem as Israel’s capital.

ZOA is concerned that during a special State Department press briefing on December 7 (the day after the President’s declaration of recognition), the State Department’s official representative stated:

There is now no contradiction between Congress and the president.  The will of Congress, expressed in the Jerusalem passport law, is now consistent with the president’s recognition of Jerusalem as Israel’s capital.  Passports and consular documents should therefore list “Israel” as the birthplace of American citizens born in Jerusalem, upon the request of such citizens or their legal guardians.

There has been no change in our policy with respect to consular practice or passport issuance at this time. . . . With respect to maps, we are, of course, examining that issue, and when we have a decision we will announce it with respect to how we will treat Jerusalem for official USG-produced mapping purposes.”  (Special Briefing With Acting Assistant Secretary David M. Satterfield, Acting Assistant Secretary of State, Bureau of Near Eastern Affairs, Dec. 7, 2017.)

As the Chairman of the House Committee on Oversight and Government Reform Subcommittee on National Security, Congressman Ron DeSantis (R-FL) tweeted yesterday, the State Department’s continuing refusal to allow American citizens born in Jerusalem to list Israel as place of birth “does NOT faithfully implement the President’s policy to enact the tenets of the Jerusalem Embassy Act.  Passports should say ‘Jerusalem, Israel’!”  [Or should simply say “Israel.”]

The State Dep’t is Contradicting the Rationale of the Supreme Court’s Passport Law Decision: The State Department’s refusal now to list Israel on passports of Americans born in Jerusalem, after the president has formally recognized that Jerusalem is Israel’s capital, also contradicts the rationale of the U.S. Supreme Court’s decision in Zivotofsky v. Kerry, 576 U.S. ___, 135 S.Ct. 2076 (2015). 

In Zivotofsky, the Supreme Court stated that “the Secretary [of State] will not list a sovereign that contradicts the President’s recognition policy in a passport.” 

Thus, because the U.S. president had not yet recognized Jerusalem as Israel’s capital at the time of the Zivotofsky decision, at the request of the U.S. State Department, a majority of the Supreme Court invalidated a federal law that authorized U.S. citizens born in Jerusalem to have “Israel” listed as their birthplace on their passports and consular documents (Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, a/k/a the “Jerusalem passport law”). 

The Supreme Court held: “Because the power to recognize foreign states resides in the President alone, §214(d) infringes on the Executive’s consistent decision to withhold recognition with respect to Jerusalem.”  The Supreme Court explained that Congress may not “requir[e] the President to contradict an earlier recognition determination in an official Executive Branch document.”

The situation has changed dramatically now that the president has recognized Jerusalem as Israel’s capital.  There is now no contradiction between Congress and the president.  The will of Congress, expressed in the Jerusalem passport law, is now consistent with the president’s recognition of Jerusalem as Israel’s capital.  Passports and consular documents should therefore list “Israel” as the birthplace of American citizens born in Jerusalem, upon the request of such citizens or their legal guardians.  

Maps and Official Documents:  This same rationale must lead the State Department to immediately ensure that maps and other official U.S. documents are modified to reflect Jerusalem as Israel’s capital.  Section 214(c) of the Foreign Relations Authorization Act, Fiscal Year 2003 – the same law that contained the Jerusalem passport provisions – expressed Congress’s view that official government documents and maps must also list Jerusalem as Israel’s capital.  Section 214(c) states:

(c) LIMITATION ON USE OF FUNDS FOR PUBLICATIONS.— None of the funds authorized to be appropriated by this Act may be available for the publication of any official government document which lists countries and their capital cities unless the publication identifies Jerusalem as the capital of Israel.

Recognition Signifies Respect for Attendant Rights:  The State Department should not be permitted to turn President Trump’s formal recognition of Jerusalem as Israel’s capital into meaningless and empty words.  As former Justice Antonin Scalia explained in his Zivotofsky dissenting opinion (joined by Chief Justice Roberts and Justice Alito in a separate opinion):

Recognition is more than an announcement of a policy. Like the ratification of an international agreement or the termination of a treaty, it is a formal legal act with effects under international law.  It signifies acceptance of an international status, and it makes a commitment to continued acceptance of that status and respect for any attendant rights. See, e.g., Convention on the Rights and Duties of States, Art. 6, Dec. 26, 1933, 49 Stat. 3100, T. S. No. 881. “Its legal effect is to create an estoppel. By granting recognition, [states] debar themselves from challenging in future whatever they have previously acknowledged.” 1 G. Schwarzenberger, International Law 127 (3d ed. 1957).

The Passport Law Had Significant Support Even Prior to Recognition:  The three dissenting Justices in Zivotofsy (Scalia, Roberts, and Alito) opined that the former U.S. president and State Department should have abided by the Jerusalem passport law even without presidential recognition of Jerusalem.  Chief Justice Roberts’ strongly-worded opinion, joined in by Justice Alito stated: “Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.” 

In addition, a fourth justice, Justice Thomas (concurring in part and dissenting in part) opined that the U.S. State Department should have followed the portions of the U.S. passport law requiring the State Department to list “Israel” on consular reports of birth, even prior to formal recognition. 

We thus urge the State Department to act consistently with President Trump’s decision recognizing Jerusalem as the capital of Israel.  The State Department must permit “Israel” to be listed on American citizens’ passports and consular documents.  And it must identify Jerusalem as Israel’s capital on U.S. official documents and maps.