Menachem Zivotofsky was born in Jerusalem just three weeks after the law passed half a world away in Washington. Though he is an American citizen, he still lives in the city, busily preparing for his Bar Mitzvah. According to the family, the Zivotofskys live in Israel; yet for twelve years, his country of birth, along with that of other American citizens born in Jerusalem, has vexed the United States. The debate over where the Zivotofskys live reflects a decades-old question, one of the most pervasive gray areas in our country’s diplomatic history. And so, by his first birthday, Menachem was the plaintiff in a Supreme Court case, one whose repercussions have prompted our government to call into question and reevaluate its way of handling international affairs.

For American citizens born outside the United States, U.S. passports record the country in which they were born. But given the territorial dispute over the city, those born in Jerusalem present an unusual exception to the rule. Because of its legal uncertainty, “Jerusalem” is listed on U.S. passports instead of a country. Rather than recognize any country’s control of Jerusalem, the United States has decided to let Israel and Palestine settle the dispute locally; the U.S. has placed its faith in peaceful regional negotiations to determine who controls Jerusalem.  Every administration since 1948 has followed the same precedent; no president, from Truman to Obama, has officially recognized any nation’s sovereignty over Jerusalem.

Yet the American Legislature has challenged this status quo. In 2002, Congress passed a law granting Americans born in Jerusalem the right to list the “place of birth” on their passports as “Israel.” Although President George W. Bush signed the law, he issued a “signing statement” that maintained the Executive Branch’s neutrality on the issue of whether Jerusalem belongs to Israel or Palestine. President Bush declared in 2002 that the law “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs.” He further warned Congress that the State Department would not enforce the change in passport policy.

In keeping with its official policy of neutrality towards control of Jerusalem, the State Department rejected Menachem’s parents’ request to record “Israel”—not “Jerusalem”—as their son’s place of birth. While this act seems inconsequential by itself, it has generated extensive media attention because of the potential ramifications: allowing the Zivotofskys to change Menachem’s place of birth to Israel could alter America’s official stance on a city that carries immense political and religious significance for Christianity, Judaism, and Islam. More directly, the case forces a reassessment of who holds ultimate control over American foreign policy: Congress, or the president and the State Department.

The outcome of the case thus carries far-reaching legal and political consequences, attracting the interest of various legal activists. Lobbying organizations like the Jewish Anti-Defamation League and Arab-American Anti-Discrimination Committee have advanced their arguments through amici curiae, which offer relevant information for the case, but have not been solicited by the Supreme Court. Congress, the State Department, and religious advocacy groups have weighed in. Even Texas has come out strongly in favor of the congressional position, emphasizing the importance of states’ rights to check executive power.

Paul Kujawsky, who represented the Endowment for Middle East Truth, has been working on this case since 1995. A lawyer and self-declared Zionist, Kujawsky sees Zivotofsky v. Kerry’s potential to provide new insights on the separation of powers enshrined under the Constitution. As Kujawsky says, the case presents the question as a struggle between the Legislative and Executive Branches: in his own words, the core question at stake is “when Congress and the president argue over foreign policy, who wins?”

Yolanda Rondon and Abed Ayoub, staff attorneys for the American-Arab Anti-Discrimination Committee (ADC), understand the Executive as the sole branch of government with the power to recognize nations. “Foreign policy has always been geared to the president under the Constitution,” Rondon asserted in an interview with The Politic. The president, as Rondon said, acts as the “Head of State and Commander-in-Chief of the [Armed Forces]. He is the face of the nation.” Congress, Rondon believes, has a more limited role in foreign affairs. According to Rondon, the legislature should not contradict presidential policy for the sake of the nation’s international credibility.

To support her claim that the Executive Branch holds exclusive power to recognize foreign nations, Rondon points to the “receive ambassadors” clause in Article II of the Constitution, which states that the president “shall receive Ambassadors and other public Ministers.” As Rondon argues in the ADC’s amicus brief, “these powers make the president the nation’s principal organ of foreign affairs.” Because the president can receive diplomats, he can also arguably recognize foreign nations. Receipt of ambassadors would implicitly indicate a recognition of the ambassador’s country.

The state of Texas disagrees with Rondon. In its amicus brief, submitted by Solicitor General Jonathan Mitchell, Texas argues that if such a “recognition power” exists, it does not belong exclusively to the president. Mitchell cites a lack of historical evidence to support exclusive presidential recognition power. “Even if one were to accept the broadest possible construction of the president’s duty to ‘receive Ambassadors and other public Ministers,’” writes Mitchell, “that would show at most that the president’s power over Zivotofsky’s passport is concurrent with Congress—not exclusive of Congress.” Mitchell points instead to the “commerce clause” in Article I of the Constitution, which gives Congress authority “to regulate commerce with foreign nations.” In Mitchell’s eyes, such commerce includes the power to regulate passports needed for international travel.

Constitutional scholars have also rejected the Executive Branch’s exclusive claim to recognition power. Dr. Louis Fisher, who researched constitutional separation of powers for four decades at the Library of Congress, dismissed the argument advanced by the ADC under the “receive ambassadors” clause. As Fisher clarified in an interview with The Politic, the branches of our government not only have the powers enumerated in the Constitution, but others that can be reasonably implied. “What you have is a collision between two implied recognition powers for the president and for Congress,” Fisher explained. “And all implied powers are subject to limits.”

Fisher felt that limit was rather clear when it came to foreign affairs. The president’s possession of exclusive power would bring about a system of government that the Framers had rejected: namely, the British model of government that concentrated all foreign policy into the hands of one executive, the King. “All you have to do is read the Constitution,” asserted Fisher, “to know that the external powers, formerly in the King, were placed into Congress.” Fisher echoed Texas Solicitor General Mitchell’s sentiments that Congress held an implied power over foreign commerce, and thereby passport policy.

Nevertheless, it remains unclear which implied power supersedes the other. For Sam Kleiner JD ’15, a fellow at the Yale Law School’s Information Society Project, the answer lies in precedent. Historical practice dating back two centuries establishes the president as the “sole voice to recognize countries from an international point of view,” Kleiner argues. It’s through this historical practice that the president has “far-reaching foreign powers.”

Despite this sustained belief that the president controls foreign policy, there’s little to no constitutional support to defend such a practice. For Kujawsky, principle trumps practice. “A practice can’t overcome the Constitution, even when ingrained,” he asserts. Precedent guides the Supreme Court’s decisions; however. “If [precedent] is clearly contrary to the Constitution,” he imagined that the Court would finally make a definitive decision to uphold or break with precedent.

So why has this particular conflict between presidential and congressional powers not garnered substantial attention until now? Kujawsky maintains Congress’ authority to legislate in foreign affairs, but he points to “congressional acquiescence” of presidential leadership. Since it usually agrees with the State Department on most foreign policy issues, Congress does not often protest such issues on constitutional grounds; rather, Congress essentially ratifies what the president does. When Congress disagrees with the Executive, however, as it does in Zivotofsky, Kujawsky sides with the Legislative Branch over the Executive one. As a result, he expressed grave concern over President Bush’s signing statement in 2002. “Congress makes the laws. The president executes the laws,” he said. “I believe that signing the law and raising concern [about it] at the same time is an unconstitutional action.” In Kujawsky’s mind, it seems indelibly clear that the law is what Congress passes and what the president signs—not what he feels about it. Decisions of constitutionality are exclusively reserved for the Supreme Court.

But Zivotofsky v. Kerry’s outcome does not necessarily hinge on how the Court interprets the separation of powers. Sam Freeman, attorney for the Anti-Defamation League—an international Jewish advocacy group—does not believe a change to the constitutional status quo is necessary in this case. Freeman does not challenge the Executive Branch’s ability to conduct foreign policy. Rather, he argues the nature of the law passed by Congress only authorizes a simple, ministerial act; it does not “usurp” any function exclusively belonging to the Executive. “A passport doesn’t suggest anything [about] the foreign relationship between two countries,” insists Freeman. The place of birth designation is “ministerial” in that it only provides an additional means for citizens to express their opinion and declare their identity.

For Freeman, verbiage of a passport does not constitute a pronouncement of foreign policy. The provision arguably authorizes American citizens only to identify their place of birth on their passport and merely “record [this] place of birth as Israel.” Freeman notes that any political implications surrounding the case are independent and altogether unrelated. He denies the State Department’s warning that the passport change would be interpreted as an official act and could consequently undermine peace negotiations in the Middle East. For the Palestinian Authority to perceive the law as recognition of Israel’s sovereignty “would be a misinterpretation,” maintains Freeman. “There’s no change in foreign policy accommodating this law.”

Attorneys Rondon and Ayoub vehemently disagree. It is not appropriate to express one’s political beliefs—regardless of a consensus of the American people, indirectly represented by congressional approval of the law—on an official document like a passport; nor would it be possible to approve the law in an apolitical manner. In their view, such actions would allow opinions of individual citizens to abuse and distort existing international political realities, with or without a consensus of the majority of Americans. If enacted, citizens themselves are essentially regulating foreign policy, warns Ayoub. In that case, the law would grant regulatory powers to private citizens.

Moreover, Rondon called attention to the title of Section 214(d) the law itself: “United States Policy With Respect to Jerusalem as the Capital of Israel.” This title, she argued, clearly aims to make a political statement. Section 214(d) is the final of four provisions under the larger law. The first three implicitly recognize the city as part of Israel, going so far as to request the relocation of the U.S. Embassy from Tel Aviv to Jerusalem. This provision, by extension, carries an inherent political nature and consequently usurps the Executive Branch’s authority to recognize other nations. While Sam Freeman and the Anti-Defamation League sought to separate the case from politics, Rondon and the Arab-American Anti-Defamation Committee see such a maneuver as impossible, considering how closely intertwined the case is with the sensitive status of Jerusalem.

Kujawsky believes such residual, politicized effects are miniscule. He points out that the change makes it impossible to tell who is from Israel and who is from Jerusalem; the law would enable citizens to choose either “Jerusalem” or “Israel” as their place of birth, but not both. However, Kujawsky doesn’t entirely reject the law’s political significance. He asserts that “It will be beneficial to have American recognition of Jerusalem belonging to Israel.” “West Jerusalem has been a part of Israel long before 1948,” he adds. “Any suggestion that’s not true is mischievous at best.” Kujawsky evokes an intense Zionist sentiment that seems somewhat out of place under today’s political context emphasizing reconciliation. For him, the new law represents a kind of defensive move; a failure to act, he claims, would “encourage Arabs and Muslims to believe that Israel can be forced out of the Holy City. It encourages their worst impulses not to recognize Israel at all.”

At the crux of this case lies a dispute over the role of passports. The idea that a passport expresses an individual’s identity, but cannot serve as a medium to express a political act of recognition, seems contradictory. The State Department has claimed that the change to passports would be interpreted as an official act of recognizing Israeli sovereignty over Jerusalem. However, Nathan Lewin, attorney for the Zivotofsky family, rejects its warning. He believes the Supreme Court should look to the 1994 decision vis-à-vis Taiwan as precedent.

Mainland Chinese officials felt so emphatically that Taiwan should not be independently recognized in any official document that the American government was pressured to refuse to issue visas on passports with “Taiwan” as the listed place of birth. However, many American citizens born in Taiwan who opposed the communist Chinese government did not want to identify themselves as being born in China. As a result, Congress passed a law in 1994 ordering the State Department to accommodate requests of those who wanted their passports to record their place of birth as “Taiwan.” Despite China’s vociferous opposition, the State Department instructed its officers to substitute “Taiwan” for the People’s Republic of China upon request. State Department officials made clear that this was not a change in America’s official policy regarding Taiwan. They announced that “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.”

Whereas Lewin argues that the Taiwan case is a valid precedent for the current Section 214(d) issue, Rondon believes such an analysis is flawed. “The Taiwan statute left it to the Executive to decide whether Taiwan was a separate country or part of China,” said Rondon. She added that the State Department complied “only after determining that doing so was consistent with United States policy that Taiwan is a part of China.” Rondon maintains a distinction between this example and Zivotofsky v. Kerry because Congress itself did not decide to instigate a change Taiwan’s in official status according to the United States. Rather, the Taiwan decision remained consistent with U.S. foreign policy previously expressed by the State Department.

The ADC also challenges the equity of Section 214(d). The Equal Protection Clause under the 14th Amendment explicitly prohibits the federal government from discriminating between individuals or groups. Rondon and Ayoub contend that the provision violates the Equal Protection Clause by allowing Jerusalem-born individuals to record “Israel,” but not “Palestine” on their passports. Unsurprisingly, representatives from various Jewish advocacy groups unanimously dismissed their reasoning. “There is no sovereign state of Palestine,” said David Schoen, counsel for the Zionist Organization of America. Kujawsky echoed Schoen’s sentiments: “It’s foolish to claim that [Jerusalem-born Palestinians] were born in Palestine, because there is no such country”. Freeman acknowledged the “Palestine” option as an interesting hypothetical, but his response ultimately fell along similar lines. All three maintained that a choice does exist for all American citizens—if they don’t want “Israel” recorded on their passports, they can certainly maintain the “Jerusalem” designation.

This collective dismissal of Palestine as a legitimate entity is alarming. Indeed, an argument based on denying Palestinian statehood due to a failure to recognize it on an individual level is not an effective rebuttal, especially when it comes from the same people who do not view passports as an act of personalized political recognition. Palestinian Americans are effectively unable to choose Palestine as their country of birth; Rondon and Ayoub claim that Congress knew that many citizens born in Jerusalem, particularly Palestinian Americans, would likely not want to record Israel as their place of birth. They write: “Section 214(d) was enacted with the intent to benefit Israeli American citizens at the expense of Palestinian American citizens, and effectively excludes them.”

What changes would make the law seem more equitable? Justice Kennedy has suggested an accompanying statement to clarify that the passport change comes at the holder’s request; such an announcement would stress the designation as neither an acknowledgment nor a declaration of Israel’s claim to Jerusalem. But Kennedy’s proposal skirts political realities and the entire separation of powers issue. Should the Supreme Court side with Congress and Zivotofsky, international players would invariably interpret the change—even with such a clarifying postscript—as an official act of foreign policy at least tacitly confirming Israeli control of Jerusalem. Ayoub calls on Congress to attach equal importance to both Israel and Palestine. If the passport is to be truly independent of political recognition, he indicates, then citizens must also have the option to pick “Palestine” as their place of birth. That choice, alongside the existing Jerusalem and Israel categories, would make Congress’ law more equitable.

The intense debate surrounding the amicus briefs reflects the political volatility of this case. For the thousands of American citizens born in Jerusalem, the place of birth on their passport constitutes a complex political crisis. On November 3, Solicitor General Donald Verrilli argued before the Supreme Court that the status of Jerusalem is “the most vexing and volatile diplomatic issue this nation has faced.” Other countries, he warned, “scrutinize every word that comes out of the U.S. government.” Thanks to one boy, who is likely more concerned with his upcoming Bar Mitzvah than geopolitics, the Supreme Court’s decision could fundamentally change how we both govern ourselves, and interact with the rest of the world.

 

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