Treading into Middle East foreign policy, a federal appeals court in Washington today upheld the dismissal of a suit where a U.S. citizen born in Jerusalem wants "Israel" identified as the birth country.
The federal government does not recognize any one country or political body as having sovereignty over Jerusalem, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit noted in its opinion today.
A provision in the Foreign Relations Authorization Act of 2002 said a person who is born in Jerusalem can have Israel designated as the country of birth. President George W. Bush, in a signing statement that year, declared that section of the bill would interfere with the president’s authority to conduct foreign affairs. Bush said the policy regarding Israel had not changed.
The parents of Menachem Zivotofsky, a boy who was born in Jerusalem in October 2002, sued the government in U.S. District Court for the District of Columbia. A judge dismissed the suit on, among other things, the ground that the court lacked jurisdiction to decide a question reserved for the political branches.
Nathan Lewin of D.C.’s Lewin & Lewin argued for Zivotofsky in the D.C. Circuit in Ocober, saying that Congress has enough authority over passports to declare that a person born in Jerusalem should be able to identify the birth country as Israel. Lewin argued that he was not asking the court to decide the status of Jerusalem because Congress had already done that in the law it passed. Justice Department attorney Lewis Yelin argued for the government.
Writing for the appeals court, Judge Thomas Griffith said the president “has exclusive and unreviewable constitutional power to keep the United States out of the debate over the status of Jerusalem.” Griffith and Senior Judge Stephen Williams decided the case on a jurisdictional ground and did not reach the merits over whether the provision in the Foreign Relations Authorization Act of 2002 is constitutional.
“Because the judiciary has no authority to order the Executive Branch to change the nation’s foreign policy in this matter, this case is nonjusticiable under the political question doctrine,” Griffith wrote.
Senior Judge Harry Edwards wrote separately but agreed with the outcome. In his opinion, Edwards found the provision in the act unconstitutional.