The Supreme Court is Debating Whether Jerusalem Can Be ‘in Israel’ on US Passports

At the heart of this closely watched case are both the unsolved status of one of the most viciously contested cities on earth, and serious legal questions about the US congress' authority to overrule the president on matters of foreign policy.

by Alice Speri
Nov 3 2014, 8:57pm

Photo via Flickr

The US Supreme Court began hearing arguments today on whether US citizens born in Jerusalem can list "Jerusalem, Israel" as a birthplace in their passports.

At the heart of this issue of bureaucratic record-keeping is both the unsolved status of one of the most viciously contested cities on earth, and serious legal questions about the US Congress' authority to overrule the president on matters of foreign policy.

The legal case — Zivotofsky v. Kerry — was brought by the American parents of 12-year-old Menachem Zivotofsky against the US Department of State, which refused to list Jerusalem, Israel as the boy's birthplace.

That's because the US — as the rest of the international community — does not recognize Jerusalem as being in Israel but views it instead as disputed territory. The city's fate has been contested since before the state of Israel was even established, in 1948, and while Israel unilaterally declared Jerusalem as its capital in 1950, the US has never agreed to list any country for citizens born in Jerusalem, which remains printed on US passports as a stateless city.

Palestinian-Americans born in Gaza, the West Bank, and Jerusalem also only have their cities of birth listed on their US passports.

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In 1967, Israel occupied Palestinian East Jerusalem, as well as the West Bank, the Gaza Strip, and parts of the Golan Heights, which remain under the control of its military. In 1980, Israel once again proclaimed Jerusalem "complete and united," or including occupied East Jerusalem, the state's capital — a declaration that prompted several countries, including the US, to reject the city as Israeli capital and move their embassies to Tel Aviv.

Then in 2002, just weeks before Menachem was born to Jewish American parents who had immigrated to Israel, and without any shift having taken place in official US policy on the issue, Congress passed regulation as part of the Foreign Relations Authorization Act, effectively overruling the State Department's practice not to list any state after Jerusalem. Then-president George W. Bush signed the act but warned he would not comply with section 214 of the law — the bit concerning Jerusalem — because it "impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch," he wrote.

Or, in other words, the president maintained that the authority to settle the matter rested with him, not Congress, and that US official policy on Jerusalem had not changed.

But when Menachem was born, his parents requested to list Israel as his birthplace, per the regulation passed by Congress. The State Department refused, and they sued.

The Zivotofskys could not be reached for comment, but Ari Zivotofsky, the boy's father, told CNN: "What we request is just exactly what the lawsuit says, implement the law and write in the passport that my son was born in Israel."

"We're very proud of the fact that he was born in Israel and that we live in Israel and it's the modern state of Israel," he said.

The lawsuit made it through a number of courts that declined to rule on a "political question" until the case landed with the Supreme Court.

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The Zivotofskys' lawyers, Nathan and Alyza Lewin, maintain that the family's request is modest and a personal matter. They say the boy's right to have Israel listed on his passport was granted to him by Congress and that this is a matter of identification practices, not foreign policy. They did not respond to VICE News' requests for comment.

The government's position is that section 214 of the Foreign Relations Authorization Act is unconstitutional because it violates the separation of legislative and executive powers sanctioned by the Constitution. They also maintain that listing Jerusalem as being in Israel is both a violation of US foreign policy and detrimental to peace negotiations in the region.

The Supreme Court is expected to deliberate on those questions alone, but in an amicus brief it filed with the court, the American-Arab Anti-Discrimination Committee (ADC) supported the government's position but further argued that at stake is also the unconstitutional discrimination against Palestinian-Americans, who have no right to list "Jerusalem, Palestine" as birthplace on their US passports.

"This is inherently discriminatory against Palestinian-Americans because they don't have the option to request the Department of State to put Palestine and the capital as Jerusalem," Yolanda Rondon, a staff attorney at the ADC and co-counsel on the brief, told VICE News. "Basically what's at stake is the United States recognizing Jerusalem as under Israel's control and as part of Israel, when Jerusalem of course belongs to Palestine, and when it has been US policy to remain neutral."

The case, Rondon added, is likely to have massive repercussions in the region at a time of heightened tensions, and it signals Congress' attempt to increasingly intervene in matters of foreign policy legally under the president's authority.

"Hopefully the importance of this case is on the minds of the justices as foreign policy and peace negotiations in the Middle East will be ultimately impacted by this decision," she said. "This is more than mere identification of someone's birth, this is part of a discriminatory, biased agenda by Congress pushing forward anti-Palestine, pro-Israeli legislation. We believe that Congress is trying to circumvent US foreign policy. They are directly in conflict with US foreign policy and these actions are motivated by a pro-Israeli view."

The status of Jerusalem has been at the heart of the conflict for decades, with Israel unwilling to relinquish control over the city and the Palestinians claiming its status as capital as a requirement to the establishment of a sustainable Palestinian state, and an essential element to any peace agreement. Tensions in the city have exacerbated over the last several months, as Jewish Israeli settlers have pushed into Palestinian neighborhoods in East Jerusalem.

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Violence has erupted regularly over last several weeks, and a dispute over Palestinians access to the al-Aqsa mosque compound in Jerusalem's old city, has led to weekly protests. US officials' condemnation, last month, of Israeli Prime Minister Benjamin Netanyahu's announcement that he would fast track construction of 1,000 new homes for Jews in East Jerusalem have further soured relations between the US and Israel.

In Washington, far from being a matter of bureaucracy alone, Jerusalem's status is deeply political and as the hearings went underway, the Supreme Court appeared divided along political lines, Reuters reported.

As has often happened in close decisions, Justice Anthony Kennedy is likely to cast the decisive vote. On Monday, he reportedly expressed support for the government's position, but also considered that a compromise solution could be reached allowing to list Jerusalem, Israel on passports but adding disclaimers that this was not meant to indicate US recognition for Israel's sovereignty over the city.

A ruling in the case is expected in June.

Follow Alice Speri on Twitter:@alicesperi

Photo via Flickr