US court: No ‘Israel’ on passports of American citizens born in Jerusalem

The US president – and not lawmakers – has the sole authority to say who controls Jerusalem, court rules.

July 23, 2013 21:27
3 minute read.
Western Wall

Western Wall. (photo credit:


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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.

In the government, the president “exclusively holds the power to determine whether to recognize a foreign sovereign,” Judge Karen Henderson wrote for the panel.

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.

When president 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 country.

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 Tuesday’s ruling.

The Zivotofskys plan to ask for the Supreme Court’s opinion once again, their lawyer, Nathan Lewin, said on Tuesday.

“Today’s 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.

American 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 efforts.

“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 Jerusalem Post.

“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 again.”

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 birthplace.

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