Jerusalem, Israel

J'lem passport case concerns issue that may affect over 50,000 Americans born in the city; US Supreme Court seems set to rule against Livotofskys.

November 13, 2011 00:01
4 minute read.
US passport

US passport 311. (photo credit: Thinkstock/Imagebank)


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On Monday, in a case that has received widespread exposure in the American media, the US Supreme Court heard arguments in a case regarding whether Americans born in Jerusalem may have “Israel” listed on their passports and Consular Records of Birth Abroad (birth certificates).

This has been a long-standing issue that could affect more than 50,000 Jerusalem-born Americans.

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The origins of the lawsuit go back more than a decade.

In 2,000, Naomi and Ari Zivotofsky immigrated to Israel from the US. On October 17, 2002, they had their third child, Menachem, who was born in Shaare Zedek Medical Center in Jerusalem. When they applied for a passport for their son, they requested that “Israel” be listed as the place of birth. The US State Department refused.

Since 1948, the State Department has not recognized anywhere within the municipal boundaries of Jerusalem as part of Israel. A childhood friend of Naomi, Alyza Lewin, then suggested they take the case before a US federal district court. “My father [Nathan] 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 said.

The reason that the Livotofskys have a case is that in September 2002, the US Congress passed the Foreign Relations Authorization Act Fiscal Year 2003. In that version of the annual legislation, Congress inserted a line regarding “record of place of birth as Israel for passport purposes.”

The law stated unequivocally: “for 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 shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”

However, as with other foreign policy meddling by Congress, such as requesting that the US Embassy be moved from Tel Aviv to Jerusalem, the State Department and the president ignored this provision, under the view that it is the sole right of the president to make foreign policy.

President George. W. Bush said at the time that the law “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs and to supervise the unitary executive branch.”

When the federal district court dismissed their case in 2006, it noted “such a determination [in support of the plaintiff] would thrust this court into the middle of a delicate foreign relations issue concerning the status of Jerusalem.”

Nathan Lewis, the attorney for the Livotofskys, is highly respected in Washington and has argued numerous cases before the Supreme Court. He was subjected to withering questioning by the justices on Monday. Justice Anthony Kennedy asked, “Is there any... decision of this court that supports such a narrow, crabbed interpretation of the president’s foreign policy power?” Justice Sonia Sotomayor wondered if a peace treaty was reached and Israel gave up its claims to Jerusalem, whether the president would then have to wait for Congress to rescind this law. Justice Antonin Scalia, widely regarded as one of the most conservative and insightful justices, asked Lewin if he was in fact arguing that Congress’ power to make foreign policy was superior to the president’s.

Of great interest was the fact that Lewin noted before the court that his clients were not asking for the passport to read “Jerusalem, Israel,” since that would essentially mean Jerusalem was being recognized as part of Israel, but only that his clients be allowed to list “Israel” as the country of birth.

This is an interesting distinction. Americans born abroad, or those who become naturalized US citizens, frequently have the country of birth, such as Russia, listed on their passport. Those born in the US have the state and country of birth listed, i.e, “Maine, USA.”

American citizens living in Israel may, by chance, have to give birth in a Jerusalem hospital, even though they had planned to give birth in one outside of Jerusalem, and by the accident of having driven a few kilometers in one direction will find that the “Israel” cannot be listed as their place of birth on official American documents. This seems to be an unfair burden placed on Americans who, by no fault of their own, simply wish their passports or birth certificates to read “Israel.”

The US Supreme Court seems prepared to rule against the Livotofskys, which is a shame, since there are compelling reasons that their son’s passport should read “Israel” without it having the added ramifications of meaning Congress is meddling in the president’s purview to make foreign policy.

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