Op-Ed Columns

Jerusalem Case at Supreme Court May Pit White House Web Site Against President

By Rick Richman –

In a major constitutional case over whether Congress can require the State Department to put “Israel” as the country of birth on the passport of an American citizen born in Jerusalem, it is possible that pivotal evidence may lie in some pictures on the White House website.
On the official website are a series of pictures from Vice President Biden’s trip last year to Israel, where he met in Jerusalem with Prime Minister Netanyahu and other Israelis. In cutlines associated with the pictures the vice president is described as being in “Jerusalem, Israel.”
Menachem Binyamin Zivotofsky v. Hillary Rodham Clinton involves the constitutionality of a statute directing the State Department to record “Israel” as the country of birth on the passport of any American citizen born in Jerusalem who so requests. The procedural issue is whether the case presents a “political question” from which the courts abstain; the substantive issue is whether Congress’s law impermissibly infringes the President’s power to “recognize foreign sovereigns.”
Master Zivotofsky was born in 2002 at Shaare Zedek Hospital in West Jerusalem to American parents (making him an American citizen). Two months later, his mother went to the American embassy at Tel Aviv to apply for his passport, requesting his country of birth be listed as “Israel.” The embassy refused, citing longstanding State Department policy that such passports list only “Jerusalem,” with no country added. American citizens born in Tel Aviv or Haifa have “Israel” designated on their passports; those born in Jerusalem do not.
Would the required designation of “Israel” on Master Zivotofsky’s passport really interfere with the president’s constitutional powers? Does it really present an issue of constitutional proportions, necessitating a Supreme Court decision? The White House acknowledges on its own website that Jerusalem is in Israel – as does the State Department and the CIA on theirs; so what is the problem with Zivotofsky having it on his passport?
In other words, why is the Obama administration making a federal case out of this?
President Bush signed the law in 2002, but issued a “signing statement” refusing to comply with it, alleging it interfered with his authority to conduct foreign affairs and supervise “the unitary executive branch.” In the 2008 presidential campaign, Barack Obama, a former constitutional law professor, criticized Bush for allegedly abusing the Constitution with his frequent signing statements. Mr. Obama asserted a president generally has only two choices: sign a bill or veto it. Now Mr. Obama is defending Bush’s signing statement in the Supreme Court.
This is not an issue of first impression. In 1994, Congress enacted a law directing the State Department to permit American citizens born in Taiwan to have “Taiwan” as their place of birth on their passports, despite official American foreign policy that there is only one China and that Taiwan is not a separate country. Previously, the State Department had refused to do so on grounds it would adversely affect relations with the Chinese communist regime — but the department complied with the law once it was enacted, despite vigorous protests from the communists.
In the present case, Jerusalem is not part of any state other than Israel; it is in fact its capital, and has been since 1950. But the State Department, while following the passport law with respect to Taiwan, refuses to comply with respect to Jerusalem.
One would think the Obama administration might have responded to this case by saying something like this: “Everyone knows Jerusalem is in Israel; check the websites of the White House, State Department and CIA; we are not going to defend a Bush signing statement to avoid acknowledging that someone born in a Jerusalem hospital established in 1902 was born in Israel; and we do not need a Supreme Court decision when we already have the precedent of Taiwan.”
On August 3, 2011, Master Zivotofsky’s lawyers, Nathan Lewin and Alyza Lewin of Lewin & Lewin, participated in a conference call sponsored by an organization called One Jerusalem. During the call, Anne Lieberman of Boker tov, Boulder! (which ran a lengthy post on the case earlier this year) asked Mr. Lewin to describe the protests that supposedly supported the foreign policy concerns of the executive branch. He read from a State Department description of Palestinian statements “across the political spectrum” that “strongly condemned” the U.S. law in 2002:
Lewin: … [State is] relying on the fact that there were protests by public statements at the time the law was enacted and therefore, says the State Department – in what I would call a self-fulfilling prophecy and an invitation to condemnation by the State Department – they say “okay, so now if this thing takes effect we expect everybody is going to condemn it.” Well, that can’t be a reason for overruling a congressional statute – that because we are afraid that enemies of Israel are going to make public statements …
Lieberman: Well, let me see if I get this straight: that means that the government’s position elevates the opinions of the PLO, Fatah and the Palestinian Authority above congressional legislation.
Lewin: Well – that’s right. They say that if you implement the congressional legislation we are going to get protests, like we did for the enactment of the statute, so therefore you can’t implement the legislation, because the President or the State Department says we’re going have this harm to foreign policy, that enemies of Israel are going to condemn the fact that we’ve changed the policy. But you’re right – essentially what that does is elevate concern about [the Palestinian] protest over congressional correction of a mistake.
Lieberman: Incredible.
Master Zivotofsky’s brief was filed on July 29. The administration’s brief is due September 23, and the case will be argued in November.

Rick Richman is editor of the web blog Jewish Current Issues.

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