WASHINGTON – A US federal appeals court on Tuesday invalidated a law that was
designed to allow American citizens born in Jerusalem to list Israel on their
passports as their birthplace.
The unanimous ruling by the three-judge
panel of the US Court of Appeals for the District of Columbia Circuit upholds a
longstanding US foreign policy dictate that says that the president – and not
lawmakers – has the sole authority to say who controls Jerusalem.
government, the president “exclusively holds the power to determine whether to
recognize a foreign sovereign,” Judge Karen Henderson wrote for the
Since the founding of Israel, US presidents have declined to state
a position on the status of Jerusalem, leaving it as one of the thorniest issues
to be resolved in possible future peace talks.
The US State Department,
which issues passports and reports to the president, has declined to enforce the
law passed by Congress in 2002, saying it violated the separation of executive
and legislative powers laid out in the US Constitution.
George W. Bush signed the law, he said that, if construed as mandatory rather
than advisory, it would “impermissibly interfere” with the president’s authority
to speak for the country in international affairs.
Ari and Naomi
Zivotofsky, whose son Menachem was born in Jerusalem and is a US citizen, filed
a lawsuit in 2003 demanding that the government enforce the law. Menachem’s
passport lists the city of birth as Jerusalem and does not mention a
The issue reached the US Supreme Court last year on the
preliminary question of whether it was so political that it did not belong in
the courts. The high court ruled 8-1 that the case could proceed, setting up
The Zivotofskys plan to ask for the Supreme Court’s
opinion once again, their lawyer, Nathan Lewin, said on Tuesday.
majority and concurring decisions acknowledge that the constitutional issue
presented by this case is significant and calls for resolution by the Supreme
Court,” Lewin said in a statement.
While Israel calls Jerusalem its
eternal and indivisible capital, few other countries accept that status. Most,
including the US, have their embassies to Israel in Tel Aviv.
Jewish organizations have been following the case closely, having lobbied
Congress for the original legislation. After applying pressure on consecutive
administrations, both Democrat and Republican, to recognize Jerusalem-born
citizens as Israelis, the court decision represented a setback to their
“The core question is simply factual: Can somebody be born in a
city that’s not part of a state?” Malcolm Hoenlein, executive vice chairman of
the Conference of Presidents of Major American Jewish Organizations, told The
“The court ruled on the constitutional issues, not on the
substance. It’s not their prerogative to deal with the substance, so it’s not
like it addresses the status of Jerusalem.”
The American Jewish Committee
had submitted a brief in the case arguing the constitutionality of the law, and
in a statement to the Post said that its leadership was “not pleased” with the
decision to gut Section 214(d).
“The appellate court’s ruling that
section 214(d) is unconstitutional is unfortunate, as it undermines the existing
balance of power between the Congress and Executive branch in foreign policy,”
said AJC General Counsel Marc Stern. “No one should be surprised if the
Zivotofsky family petitions the US Supreme Court to hear their case
An estimated 50,000 American citizens were born in Jerusalem and
could have used the law, if it were enforced, to list Israel as their
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