Lewin Files Brief in Zivotovsky Case vs. Sec. Clinton

On Friday, July 29, the law firm of Lewin & Lewin, LLP filed its brief on behalf of the petitioner in the case of Menachem Zivotofsky v. Secretary of State Clinton (No. 10-699) which will be heard by the U.S. Supreme Court in November 2011. At issue in the case is the right of a Jerusalem-born American citizen to self identify as born in “Israel” on his or her U.S. passport and birth certificate.

In 2002, Congress passed a law that directed the Secretary of State to record the birthplace of American citizens born in Jerusalem as “Israel” on these documents for American citizens who so request.  Since the bill’s enactment, the Executive branch has refused to enforce the law, claiming that to do so would infringe on the President’s authority to “recognize foreign sovereigns.”

Menachem Zivotofsky was born in Jerusalem soon after the law was passed.  His parents requested that the place of birth on his U.S. passport and Consular Report of Birth Abroad be listed as “Israel.”  The State Department refused the request and instead listed “Jerusalem” as the place of birth.  Nathan Lewin and Alyza D. Lewin of Lewin & Lewin, LLP, agreed to represent the Zivotofskys and have litigated the case pro bono for eight years.

The Zivotofsky brief is available at http://www.lewinlewin.com/files/Zivotofsky_v._Clinton_-_No._10-699_-_Brief_for_the_Petitioner.pdf

The brief makes the following arguments:

1. Recent historical research has established that the “recognition of foreign sovereigns” was not a “power” given to the President by the Founding Fathers. The Constitution only gives the President the duty to “receive ambassadors and other public ministers,” and this was intended to be a ceremonial task assigned to the President.

2. If there is an exclusive power the President has to “recognize foreign sovereigns,” that power does not include determining whether a particular city or territory is within the borders of the “foreign sovereign.” In two Supreme Court cases concerning such a question, the Court said it would rely on Congress’ determination as well as the President’s.

3. Authority to determine American foreign policy is shared by the Congress and the President. The President has the most sweeping authority when he is acting under Congress’ delegation to him of discretion (which is frequent) and he may act unilaterally even when Congress is silent. The President’s authority in foreign relations is at “its lowest ebb” when it conflicts with an explicit Congressional statute. In this case, Congress has acted, on a non-emergency subject, to reverse an unwise State Department policy. In this situation, Congress’ will controls.

4. The passport’s designation of a place of birth is not limited to “foreign sovereigns” because the State Department permits “West Bank,” “Gaza Strip,” and “Palestine” to be entered even though these are not recognized countries.

5. The only possible harm to America’s foreign relations claimed by the State Department is that Palestinians and the Arab world may misunderstand the meaning of allowing “Israel” to be recorded on a passport and think that the United States has thereby formally changed its policy regarding jurisdiction over Jerusalem. Such possible misperception is not a sufficient reason to overrule Congress’ enacted law.

6. In 1994, Congress enacted a similar law regarding Taiwan, allowing it to be recorded on American passports even though the President had in 1979 recognized the People’s Republic of China as having jurisdiction over Taiwan. The State Department accepted the change and it has had no harmful effect on America’s foreign policy.

7. Many Executive Branch Departments issue public statements identifying “Jerusalem, Israel,” and these public statements have had no harmful effect on American foreign policy. In addition, passports, citizenship certificates, and birth certificates have, on occasion, recorded Israel as the place of birth of citizens born in Jerusalem (assertedly in error). These instances have not harmed American foreign policy. Implementation of this law — adding approximately 50,000 passports saying “Israel” to the 100,000 that already say “Israel” (because their holders were born in Tel Aviv, Haifa, or other cities in Israel) — will have a negligible or trivial impact on U.S. foreign policy.

8. The State Department policy overruled by Congress’ law discriminated against supporters of Israel — largely Jews — because opponents of Israelare permitted to eradicate “Israel” from their passports and designate a city as their place of birth if they object to recording “Israel,” while supporters of Israel are not given a similar accommodation if they were born in Jerusalem.

9. The President was not constitutionally authorized to ignore the law by signing it and issuing a “Signing Statement” declaring that he intended to disobey it on the ground that it was unconstitutional. The only procedure authorized by the Constitution is the veto process that President George W. Bush chose not to use. Refusal to abide by one provision in a law he has signed is equivalent to a “line-item veto” which the Supreme Court has found unconstitutional.

Nathan Lewin, the Zivotofsky’s lead attorney, said: “Our brief presents compelling reasons why the State Department may not overrule and ignore a duly enacted and signed law passed by the Congress. A favorable ruling by the Supreme Court will not only vindicate the strong feelings of Jerusalem-born American citizens who are proud to have been born in Israel, but will also define the limits of Presidential authority regarding subjects that peripherally affect foreign relations. I hope that the Supreme Court will end this case, after eight years of litigation, with a decision that will affirm the authority of Congress and support the right of patriotic American citizens to express the wishes of many who see Jerusalem as part of Israel.”

{Noam Amdurski-Matzav.com Newscenter}