In a case that could affect thousands of Jerusalem-born Americans, the Zionist Organization of America (ZOA) filed an amicus (“friend of the court”) brief last Friday with the U.S. Supreme Court, urging the Court to uphold the right of American citizens born in Jerusalem to have “Israel” listed as their birthplace on their passports, certifications of nationality and registrations of birth. The ZOA’s brief supports the Petitioner before the Court – Menachem Binyamin Zivotofsky, an American born in Jerusalem who, contrary to U.S. law, was refused a passport listing “Israel” as his birthplace. The passport listed only his city of birth in Jerusalem.
In 2002, Congress passed legislation permitting American citizens born in Jerusalem to have “Israel” recorded as their birthplace on their passports and other documents. President George W. Bush signed the legislation into law. The language of the law is clear, mandating the U.S. State Department to list “Israel” if a Jerusalem-born American requests it. But the State Department has refused to comply with the law, claiming that it would interfere with the President’s power to recognize foreign sovereigns. (The U.S. has not officially recognized Jerusalem as Israel’s capital.)
In 2003, Zivotofsky filed an action to enforce the law. At or about the same time, the ZOA filed a separate suit on behalf of another American citizen born in Jerusalem whose right to have “Israel” on his passport was denied. The ZOA was the only Jewish organization to take formal legal action to implement the law. The two cases were consolidated in the federal district court in Washington, D.C.
The Zivotofsky case made its way to the Supreme Court. The Court will be examining two issues: (1) whether the case involves a “political question” that the courts are not competent to resolve; and (2) whether the statute impermissibly infringes on the president’s power to recognize foreign sovereigns.
The ZOA’s amicus brief shows that many departments and agencies in the Executive Branch – including the State Department – have routinely referred to Jerusalem as part of the State of Israel, without any evident impact on foreign policy or any power that the President might have to recognize foreign sovereigns. It is thus very difficult to conceive of how listing “Israel” on an American citizen’s passport would impermissibly infringe on foreign policy or any presidential power to recognize foreign sovereigns.
The ZOA’s brief also shows that the State Department’s policies and practices for issuing passports are irrational and arbitrary. And when it comes to Israel, they are offensive. The State Department’s general rule is that the country that currently has sovereignty over the actual birthplace should be listed as the place of birth on American citizens’ passports, regardless of when the birth occurred. But when it comes to the sovereign State of Israel, the State Department will ignore this rule and defer to the personal preferences of passport applicants who do not want to identify with Israel.
Passport applicants born before 1948 in an area that the U.S. recognizes as part of the sovereign state of Israel are not required to have “Israel” listed as their birthplace if they object to it. They can have “Palestine” recorded instead – even though “Palestine” is not and never has been a sovereign nation. Passport applicants born in or after 1948 in an area that is under U.S.-recognized Israeli sovereignty are also not required to have “Israel” listed on their passports if they do not want it. The State Department will permit them to list their town or city of birth instead. Yet incongruously and insensitively, the Department is refusing to respect and honor the preferences of Americans born in Jerusalem who want to identify with Israel by having “Israel” listed as their birthplace on their passports. Clearly, it is not that the State Department cannot accommodate the preferences of Americans born in Jerusalem due to considerations of foreign sovereignty; the State Department simply has chosen not to accommodate them.
Morton A. Klein, the ZOA’s National President, and Susan B. Tuchman, Esq., the Director of the ZOA’s Center for Law and Justice, stated: “From the time that the State Department refused to enforce the so-called ‘passport law,’ the ZOA has been dedicated to ensuring that the statutory right of American citizens born in Jerusalem to have ‘Israel’ recorded as their birthplace is enforced as clearly written. The State Department’s refusal to enforce the law – which President Bush signed – and respect the preferences of Americans who want to identify with Israel is arbitrary, unfair and downright offensive. We were pleased and proud to submit a brief to the Supreme Court last Friday, to help the Court decide the issues raised in the case. We hope that the Court will conclude that the law is constitutional and that the State Department must enforce it.
“We thank the Zivotofsky family and their distinguished legal team, Nathan Lewin, Esq. and Alyza Lewin, Esq. for their commitment to protecting the rights of American citizens born in Jerusalem, Israel’s capital. We also thank several of the esteemed lawyers on the ZOA’s national board who provided such helpful input to the ZOA’s amicus brief: Vice Chair Steven M. Goldberg, Esq.; Edward M. Siegel, Esq., and Malvina Halberstam, Esq., a Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. Special thanks to ZOA national board member David I. Schoen, Esq., for his invaluable input and for serving as ZOA’s counsel of record on the brief.
“We urge all American citizens to contact their representatives in Congress and call on them to speak out in support of the law that gives Americans born in Jerusalem the right to have ‘Israel’ listed as their birthplace on their passports and other documents. Enforcing this right should not only be important to Americans who understand that Jerusalem is the capital of the Jewish State of Israel. It should also be important to all Americans who believe in our Constitution and the separation of powers in our system of government. When Congress enacts clearly-worded legislation, and the President signs it into law, it must be enforced.”