Will ‘Israel’ passport case return to Supreme Court?


An attorney for Washington-area residents Ari and Naomi Zivotofsky says he plans to file a petition to the Supreme Court within 90 days, after a federal appeals court this week upheld the State Department’s refusal to list “Israel” as the country of birth for their Jerusalem-born son, Menachem, 11.

Congress in 2002 passed a law mandating the listing of “Israel” should Americans born in Jerusalem request it. But the State Department has not complied, arguing the law impinges on the executive branch’s foreign policy prerogative.

The Supreme Court last year had remanded the case of Zivotofsky v. the Secretary of State to the court of appeals to decide whether the president must follow the congressional directive.

On July 23, the Court of Appeals for the District of Columbia ruled that to list Israel “runs headlong into a carefully calibrated and longstanding executive branch policy of neutrality toward Jerusalem.”


Now, Zivotofsky attorney Nathan Lewin wants to return the case to the Supreme Court. “I think they would agree to hear the case again and decide it,” he told WJW.

The next step after he files the petition is the government’s response. “The case probably won’t be heard until January or February 2014,” he said.

Jewish groups, some of whom had filed friend of the court briefs on behalf of the Zivotofskys, were largely critical of the ruling.

Conference of Presidents of Major American Jewish Organizations Chairman Robert Sugarman and Executive Vice Chairman Malcolm Hoenlein called the decision “disappointing” and expressed the “hope [that] the administration will reconsider the issue… . We hope that the Supreme Court will reverse this policy that discriminates singularly against Israel, and will afford those born in Jerusalem the same right accorded to those born elsewhere.”

U.S. Rep. Eliot Engel (D-N.Y.) said the ruling “not only flies in the face of basic geography, but thumbs its nose at the fact that the U.S. Constitution clearly places authority over passports and regulations regarding U.S. citizens born abroad in the hands of Congress.”

And the ADL expressed “deep disappointment” in the decision. It had earlier “argued that the purpose of passports is for identification, and that the issuance of them does not establish or implement foreign policy.”

“Even Taiwan-born U.S. citizens are permitted to identify Taiwan as their birthplace, despite protests by China, the recognized sovereign over that territory,” said Abraham H. Foxman, ADL’s national director.

Nathan Diament, executive director of public policy for the Orthodox Union, said the fact that Jerusalem is Israel’s political capital “has been recognized again and again by the United States Congress and duly enacted laws, even as such recognition has been practically unrecognized by the Executive Branch… . The practice of the State Department to refuse compliance with the law is wrong and we will support the appeal of this ruling to the U.S. Supreme Court.”

Marc Stern, the American Jewish Committee’s general counsel, said, “An American passport, not the current and future status of Jerusalem, is the core issue in the Zivotofsky case.”

JTA contributed to this article.

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