But the Zivotofskys’ request to change Menachem’s passport to say his birthplace is “Israel” rather than simply “Jerusalem” has met firm resistance from the State Department.
“The status of Jerusalem is one of the most sensitive and long-standing disputes in the Arab-Israeli conflict,” the government said in its brief to the court. It is not one in which the United States has been willing to choose sides.
Over the objection of the Obama administration, the Supreme Court last week agreed to review the long-running dispute over Menachem’s passport. The slim petition filed by veteran Supreme Court practitioner Nathan Lewin manages to pack in a trove of constitutional questions for argument next fall.
It raises a broad separation of powers question about Congress’ power to influence the nation’s foreign policy. It broaches the question of when courts may get involved in settling such disputes between the legislative and executive branches. And it even touches on the unsettled question of presidential “signing statements,” in which the president signs a bill while declaring he will ignore parts he considers unconstitutional.
U.S. recognition of Jerusalem is a perennial question for American politicians, but one that American diplomats consider best left for negotiations between Israeli and Palestinian officials. Israel has had control of the once-divided city since the 1967 war, and considers it the capital; the United States maintains its embassy in Tel Aviv.
In 2002, Congress passed a provision in a broader foreign relations act that said Americans born in Jerusalem could request that official documents recognize their birthplace as “Israel.”
President George W. Bush signed the law, but said in a signing statement that U.S. policy regarding Jerusalem had not changed. The provision, he said, would “impermissibly interfere with the president’s constitutional authority to formulate the position of the United States, speak for the nation in international affairs and determine the terms on which recognition is given to foreign states.”
Not long after, Ari and Naomi Zivotofsky, Americans who moved to Israel in 2000, had a baby boy in a hospital in West Jerusalem. Naomi Zivotofsky’s request that her son’s Consular Report of Birth Abroad and his passport list the country of his birth as Israel were denied.
The Zivotofskys sued, but a district judge in Washington dismissed the case, saying it “raises a quintessential political question which is not justiciable by the courts.”
A panel of the U.S. Court of Appeals for the D.C. Circuit agreed. But Senior Judge Harry T. Edwards disagreed, saying the court should have moved on to hear the merits of the arguments. The case, he said, “raises an extraordinarily important question” that “calls into question the role of a federal court in our system of justice.”
(Edwards’ bottom line, though, is of little help to the family: he concluded that while the court should have considered the case, he would have found the 2002 congressional language unconstitutional because it “impermissibly intrudes on the president’s exclusive power to recognize foreign sovereigns.”)
Lewin is encouraged that the Supreme Court asked for a briefing on both questions — whether the courts should hear the case and whether Congress’ actions were unconstitutional.
He believes the D.C. Circuit Court got it wrong. He said the Zivotofskys are not asking the courts to decide a matter of foreign policy, but simply to enforce a law that Congress has passed and the president has signed.
The circuit court’s refusal to even hear the merits of the suit is an “abdication of the court’s duty to determine the lawfulness of governmental conduct that affects the rights of individual citizens,” Lewin said in his brief.
Ari Zivotofsky, a neuroscience researcher at an Israeli university, said he and his wife were aware they were testing the law with their request, “but I can’t say I expected it would end up at the Supreme Court.”
But he said it is important “really for the same reason we moved here — to live in the state of Israel.” He added: “Jews for thousands of years prayed daily to be able to go to Jerusalem.”
The case is M.B.Z. v. Clinton and will be heard in the court’s next term.
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