Jerusalem is the capital of Israel. Its final status will be determined in negotiations with the Palestinians.
These dual realities hover in the background of the case of Zivotofsky v. Secretary of State, and last week’s ruling in that case by the Court of Appeals for the District of Columbia Circuit. At issue was whether a U.S. citizen born in Jerusalem can have “Israel” stamped as his birthplace on his U.S. passport. The court ruled no.
But the case is not likely to end there, for it highlights a conflict between Congress’ power to regulate passport and immigration, and the president’s authority to conduct foreign policy. It will take the Supreme Court to resolve the dispute.
In 2003, American-born Ari and Naomi Zivotofsky sued to have “Israel” inscribed on their Jerusalem-born son’s U.S. passport, citing a policy passed by Congress in 2002 that allows for such a designation. The State Department never enforced the policy, arguing that it interferes with the department’s neutrality over Jerusalem’s final status, and that it usurps the president’s prerogative to set foreign policy.
Last year, the U.S. Supreme Court heard the first appeal of the Zivotofsky case on the issue of whether the matter could even be decided by the courts, and sent it back to the D.C. Circuit for a decision on the merits. In its July 23 ruling, the appeals court sided with the executive branch. It rejected the Zivotofskys’ arguments and ruled that the congressional provision is unconstitutional.
The issue presents an interesting constitutional question for the U.S. Supreme Court. But there is something very troubling on a practical basis about the result of the appeals court’s ruling. No matter how you slice it, Jerusalem is in Israel. And no matter the outcome of peace negotiations, Jerusalem will be in Israel. Congress recognized that. And the Zivotofskys appear to want nothing more than acknowledgement of that inescapable reality in their son’s passport.
We hope the Supreme Court finds a way to help assure that U.S. passports of Jerusalem-born U.S. citizens reflect that reality.