Menachem v. Hillary

The US Supreme Court will hear the case of an American-Israeli boy who wants to force the US Secretary of State to give Jerusalem a country

By
May 25, 2011 11:01
Alyza and Nathan Lewin

Alyza and Nathan Lewin. (photo credit: Courtesy Lewin)

 
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MUCH HAS BEEN WRITTEN about Jerusalem over the millennia. The eternal city has been described as both beautiful and ugly, united and divided, serene and raucous, holy and obscene. It can leave one either joyous and fulfilled or furious and empty, occasionally psychotic, and sometimes all of those at the same time. Rarely does it leave one unmoved.

It’s a city people live for and die for – and, in this litigious age, sue for. Witness: Menachem Binyamin Zivotofsky.

Menachem was born in Jerusalem to Naomi and Ari Zivotofsky, US citizens by birth who immigrated to Israel in 2000. Since Naomi and Ari met the criteria determined by the State Department, Menachem, although born abroad, was registered as a US citizen and issued a US birth certificate and passport.

The Zivotofskys asked US consular officials to list Menachem’s birthplace on these documents as “Jerusalem, Israel.” After all, they note, the State of Israel calls Jerusalem its capital, as it has for more than 60 years. What’s more, he was born at Shaarei Zedek Medical Center, deep in the part of town that Israel has always controlled, and far from the sections captured in the Six Day War that the Palestinians want for a capital of their own. In fact, the hospital is nestled at the head of a ravine just a hundred yards or so from the grave of Zionist visionary Theodor Herzl, so things probably can’t get any more “Israel” than this.

But the US disagrees. Since 1948, American foreign policy has stipulated that Jerusalem – all of it – belongs to no one and that it won’t belong to anyone until the warring parties, Israelis and Arabs, decide for themselves. Therefore the boy’s US documents list his birthplace simply as “Jerusalem,” with not a country in sight, something his parents – and probably just about all Israelis – consider erroneous and even an insult.

So Menachem, all of eight years old, is taking on no less than Hillary Rodham Clinton, US Secretary of State, and the tradition-minded diplomatic machine that she heads.

WHEN THE ZIVOTOFSKYS came to Israel from Silver Spring, Maryland, with their two children, now aged 14 and 16, they settled in Beit Shemesh, a town in the foothills about 20 minutes west of Jerusalem. Their youngest child, Menachem, became the family sabra when he was born on October 17, 2002. Today, Ari is a researcher in neuroscience at Bar-Ilan University near Tel Aviv, and Naomi is a pediatrician with a local practice.

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The couple began fighting the official US nomenclature for the city shortly after Menachem was born, eight and a half years ago.

“It’s just the principle,” Ari tells The Jerusalem Report. “It always bothered me, even before we made aliya. Congress passed a law and my son was born afterwards. We all agreed it would be an important case.”

The law he refers to is the Foreign Relations Authorization Act for fiscal year 2003. Section 214 of the act relates to what Congress felt US policy on Jerusalem should be, and part of it, Section 214(d), specifically states: “(F)or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the secretary [of state] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” (Other countries, such as Britain and Germany, are able to avoid this conundrum because unlike the US, which will write “Israel” as the birthplace for Americans born anywhere else in sovereign Israel, they use only the name of the city of birth, no matter where the passport bearer was born.)

Although he signed the act into law in September 2002 – just a month before Menachem was born – president George W. Bush noted in what’s called a statement of signing that there were parts he disagreed with. One was Section 214, which could, he said, “impermissibly interfere with the president’s constitutional authority to formulate the position of the United States, speak for the nation in international affairs, and determine the terms on which recognition is given to foreign states.”

Bush’s stand on this matter was similar to the position that his predecessor, Bill Clinton, had taken, and that his successor, Barack Obama, continues to take with regard to the Jerusalem Embassy Act, a congressional call in 1995 for the US to recognize Jerusalem as Israel’s capital and move its embassy there from Tel Aviv. Foreign policy is the prerogative of the government’s executive branch, the presidents have said, and it has been their belief that changing US policy on Jerusalem would harm America’s standing in the Arab world and interfere with Washington’s ability to broker an Arab-Israeli peace deal.

This is true with regard to Section 214 of the Foreign Relations Authorization Act, Bush declared.

US POLICY ON JERUSALEM can be traced back to the United Nations, whose General Assembly, in November 1947, voted to partition Palestine after Britain despaired of ever being able to maintain peace between its Jews and Arabs.

The partition plan’s delineations regarding what was to go to whom were highly controversial from the very start. But one thing was clear to most observers: Jerusalem, with its Christian, Muslim and Jewish holy sites, was so problematic, so prone to emotion, religious fervor and potential violence, that the only solution was to make it (along with Bethlehem and its own holy sites) a “corpus separatum” under an international regime.

General Assembly resolutions 194 and 303 cemented this arrangement, and more than six decades later they remain the last internationally recognized decisions to have been made on the status of the city. And there, at least as far as Washington is concerned, the matter stands.

Enter Alyza Lewin, a childhood friend of Naomi Zivotofsky (then Naomi Siegman) and a Washington attorney in practice with her father, Nathan Lewin, widely considered to be one of the finest lawyers to have practiced inside the “Beltway” in recent generations. A former deputy assistant US attorney general and assistant to the US solicitor general, Nathan Lewin has argued 27 cases before the US Supreme Court as either a public servant or in private practice. In addition, he has often taken on civil rights cases dear to the American Jewish community.

“Soon after Menachem was born,” Alyza Lewin tells The Report, “I spoke with Naomi and suggested that when she applied for his passport, she should specifically request that ‘Israel’ be listed as the place of birth. She agreed. And when the State Department refused, my father and I suggested that Menachem become our firm’s youngest client.”

They have taken on Menachem and his registration case on a pro bono basis, and it’s clear that this grew out of more than just a longtime friendship between two women.

“My father and I decided to bring this case because we felt that the State Department’s practice of refusing to list ‘Israel’ as the place of birth for American citizens born in Jerusalem was discriminatory,” Lewin says. “The State Department has complied with the requests of individuals who were born in Haifa or Tel Aviv and whose personal preference is to remove ‘Israel’ from their US passports, or even with the requests of those born in pre-1948 Israel who prefer to have ‘Palestine’ listed on their passport.”

The US, she says, also allows such designations as “Gaza Strip” and “West Bank” on its passports, yet, as with “Palestine,” it does not recognize these as foreign sovereigns.

“The only request that the State Department has refused to grant,” she complains, “is that of American citizens born in Jerusalem who request that their place of birth be listed as ‘Israel.’”

She then points to the Foreign Relations Authorization Act, especially its Section 214(d), which, she says, corrects “this inequity.”

In 2003, the Lewins took the Zivotofsky case before a US federal district court, which refused to hear it, calling it a “political question” and therefore something the judicial branch should not be involved in. A federal appellate court agreed, although its decision was not unanimous. One appeals judge even said the Zivotofsky case had merits and should be heard (although were he to preside, he would find for the government).

The next step was the US Supreme Court. In asking the court to intervene, the Lewins describe the question at hand as being “[w]hether the ‘political question doctrine’ deprives a federal court of jurisdiction to enforce a federal statute that explicitly directs the secretary of state how to record the birthplace of an American citizen on a Consular Report of Birth Abroad and on a passport…. [The] petitioner has not asked the court to resolve that ‘political question’ because that question was resolved in an explicit statute adopted by a ‘political branch’ – i.e., the Congress of the United States.”

Alyza Lewin explains that she and her father believe the Zivotofsky case is not a “political question,” but instead raises three significant issues about the separation of power among the branches of government called for by the US Constitution.

She explains: “One: What are the limits of Congress’s authority in matters of foreign policy? Two: What are the limits of the executive branch’s exclusive authority? Three: If Congress passes a law that is within its constitutional authority, may a president who does not agree with a section of the law essentially ‘erase’ that section by issuing a ‘signing statement,’ or must the president veto the law?”

ASKING THE TOP COURT NOT to intervene in the Zivotofsky case was Neal Katyal, the acting US solicitor general.

“There is no reason for this court to grant review to resolve a purely intrapanel disagreement with no impact on the ultimate result, particularly where, as here, the case involves an exceedingly sensitive foreign policy concern,” he argued in his response. “…None of the [appellate] panel judges deemed it necessary to consider the significance of the president’s signing statement or any challenge to it. The suggestion that the court of appeals would have to do so on remand is incorrect because – if the case were found justiciable– Section 214(d) would be found unconstitutional without any need to refer to the president’s statements.”

As attorney for the executive branch, the 41-year-old Katyal, described in the US legal community as a wunderkind, was basically saying that if anyone had overstepped its bounds, it had been Congress and not the president. Ironically, five years before, while still in private practice, he successfully defended the driver of Osama bin Laden before the Supreme Court by arguing that President Bush had overstepped his bounds by deciding to try suspected terrorists before military tribunals.

“The president,” the magazine “Vanity Fair” quoted him as saying the next year, “could essentially try people at Guantanamo Bay and he could write all the rules for the trial. He would be able to pick the prosecutors, pick the defendants, pick the judges, and hand-pick the appeals panel.”

In their reply to Katyal’s brief, the Lewins zeroed in on his claim that the Zivotofsky matter could have dire diplomatic consequences by writing that the government’s strategy “has been to exaggerate the foreign-policy significance” of writing “Israel” after “Jerusalem” on passports and birth certificates.

“There is, in fact, no solid basis for believing that if the State Department’s discriminatory passport practice is revised – as Congress did in 2002 with Section 214(d) of the Foreign Relations Authorization Act – there will be drastic foreign-policy consequences to the ‘highly sensitive’ and ‘politically volatile’ issue of sovereignty over Jerusalem,” they argued. “But the courts below have accepted these overblown representations and mistakenly invoked the ‘political question’ doctrine so as to avoid examining the real-life impact of the relatively modest change that Congress directed, in the interest of fairness…. Congress was satisfied that the sky will not fall on American foreign relations in the Middle East if the 52,569 American citizens born in Jerusalem carried passports that say ‘Israel’ (as 99,177 American citizens born in cities like Tel Aviv and Haifa now do) rather than ‘Jerusalem.’”

On May 2, America’s highest court agreed to hear the Zivotofskys out, perhaps as early as next fall.

“My father will be the one to argue the case before the Supreme Court,” Lewin says. “I plan to sit at counsel’s table and pass him notes with words of wisdom.”

She explains to The Report that they will not be asking the court to change foreign policy. “The case raises constitutional separation of powers issues,” she says. “Congress passed a law and the State Department is refusing to comply with the law. The Supreme Court will have to decide whether Congress had the constitutional authority to pass the law that it passed. If Congress had the authority, then the State Department must comply with the law.”

If the top court agrees, Lewin believes it will rule on the entire issue, and not send it back to a lower court for trial.

“The Supreme Court instructed the parties to address not only the ‘political question’ doctrine in their briefs, but also the underlying merits of the case,” she tells The Report. “The court will determine whether [Section 214(d) of the Foreign Relations Authorization Act for fiscal year 2003] is constitutional. If it is, the State Department will have to comply with the law and will have to list ‘Israel’ as the place of birth for American citizens born in Jerusalem who wish to have that designation.”

But if the court disagrees, Menachem and thousands of other US citizens born in Jerusalem will have to settle for the current wording on their documents, at least for now.

“Congress had its say. The executive branch has had its say. The judicial branch now will have the final say,” Ari Zivotofsky, Menachem’s father, tells The Report. “If the Supreme Court says ‘no,’ it would be a miscarriage of justice and a slap in the face to Israel.”

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