By Alyza D. Lewin
What a week it was for Jerusalem. The President of the United States arrived, transformed the King David Hotel into his (and his entourage’s) home away from home, and then began a series of meetings and visits – to the official residences of President Shimon Peres and Prime Minister Bibi Netanyahu, to the Israel Museum and the Shrine of the Book, to the Jerusalem Convention Center, to Mount Herzl, Yad Vashem, and to the grave of former Prime Minister Yitzchak Rabin. All of these sites are in Jerusalem. But are they in Israel?
According to the U.S. State Department they are not. The State Department refuses to recognize Jerusalem as being in Israel and says that the city’s status must be determined in future peace negotiations.
My father, Nathan Lewin, and I were in court the day before President Obama traveled to the Middle East on a case that concerns this very issue. The case is Zivotofsky v. Secretary of State, and it involves 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.
The general rule for American citizens born abroad is that their U.S. passports list their country of birth as their place of birth. So American citizens born in Paris, have “France” listed as their place of birth on their passports. Citizens born in Rome list “Italy.” Those born in Tel Aviv or Haifa list “Israel.” But because the U.S. does not recognize Jerusalem as being in Israel, the State Department lists the city – “Jerusalem” – instead of the country as the place of birth for Jerusalem-born American citizens.
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 the U.S. passports and birth certificates of those 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 Binyamin Zivotofsky, was born in October 2002 in Shaare Zedek hospital (just a few weeks after the law was enacted). His parents invoked the new statute and asked that his place of birth be listed as “Israel.” The State Department refused because it claimed that Congress’ law was unconstitutional, and it listed his place of birth as “Jerusalem.” Zivotofsky then became our firm’s youngest pro bono client when he (and his parents) sued in September 2003 to compel the State Department to comply with the law.
On March 19 we were before the U.S. Court of Appeals for the District of Columbia Circuit for the third time in the case’s 10-year history. Last year, following our written briefs and oral argument, the U.S. Supreme Court agreed with us, by an 8-1 vote, that the D.C. Circuit was obliged to rule on whether Congress’ law is valid. It rejected the State Department’s argument that our lawsuit raised a “political question” that the courts should not address.
The government’s claim that the law should be nullified can be summed up as follows: (a) listing “Israel” as the place of birth on the passport of a Jerusalem-born American citizen (as required by the statute) is tantamount to the United States formally recognizing Israel’s 2 sovereignty over Jerusalem; (b) “recognizing foreign sovereigns” is a power that belongs exclusively to the President of the United States; (c) therefore the statute is unconstitutional because Congress’ law trenched on a power that belongs only to the President.
In our briefs and at oral argument, my father and I provided numerous responses to the government’s position.
(1) There is no “recognition power.” The authority to “recognize foreign sovereigns” is not specified anywhere in the Constitution. Article II, Section 3 of the Constitution (the “Recognition Clause”) states that the President “shall receive Ambassadors and other public Ministers.” The government argues that this language granted the President the exclusive right to “recognize foreign sovereigns.” But recent historical research has established that the instruction to “receive Ambassadors” described a ceremonial duty, assigned to the President as a practical matter. It was not intended by the Founding Fathers to grant the President any foreign policy “power” at all.
(2) If there is a “recognition power,” it is a responsibility shared by the Congress and the President. A review of American history and our government’s recognition of foreign sovereigns demonstrates that from the creation of this country through the late Nineteenth Century, Congress and the President were viewed as equal partners when it came to recognizing foreign sovereigns. Presidents such as James Monroe, Andrew Jackson, Zachary Taylor and Abraham Lincoln believed that they were not free, without Congressional approval, to accord official recognition to new foreign governments. So the “power” to recognize foreign sovereigns is a power shared by the Legislative and Executive branches – not a power vested exclusively in the President.
(3) The Court does not need to determine which branch of government (Congress or the President) has the authority to recognize foreign sovereigns because designation of place of birth on a passport is not tantamount to formal recognition of sovereignty. The State Department regularly lists entities that are not sovereign countries as “place of birth” on U.S. passports. For example, American citizens born in the “West Bank” or “Gaza Strip” may choose to have those designations on their passports. American citizens born in Israel before 1948 may even choose to have their birthplace recorded as “Palestine,” clearly not a “sovereign country” at any time. In 1994, Congress passed a law directing that “Taiwan” be recorded, on request, as the place of birth of American citizens born in Taiwan. But the United States does not recognize Taiwan’s sovereignty, choosing instead to view Taiwan, for foreign policy reasons, as part of the communist Republic of China. The State Department nonetheless accepted Congress’ judgment, allowed Taiwan to be listed as a place of birth as directed by Congress’ 1994 law, and issued the following statement:
Although Taiwan may be listed as a place of birth in passports, the United States does not recognize Taiwan as a foreign state. The U.S. recognizes the government of the People’s Republic of China as the sole legal government of China, and it acknowledges the Chinese position that there is only one China and Taiwan is part of China. 3
The Taiwan example demonstrates that merely listing an entity as “place of birth” on a passport does not equal a formal recognition of sovereignty and that a contemporaneous public clarification removes any public uncertainty.
(4) The law passed by Congress repeals a State Department policy that is invidiously discriminatory. Most people do not know that the State Department permits American citizens who wish to remove any reference to “Israel” from their passports to do so. For example, American citizens born in Tel Aviv or in Haifa may choose to list their place of birth as “Tel Aviv” or “Haifa” instead of “Israel” if they are offended by having “Israel” listed on their passports. The U.S. also permits “West Bank,” “Gaza Strip,” and “Palestine” (for those born before 1948) to be listed as “place of birth” on a U.S. passport. The State Department refuses to be equally accommodating to individual convictions, however, when it prohibits American citizens born in Jerusalem to list “Israel” as their place of birth.
(5) There is no evidence that listing “Israel” as the place of birth for Jerusalem-born American citizens will cause upheaval and unrest in the Middle East. At oral argument, the government stressed that if the State Department is compelled to list “Israel” on the passports of Jerusalem-born Americans, it will cause an uproar in the international community. But not one Palestinian or Arab organization filed a friend-of-the-court brief supporting the government’s position challenging the constitutionality of Congress’ law in either the Supreme Court or in the D.C. Circuit Court of Appeals. The Zivotofsky case has garnered international attention – particularly when it was before the U.S. Supreme Court. If the international community is truly concerned about the outcome wouldn’t at least one organization have filed an amicus brief?
(6) Congress has the authority to enact passport legislation. The law enacted by Congress is a straightforward exercise of Congress’ authority over the form and content of United States passports. The “place of birth” designation was added to U.S. passports as a means of identifying the passport holder, just as individuals used to be identified on passports by their height, weight, and color of hair and eyes, and are now identified by date of birth and photograph. The place of birth on a passport does not convey any political or diplomatic message.
(7) If the State Department were to list “Israel” as the place of birth for Jerusalem-born citizens, the passports of the Jerusalem-born citizens would be indistinguishable from the passports of citizens born in Haifa or Tel Aviv. Since passports would list only the country “Israel” it would not be possible to tell from a passport whether the bearer was born in Jerusalem or elsewhere in Israel.
There is a huge “separation-of-powers” constitutional issue that looms over the case and emerged in the arguments in both the Supreme Court and in the Court of Appeals: If there is a square conflict on a foreign-policy issue between the President and the Congress, who prevails? Our position is that, under the constitutional standard that the Supreme Court has been applying in recent rulings, the President may not act without express or implied Congressional approval, and Congress wins if there is a direct conflict. But we maintain that the courts need not resolve 4
this major constitutional question to decide the Zivotofsky case on any of the grounds outlined above.
In its brief, the State Department claimed that it would “critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process” if there were “any unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel.”
The government’s position is belied by President Obama’s recent visit to the Middle East. The White House chose to publicize the President’s visit on its website and in press releases as “The President’s trip to Israel, the West Bank, and Jordan.” The principal stops in Israel on the President’s itinerary were his two days of visits to places in Jerusalem. It’s hard to imagine any more “symbolic and concrete” official recognition of Jerusalem as being in Israel than describing the President’s trip to prominent Jerusalem sites as a “trip to Israel.” After all, where was President Obama on these two days when the White House represented that he was in “Israel?” He was in Jerusalem.
Alyza D. Lewin is a partner at Lewin & Lewin, LLP in Washington, D.C. and is currently President of the American Association of Jewish Lawyers and Jurists. She can be reached at email@example.com.