Published July 23, 2013
WASHINGTON – A federal appeals court Tuesday declared unconstitutional a law allowing Americans born in Jerusalem to list Israel as their birthplace on their U.S. passports, the latest ruling in a case that stretches back a decade.
The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said that the 2002 law impermissibly infringes on the president's exercise of the power to recognize foreign governments.
The case was brought by parents of an American boy named Menachem Zivotofsky, who was born in a Jerusalem hospital soon after the law was passed. The parents wanted to list Israel as his birthplace, but the U.S. has refused to recognize any nation's sovereignty over Jerusalem since Israel's creation in 1948 -- so the boy's U.S. passport only says "Jerusalem" as his birthplace.
The Bush administration said Congress may not tell the president what to do regarding this aspect of foreign relations, and the Obama administration has taken the same position. Longstanding U.S. foreign policy that says the status of Jerusalem should be resolved in negotiations between Israel and the Palestinians.
Tuesday's opinion, written by Judge Karen LeCraft Henderson, an appointee of President George H.W. Bush, took a long look at the history of the president's power to recognize other countries.
"Beginning with the administration of our first president, George Washington, the executive has believed that it has the exclusive power to recognize foreign nations," she wrote.
Henderson included several examples of presidents asserting authority over Congress in this area, including the Senate consideration of a 1919 resolution recommending withdrawing recognition of the Mexican government. President Woodrow Wilson wrote a letter to Congress that if the resolution were to pass, it would "constitute a reversal of our constitutional practice which might lead to very grave confusion in regard to the guidance of our foreign affairs" because "the initiative in directing the relations of our government with foreign governments is assigned by the Constitution to the executive, and to the executive, only." The chairman of the Senate Foreign Relations Committee quickly declared the resolution "dead."
In addition, Henderson wrote, the Supreme Court has more than once said that the recognition power lies exclusively with the president.
She said the passport law "runs headlong into a carefully calibrated and longstanding executive branch policy of neutrality toward Jerusalem."
The law was part of a large foreign affairs bill that President George W. Bush signed into law. But even as he did so, Bush issued a signing statement in which he said that "U.S. policy regarding Jerusalem has not changed."
Henderson said that the purpose of the passport law was to alter U.S. foreign policy toward Jerusalem, noting its title is "United States Policy with Respect to Jerusalem as the Capital of Israel."
Henderson was joined by Judge Judith W. Rogers, an appointee of President Bill Clinton. The third judge, David S. Tatel, also a Clinton appointee, filed a concurring opinion in which he said he fully concurred in the court's opinion, but wanted to "elucidate my thinking about the important and novel separation-of-powers question this case presents."
The attorney for the Zivotofskys, Nathan Lewin, said in a statement that he'll try to get the case heard in the U.S. Supreme Court.
"We hope that before Menachem Zivotofsky's bar mitzvah he will be able to bear a passport that recognizes his birthplace as `Israel,"' Lewin wrote. Jewish boys have their bar mitzvah at the age of 13.
The lawsuit was filed back in 2003, and a judge said it was a political question for Congress and the president to work out without the intervention of the courts. A three-judge appeals court panel -- made up of different judges than the panel which decided the case Tuesday -- agreed that it had no authority to consider the claim.
But the Supreme Court last year overturned the ruling and sent the case back down to the appeals court to decide whether the law was constitutional.