A United States passport is one of the most powerful documents in the world. It entitles the holder to travel unimpeded throughout most of the world’s countries, and affords the full protection of the United States government. Like all passports, it also serves as a defining marker of the holder’s identity, including legal name, birthplace, and current residence. According to the Brookings Institute, over 40 million people currently residing in the United States were born abroad. Of course, not all of these people are citizens — but for many of those who are, a strong connection to their origins is integral to existence within America’s giant, churning, cultural melting pot.
In 2002, Menachem Zivotofsky was born to American parents in Jerusalem. On the second page of his U.S. passport, where most people would find their own country of birth, Menachem can see only the city, Jerusalem. In fact, any U.S. citizen born in Jerusalem will not find Israel printed as the country of birth.
Coincidentally, Congress passed a bill in the same year as Menachem’s birth, a part of which permitted Israel to be printed as the birth country on the passports of Jerusalem-born children. According to the New York Times, President George W. Bush signed the larger bill, but issued a disclaimer which effectively recused him from enforcing the passport provision, claiming that it “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs and to supervise the unitary executive branch.”
In other words, Bush believed that allowing Congress to dictate what can or cannot be printed on a U.S. passport would fly in the face of the president’s ability to control official U.S. foreign policies. This position turned out to be one of the few areas of agreement between Presidents Bush and Obama — Obama concurred that Congress did not have the authority to take a stance on the status of a sovereign nation’s territory.
The Cornell University Law School’s Legal Information Institute chronicles that in 2003, Menachem’s parents, Ari and Naomi, filed a lawsuit (Zivotofsky v. Clinton) in which they “demand[ed] that the State Department comply with Section 214 of the Foreign Relations Authorization Act, which requires the State Department to record the place of birth of a U.S. citizen born in Jerusalem as Israel, if the child’s legal guardians so request.”
The Zivotofsky family lost the case in lower district courts, but the case continued to bounce around the legal system for nearly a decade until it finally landed on the steps of the Supreme Court. What started as a simple request for a legal clerical modification has morphed into a groundbreaking case that has cardinally divided the nine justices.
Although this case has struck a particularly sensitive nerve with many American Jews (and Jewish organizations), the central issue at stake within the legal battle has nothing to do with the United States’ diplomatic position toward Jerusalem’s status. Instead, the case calls into question the separation of powers among the executive, legislative, and judicial branches of government.
Without delving too deeply into the various arguments presented by the Supreme Court justices, the essence of the debate has boiled down to whether or not amending Menachem’s passport to include Israel as the country of birth would constitute a change to the official position of the U.S. government concerning Jerusalem’s status. The Politico newspaper reports that to this end, Zivotofsky’s lawyer Alyza Lewin contended that “what goes on a passport as a place of birth is not tantamount to recognition.”
Politico also mentions that Justice Elena Kagan tried pointing out an imbalance within the passport provision passed in 2002 by claiming that “while the law allows Americans born in Jerusalem to get Israel on their passports, they can’t get Palestine listed even if they believe the city or part of it is rightfully part of a Palestinian state.”
Justice Kagan’s politically correct argument quite obviously fails a simple test of logic — while it is true that a person born in Jerusalem cannot demand to have Palestine printed as the country of birth on an American passport, a person born in Jerusalem also cannot demand to have Atlantis printed, even if he or she believes that Jerusalem (or part of it) is rightfully part of Atlantis. Palestine and Atlantis share one thing in common — neither is recognized as a sovereign nation by the United States, so it makes sense that neither can be printed on an American passport.
Justice Anthony Kennedy attempted to assuage the State Department’s concerns by suggesting a compromise in which the State Department would issue a statement clarifying that allowing Israel to be listed as the country of birth on the passports of Jerusalem-born U.S. citizens does not reflect the official policy of the government. Politico goes on to report that President Obama’s attorney, Solicitor General Donald Verrilli, did not take the bait, rebutting the proposal by stating that “confusion would still persist about the U.S. government’s position” and that “the issuance of the disclaimer is a credibility hit.”
By taking on this case, the Supreme Court is doing what it was created to do — to use its justices’ knowledge of constitutional law to solve complex legal issues with far-reaching national implications. The conclusion they reach will either satisfy or disappoint the Zivotofsky family, but in any case, the ruling and all proceedings that led up to it will be in accordance with the U.S. legal system.
Most people (including the author of this article) are not Supreme Court justices and therefore would find it difficult to argue coherently for or against the constitutionality of the passport provision in question. The case should, however, draw our attention to the specific foreign policy stance that the State Department is so afraid of altering. As Justice Kagan put it, allowing the passport provision to be enforced “suggests that Congress had a view and the view was that Jerusalem was properly part of Israel.”
The LA Times reports that Justice Antonin Scalia bluntly rebutted Obama’s lawyer by pointing out that “we do not hold an act of Congress unconstitutional to make nice with the Palestinians.” However, the fact of the matter — which may take many by surprise due to its absurdity — is that the United States still does not recognize Jerusalem as a part of Israel.
This is a great opportunity to briefly revisit the history of American recognition of Israeli sovereignty. According to a timeline published by the Harry S. Truman Library and Museum, the United States issued a statement recognizing the nascent State of Israel on a de-facto basis a mere 11 minutes after David Ben-Gurion declared independence on May 14, 1948. Recognition on a de-jure basis came in January of the following year. However, neither statement made any mention of Jerusalem’s status.
After this point, the U.S. foreign policy position toward Jerusalem can best be described as an opaque and amorphous diplomatic mess. In a 1994 report, the Foundation for Middle East Peace assembled a long list of government policy pronouncements on Jerusalem that spanned Israel’s existence up to that point. These statements range from early opinions that Jerusalem should be an international zone to more recent remarks which contend that Jerusalem’s status should be determined by a peace agreement between Israelis and Palestinians.
Throughout the years, various presidents have opposed moving the US embassy from Tel Aviv to Jerusalem — the United States has operated under the dubious justification that it does not wish to artificially affect the outcome of Israeli-Palestinian peace negotiations by taking sides (there is, however, a US consulate in Jerusalem). Even so, the government has been fundamentally unable to clarify its current position on the matter. As Daniel Tauber pointed out in a Jerusalem Post op-ed piece, the State Department seems to be afflicted with a “speech disorder” whenever questioned on the matter. He points to two particularly comical instances during which then-Press Secretary Jay Carney and State Department spokeswoman Victoria Nuland both repeatedly replied “our position has not changed” when asked several times to elaborate on the government’s policy toward Jerusalem.
This response is highly inadequate for two reasons — not only has the position changed over the years, but it was never clear to begin with. It represents the government’s desire to balance itself perfectly on the proverbial diplomatic fence by maintaining its alliance with Israel while yielding to the fear of Palestinian retaliation. The circumstances surrounding the Israeli-Palestinian conflict have changed since 1948, but the U.S. government’s desire to stick to an antiquated and contradictory policy only serves to undermine its credibility.
Since the United States recognizes Israel as a sovereign nation, Israel should be able to exercise any rights granted to all other sovereign nations. In particular, one of these rights is to designate a capital within its borders. While it is true that the borders themselves are in contention according to international law, there is no question that Israel has maintained full control over Jerusalem, both economically and militarily, since the aftermath of the Six Day War in 1967.
Many of the peacekeeping efforts spearheaded by the United States have endeavored to establish Jerusalem as an international city, accessible to all religious affiliations. Prior to 1967, however, Jews were prohibited from visiting holy sites within Jordanian-controlled eastern Jerusalem. After Israel obtained full control of the city, all restrictions based on religious affiliation were lifted, aside from those pertaining to the contended Temple Mount.
The United States agrees that Jerusalem should never again be split into halves, and claims that it will only recognize sovereign control over Jerusalem once a peace agreement is reached. Despite its attempts at neutrality, it is time for the U.S. to recognize that it is a major player in the diplomatic process and that it must end the charade which pretends that Jerusalem is a city with no country. It is time for the U.S. to realize that Jerusalem, its inhabitants, and its visitors are much better off under Israel’s governance.