Adeptly fielding more than 50 questions in half an hour from Supreme Court Justices yesterday, Alyza D. Lewin presented the case for enforcement of a 2002 law that gives American citizens born in Jerusalem the right to list their place of birth in U.S. passports as “Israel.” She argued alternatively (1) that “what goes on a passport . . . does not amount to sovereign recognition” and (2) that if it is viewed as amounting to recognition, “Congress has the ability afterwards, upon deliberation, to decide if they disagree with [the President’s] recognition.”
The litigation was initiated by Lewin & Lewin on behalf of Menachem Binyamin Zivotofsky, an American citizen born in Shaare Zedek Hospital in Jerusalem soon after the law was passed. His parents requested that he be issued a U.S. passport recording his place of birth as “Israel” as prescribed by Congress’ 2002 legislation, but the Department of State refused to do so on the ground that the law “interfered” with the President’s foreign-policy of not recognizing Jerusalem as being in Israel. Menachem became Lewin & Lewin’s youngest pro bono client when the lawsuit was filed in United States District Court for the District of Columbia in September 2003.
The District Judge first dismissed the case on the ground that Menachem lacked “standing” because he possessed a valid passport, and the precise place of birth did not affect the validity of the passport. After the Court of Appeals reversed that decision in 2006, the District Court dismissed the case again on the ground that the complaint raised a nonjusticiable “political question.” A majority of the Court of Appeals agreed with this ruling, but the Supreme Court reversed it in an 8-to-1 decision in 2012. The Court of Appeals then found Congress’ law unconstitutional, and the Supreme Court again agreed to review that decision.
Justice Kennedy suggested during the argument on November 3 that a contemporaneous statement by the State Department declaring that the place-of-birth designation “is not recognition” would resolve the concern that Congress was interfering with the President’s power of recognition. Chief Justice Roberts appeared later during the argument to agree with this suggestion. Justice Ginsburg asked Ms. Lewin whether the remainder of the statute, which dealt with Jerusalem as the “capital of Israel,” did not affect the constitutionality of the place-of-birth provision. Ms. Lewin replied that the constitutionality of the place-of-birth provision had to be “determined on its own,” and this provision merely gave “individuals a choice and does not confer formal recognition.”
Justice Breyer asked whether the Court did not have to defer to the statements of “foreign affairs experts in the State Department” who said that the place-of-birth designation of “Israel” encroaches on the President’s core recognition authority. Ms. Lewin replied that it was “a rather extreme position” to have the State Department’s “say-so . . . automatically . . . end the question or any review by any other branch.”
Justice Alito observed that the United States had recognized Israeli sovereignty over Jerusalem by acknowledging the validity of an Israeli birth certificate for Menachem. Justice Kagan asked whether the 2002 law was not “selective” because it only allowed American citizens to say they were born in Israel but did not allow other self-identification for place-of-birth designations. Ms. Lewin replied that the 2002 law “was rectifying a misguided policy of the State Department” which allowed Palestinians born in Tel Aviv or Haifa to remove “Israel” from their passports and list only the city of birth. The law was designed to permit the reverse – designation of “Israel” by those who were born in Jerusalem and wanted it.
Ms. Lewin also noted in her argument that if Congress’ law is implemented, the passports of US citizens born in Jerusalem “would be indistinguishable from all the other passports of individuals born in Tel Aviv or Haifa or anywhere else in Israel. That passport would not, when shown, be making any kind of political statement.” That observation was repeated by Justice Scalia during the argument of Solicitor General Verrilli. Justice Scalia said that if the law is implemented, “All you know is that the person was born in Israel. It could have been anywhere in Israel.”
A decision on the case will be rendered before the end of June 2015.