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Staying neutral on Jerusalem (UPDATED)

UPDATED: The lawyer for the family involved in this case has said he will seek Supreme Court review.  The statement by Nathan Lewin is here.


Carrying out a constitutional assignment the Supreme Court gave it last year, the D.C. Circuit on Tuesday struck down a 2002 federal law that ordered the government to list Israel as the birthplace on the passport of U.S. citizens born in the disputed city of Jerusalem — a law that the White House believed interfered with the U.S. stand on the city’s neutrality.

In nullifying the law, the Circuit Court upheld sweeping and exclusive power for the president over the official recognition of other countries’ governments.  The judges concluded that the issue is not settled by the text of the Constitution, but by history since the founding document was ratified.

Congress and the White House have been feuding since at least 1817 over who has the authority to choose the foreign governments that the U.S. would treat as legitimate.  The status of Jerusalem has figured in the latest round of that controversy, at least since 1995.  But presidents since Harry Truman in 1948 have insisted that the U.S. remain neutral over the issue of which nation has sovereign control over Jerusalem.  That issue is regularly at the center of regional tensions in the Middle East.

That feud over Jerusalem’s status has been at the forefront of a ten-year court battle by an American couple to have the U.S. government designate Israel as the birthplace of their son on his passport, since he was born in Jerusalem.   The youth, now eleven years old, is Menachem Zivotofsky.   He was born there in 2002 to his citizen parents, Ari Z. and Naomi Siegman Zivotofsky.

But the State Department, as part of its policy of maintaining a neutral stance on Jerusalem, refused to list Israel as Menachem’s place of birth on his passport.   However, he was entitled to that, under a law passed by Congress in 2002, explicitly giving parents that option for a Jerusalem-born child.  Thus, the dispute set up a new and fundamental constitutional conflict between Congress and the White House.

Four years ago, however, the D.C. Circuit ruled that the dispute over the 2002 law was one that could only be worked out by the political branches — Congress and the presidency — and thus the federal courts must stand aside.   In a ruling on March 26 of last year, in the case of Zivotofsky v. Clinton, the Supreme Court disagreed, deciding that the constitutionality of the 2002 law was the kind of straightforward question of law that the courts could decide, and returned the case to the Circuit Court to do so.   That led to Tuesday’s Circuit Court ruling favoring the president in this constitutional feud.  (The blog discussed last year’s ruling by the Supreme Court in this post.)

In an opinion written by Circuit Judge Karen LeCraft Henderson, the three-judge panel said: “We conclude that longstanding post-ratification practice supports the Secretary [of State]’s position that the President exclusively holds the recognition power.”  Presidents since George Washington have believed that they had that sole power, the opinion said.

Besides its strong endorsement of sole presidential power over recognition of other nations, the Circuit panel ruled that, while Congress has some authority to pass laws dealing with the issuance of U.S. passports, the lawmakers must share that power with the executive branch. And, it concluded, in the case of the 2002 law, the attempt to regulate the birthplace designation for those born in Jerusalem intruded on the president’s power.   That law, it commented, “runs headlong into a carefully calibrated and long-standing Executive branch policy of neutrality toward Jerusalem.”

The Henderson opinion was supported in full by Circuit Judges Judith W. Rogers and David S. Tatel, although Tatel also wrote a concurring opinion spelling out further some of his own views on the controversy.

The family involved in the case has the option of asking the D.C. Circuit to reconsider the case en banc and also could decide to take the case directly on to the Supreme Court.   The family has pursued two other appeals as the case unfolded in the courts.

Recommended Citation: Lyle Denniston, Staying neutral on Jerusalem (UPDATED), SCOTUSblog (Jul. 23, 2013, 4:21 PM),