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Implications of the Supreme Court's 'passport' case

Jerusalem Post OpEd

By Farley Weiss

US Supreme Court

US Supreme Court. (photo credit:REUTERS)

The United States Supreme Court heard a case recently, seemingly unimportant to many but with significant implications for Israel. The US Supreme Court has been asked to determine the constitutionality of Congress’s role in requiring the secretary of state’s office to list “Israel” on the passport of any American citizen born in Jerusalem. Currently, only “Jerusalem” appears on these documents, which thus omit designation of any nation’s (read: Israel’s) sovereign title to that city.


In what most concede to be a shrewd political play, the US administration has vigorously opposed attaching Israel’s name to these passports, claiming it was against US administrative policy to recognize Jerusalem as falling under Israeli sovereignty.

The argument is as simple as it is dishonest: namely that such a move could lead to violence if implemented.

The US government’s refusal, however, does not comply with the law.

As a result, the United States was sued by the family of Menachem Zivotofsky to force compliance with a statute that they claim should be invoked for their son, born in Jerusalem in 2002.

Their request, simply stated, asked that their son’s passport state that he was born in Israel.

A close reading of the arguments in the case makes clear that the US administration’s opposition is completely misplaced.

In the arguments, the advocate for the government, Solicitor General Donald Verrilli, stated, “The position of the executive (viz, Obama) is that we recognize, as a practical matter, the authority of Israel over West Jerusalem.”

Here, the point is deliberately made to suggest that the basis for the denial is that Israel’s sovereignty is otherwise disputed (others would argue, rejected) in other areas that make up Jerusalem proper.

But if geography is the cause of the dispute, it need not be. Menachem Zivotofsky was born in the western part of Jerusalem, and accordingly, qualifies to have Israel clearly identified on his US passport – without the risk of violating the US policy at all.

Further, Israel’s largest hospitals – Hadassah, Sha’arei Tzedek, Misgav Ladach and Bikur Cholim – are all in the western part of Jerusalem, an area the administration now admits is recognized as being under Israeli sovereignty.

Therefore, every American born in those hospitals in Jerusalem is born in areas the administration would recognize as “Israel.” The law requires that the name of a person’s country of birth be put on their passports, and not the city. Understandably, then, someone born in Jerusalem would be listed as being born in Israel. Accordingly, there would be no political issue requiring the US to designate “Jerusalem” as their place of birth.

But the Obama administration steadfastly refuses – its opposition apparently based upon a notion that it is being forced to change its foreign policy position. The reason is purely political, and legally bogus.

Although it was not really discussed in the arguments, it should be noted that 93 out of 100 US Senators voted for the Jerusalem Embassy Act of 1995 – recognizing a united Jerusalem as the capital of Israel. Yes, Jerusalem proper. Quite ironically, two of those Senators are current Vice President Joe Biden and current Secretary of State John Kerry. Then-Senator Kerry further signed a letter to president Bill Clinton, along with 83 colleagues, that stated that the waiver provision of the Jerusalem Embassy Act only applied to moving the embassy to Jerusalem and not to the recognition of Jerusalem as the capital of Israel.

The letter stated, quite clearly, that under US law Jerusalem is the recognized capital of Israel. The Obama administration has joined previous US administrations in not complying with the Jerusalem Embassy Act according to the letter.

Few, other than Israel’s enemies or detractors, would challenge that one of the greatest moments in modern history was Israel’s unification of Jerusalem in 1967. Jerusalem is the holiest city in Israel, with the Temple Mount in the Old City of Jerusalem being Judaism’s holiest site. Jews everywhere face the Temple Mount when praying from anywhere in the world. Its role is central to the religion, a claim that was technically recognized by the United States – a point not lost on those who argue that those born in Jerusalem should be listed as being born in Israel on their passports. Clearly, Israel’s security and the freedom of Jews to pray at its holiest sites depend upon Jerusalem remaining under Israel’s sovereignty.

It was therefore logical that that connection be officially recognized as well.

The case of whether an American citizen born in Jerusalem will have Israel listed on a US passport should not be a significant challenge for the Obama administration – as it has been established that those citizens were born in areas of Jerusalem that the administration already recognizes de-facto as Israel. The Obama administration, therefore, should not improperly claim some conflagration could occur simply due to compliance with US law. The Obama administration should drop its opposition to the law and start listing Israel on all relevant American passports, beginning with Zivotofsky’s.

American Jews both in the US and in Israel are pained that this has not happened, pointing accurately to a policy change made improperly and extra-legally.

The failure to put the name of Israel on the passport of an American born in Jerusalem is simply a wrong that the US Supreme Court has an opportunity and an obligation to right.

The writer is president of the National Council of Young Israel.​

 

Wed, 26 November 2014 4 Kislev 5775