The U.S. Justice Department is urging a federal appeals court in Washington to shut down a suit the government contends has the potential to frustrate foreign relations in the Middle East.
The litigation in the U.S. Court of Appeals for the D.C. Circuit is rooted in a tiff over the place of birth designation on an American boy's passport. The boy, Menachem Zivotofsky, who was born in Jerusalem in 2002, wants "Israel" included on his U.S. passport. The boy's parents unsuccessfully sued the U.S. State Department in 2003 over the government's refusal to oblige his request.
A provision in federal law allows American citizens born in Jerusalem to designate the place of birth as "Jerusalem, Israel." But here's the problem: The United States doesn't officially recognize any state as having sovereignty over Jerusalem. DOJ lawyers, representing the U.S. State Department, said in a court brief filed yesterday—asking the court to uphold the dismissal of the suit—that the ultimate determination of the city is a "sensitive matter" that must be resolved through negotiation.
"The status of the city of Jerusalem is one of the most sensitive and longstanding disputes in the Arab-Israeli conflict," DOJ's Dana Kaersvang of the Civil Division said in the court brief. "For the last 60 years, the United States' consistent foreign policy has been to take no official act recognizing Israel's or any other state's claim to sovereignty over Jerusalem."
DOJ lawyers argue that only the executive branch has the authority to recognize a foreign sovereign. The government's legal team contends allowing "Jerusalem, Israel" as the place-of-birth designation would mark a separation-of-powers violation. The United States, Kaersvang said, has long sought to maintain a “strict policy” of not prejudging the status of Jerusalem.
President George W. Bush in 2003 signed the law that allows "Jerusalem, Israel" on U.S. passports. But, at the same time, the president said in a so-called “signing statement” that if the section of the law is imposed as a mandate, it would "impermissibly interfere with the president's constitutional authority to formulate the position of the United States, speak for the nation in international affairs, and determine the terms on which recognition is given to foreign states."
The lawyers for the Zivotofsky family, including Nathan Lewin of Washington's Lewin & Lewin, argue that Congress has the authority to regulate passports and did not overstep that power in enacting the provision in question in the case.
Lewin noted in court papers that the State Department has from time to time listed "Israel" as the country of birth on U.S. passports of citizens born in Jerusalem. He said there's no evidence the alleged errors hurt the foreign policy interests of the United States.
DOJ's response: "A mistake is not, of course, a change in policy amounting to an official recognition of the status of Jerusalem. When the State Department becomes aware of such errors, it seeks to correct them."
The case has attracted a number friend-of-the-court briefs. Gibson, Dunn & Crutcher partner Theodore Olson, who helped Republican vice-presidential nominee Paul Ryan prepare for tonight's foreign policy and domestic issues debate, is representing members of the Senate and House of Representatives in the dispute.
The provision of law in dispute, Olson said in a court brief, doesn't direct the State Department to change its official position on the status of Jerusalem. The provision, he said, only gives U.S. citizens the option to choose Israel as the place of birth.
"It would be strange indeed for Congress to have clear and unambiguous legislative powers over immigration, naturalization and foreign commerce, unless that legislation touches on a disputed territory, in which case Congress has no power at all," Olson said in the court papers. "Such a rule would, in fact, render Congress impotent in large swaths of its core legislative powers."
The appeals court hasn't set an argument date. The hearing will mark the second time the D.C. Circuit will take up the case. The court earlier upheld the dismissal of the suit on the ground that it improperly asked the judiciary to address a political question.
The U.S. Supreme Court earlier this year, however, ruled against the D.C. Circuit decision, saying that the constitutionality of the law isn't a "political question."