A law enabling US citizens born in Jerusalem to list Israel as their birthplace on US passports is unconstitutional because it infringes on the president's executive power, the US Court of Appeals for the District of Columbia Circuit ruled on Tuesday (July 23, 2013).
In 2003, Ari and Naomi Zivotofsky, the parents of Jerusalem-born Menachem Zivotofsky, filed a lawsuit demanding that the US State Department enforce the law passed by Congress in 2002 so that Menachem could list "Jerusalem, Israel" as the birthplace on his passport. Last year, the US Supreme Court ruled 8-1 that the appeals court needed to rule on the enforcement issue.
But Judge Karen Henderson of the appeals court's three-judge panel wrote on Tuesday that the president—not the legislative branch—"exclusively holds the power to determine whether to recognize a foreign sovereign." The US has not officially recognized Israel's sovereignty over Jerusalem since the Jewish state gained independence in 1948. Israel is the only nation on earth in which the United States has instituted this policy, directed by longstanding US State Department policy. In effect it is saying that, despite what Israel declares, it—the United States—will decide the location of the capital of Israel, and that place is Tel Aviv.
Ben Yehuda Street
Jewish groups criticized the court's decision. The Conference of Presidents of Major American Jewish Organizations expressed hope that the Supreme Court "will reverse this policy that discriminates singularly against Israel, and will afford those born in Jerusalem the same right accorded to those born elsewhere" if it hears the Zivotofsky case again.
"Current practice in regard to the passport issue is inconsistent with legislation passed by the Congress of the United States, recognizing united Jerusalem as the capital of Israel," the Conference of Presidents said.
The legislation, known as the Jerusalem Embassy Act of 1995, calls for the commencing and funding the relocation of the US Embassy in Israel from Tel Aviv to Jerusalem no later than May 31, 1999. However, Section 7 of the Act provides a presidential waiver, allowing the president to suspend any actions for six months if the President determines it is necessary to protect the national security interests of the United States (Under the US Constitution the President has exclusive authority to recognize foreign sovereignty over territory.). Since the enactment of the legislation the presidential waiver has been signed every six months by the sitting president. In effect, the legislation was nothing more than an appeasement to the voters by their Congressional representatives, knowing that no president would ever allow the moving of the Embassy to take place.
Marc Stern, the American Jewish Committee's general counsel, said the ruling "undermines the existing balance of power between the Congress and Executive branch in foreign policy."
The appeals court "has effectively given a stamp of approval to the offensive State Department policy that singles out Israel for 'special' treatment," said Abraham H. Foxman, national director of the Anti-Defamation League.
"All other American citizens born abroad may choose to list a city or area of birth instead of a country," Foxman said. "Even Taiwan-born US citizens are permitted to identify Taiwan as their birthplace, despite protests by China, the recognized sovereign over that territory."
[Source: JNS.org News Service]