Jerusalem, Jerusalem

As many readers know, the U.S. State Department’s longstanding official policy is to refer to Jerusalem (both East and West) as just “Jerusalem”, and not “Jerusalem, Israel” or “Jerusalem, Palestine” or anything else. Thus, for example, there is the U.S. Consulate in Jerusalem, in contrast to the U.S. Embassy in Tel Aviv, Israel, the U.S. Consulate in Toronto, Canada, etc. The idea here is to avoid taking a public stance on the status of Jerusalem before a final agreement is reached, and thereby to avoid inflaming either side.

But this situation may not last forever. Yesterday, the Supreme Court heard oral arguments in Zivotofsky v. Clinton (aka M.B.Z. v. Clinton), a case that raises the Jerusalem issue as well as deeper constitutional issues about the separation of powers (and let’s face it, the Jerusalem issue isn’t important enough on its own to reach the Supreme Court).

The petitioner, Menachem Binyamin Zivotofsky, is a 9-year-old boy who was born in (West) Jerusalem to American parents. (Ari Z. Zivotofsky can’t be such a common name, so I suspect that the boy’s father is the same person who authored articles on the kashrut of the buffalo, the giraffe, and the turkey, which I had read long before this case, but please correct me if I have the wrong guy.) The respondent, of course, is Secretary of State Hillary Rodham Clinton, who was represented in court by Solicitor General Donald Verrilli.

In accordance with the policy discussed above, Menachem’s U.S. passport lists his place of birth as “Jerusalem”, so his parents sued in federal court, asking to have it changed to “Jerusalem, Israel”. On what basis did they sue? Congress passed a law in 2002 mandating, among many other provisions, that passports should list Jerusalem birthplaces as “Israel” upon request. Lacking a line-item veto and perhaps not wanting to veto the whole bill, President Bush signed it into law, but issued one of his famous “signing statements”, saying in essence that he didn’t intend to enforce the law. So despite the 2002 law, the actual policy remained unchanged, and the Obama administration has continued under the same policy.

The petitioners argued that the president doesn’t have the right to ignore a law passed by Congress. The government argued back that this part of the law was unconstitutional anyway, since recognition of foreign sovereigns has been a prerogative of the executive branch going back to George Washington. The lower courts held that this was a political question, to be resolved by the elected branches, and the judicial branch has no jurisdiction to step in. So the Supreme Court is going to have to resolve this three-way stalemate.

It’s a complicated question any way you slice it, and I’m not sure where I stand. On the one hand, the law seems irresponsible, and if it is enforced, it could have a poisonous effect on American efforts at Middle East diplomacy. On the other hand, it doesn’t seem right that a president should be able to ignore a law he disagrees with (without a court ruling it unconstitutional); Bush should have vetoed the law instead of holding himself above the law with a signing statement.

For a far more detailed exploration of the issues, Lyle Denniston of SCOTUSblog has extensive coverage both before and after yesterday’s argument, and the transcript of the argument is also online. Based on how the justices responded, Denniston seems to think that the government will win on narrow grounds.

What do you think?

Filed under Israel, Jerusalem, Politics, USA

8 Responses to “Jerusalem, Jerusalem”

  1. I think that this trial is a massive waste of taxpayer money and a massive waste of the court’s time which could be utilized for cases that actually matter. I imagine that when Bush did what he did he never imagined a family would sue the US gov’t because of it. My understanding of the law was that it would say Israel instead of Jerusalem. There are cases on the court docket right now involving District of Columbia v. Heller (the famous gun banning law in DC) and Al Odah v. United States about the lack of habeas corpus in military tribunal cases at Gitmo and Kimbrough v. United States which asks whether judges may disregard federal sentencing guidelines. These are REALLY IMPORTANT issues. What a 9 year old boy has listed as his place of birth? give me an f’ing break.


    Justin · November 10th, 2011 at 5:29 pm
  2. Justin writes:
    I think that this trial is a massive waste of taxpayer money and a massive waste of the court’s time which could be utilized for cases that actually matter.

    If the Court reaches the question of whether signing statements are valid, this could have much larger consequences than a 9-year-old’s passport, since it could affect a wide range of Bush administration policies (many of which have been continued by the Obama administration).

    My understanding of the law was that it would say Israel instead of Jerusalem.

    I think you’re right. Oops. Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003 says “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.”

    Does anyone know what it normally says for (non-Jerusalem-born) foreign-born citizens? Is it “City, Country” or just “Country”?


    BZ · November 10th, 2011 at 5:51 pm
  3. the question of whether signing statements
    I didn’t realize that was the scope of the trial, I thought it was limited to the issue of status of Jerusalem according to the US State Dept. vis a vis federal documents. It is more important than I presumed, but still pales in comparison of import to a number of the other cases on the docket presently.

    according to wikipedia: “For places within the US, it contains the State and country, but for places outside the US, only the country is mentioned. The name of the country is the current name of the country that is presently in control of the territory the place of birth and thus changes upon a change of a country name. Special provisions are in place for people born in Palestine/Israel.”


    justin · November 10th, 2011 at 9:55 pm
  4. It is more important than I presumed, but still pales in comparison of import to a number of the other cases on the docket presently.

    What Justin might not realize is that the Court is very selective about the cases it hears, and it selects cases that revolve around a key legal principle. The actual facts of the cases the Court hears don’t matter. So, yes, the question about signing statements is just as important as those military tribunal cases, according to the Court. That’s the Court’s job.

    For instance, the Court’s seminal decision, Marbury v. Madison, was actually about a piece of paper not timely delivered. Should the justices have said something like, “there’s a debate about the Louisiana Purchase going on right now, and you want us to talk about whether William Marbury can get a job???? give me an f’ing break.”


    Jonathan1 · November 11th, 2011 at 2:28 am
  5. The actual facts of the cases the Court hears don’t matter.

    With the occasional exception, like Bush v. Gore (so BZ doesn’t throw that up.)


    Jonathan1 · November 11th, 2011 at 2:38 am
  6. Wait, so they’re trying to get his passport not to say “Jerusalem”? Is this kid’s tongue going to cleave to the roof of his mouth, or what?


    BZ · November 11th, 2011 at 9:51 am
  7. justin writes:
    “according to wikipedia: “For places within the US, it contains the State and country, but for places outside the US, only the country is mentioned.”

    Aha! Mine says “New York, U.S.A.”, so until now, I had no idea it was “State, Country”; I always thought it was “City, Country”.


    BZ · November 11th, 2011 at 9:52 am
  8. The audio of the argument is now online.


    BZ · November 13th, 2011 at 3:15 pm

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