By Susan B. Tuchman, Esq. & Morton A. Klein
(October 30, 2020 / JNS) The Trump administration took another strong step in supporting Israelzoa and the rights of the Jewish people. U.S. Secretary of State Mike Pompeo announced on Oct. 29 that U.S. citizens born in Jerusalem will now have the right to have “Israel” listed as their birthplace on their passports. This is a right that the Zionist Organization of America began fighting for 17 years ago.
In 2002, Congress passed legislation permitting American citizens born in Jerusalem to have “Israel” recorded as their birthplace on their passports, and President George W. Bush signed it into law. The law was clear, mandating the State Department to list “Israel” if the request was made.
But after the State Department refused to enforce the law, the ZOA sued on behalf of an American citizen born in Jerusalem whose parents’ request to have “Israel” listed on his passport was denied. The ZOA was the only Jewish organization to take formal legal action to enforce the law. Separately, attorneys Nathan Lewin and Alyza Lewin brought suit on behalf of Menachem Zivotofsky, another American citizen born in Jerusalem whose legal right was violated. The two cases were consolidated in the federal district court in Washington, D.C.
The Zivotofsky case made its way to the U.S. Supreme Court—twice, with a stop in between at the U.S. Court of Appeals for the D.C. Circuit. The ZOA submitted amicus briefs in support of Zivotofsky in the Court of Appeals and the Supreme Court.
The main issue in the case was whether the 2002 federal law impermissibly infringed on the president’s power to recognize foreign sovereigns since the United States has never formally recognized Israel’s sovereignty over Jerusalem. The ZOA’s briefs showed that this could not be a genuine concern. For years, many departments and agencies in the U.S. government, including the State Department, were routinely referring to Jerusalem as part of the State of Israel. Even the White House was doing it with no discernible impact on the president’s foreign-policy powers. It was thus hard to conclude that enforcing the 2002 law, which would simply allow “Israel” to be listed on a passport of someone born in Jerusalem, would have any such impact.
ZOA gave example after example of the numerous references to “Jerusalem, Israel” by the State Department, the Commerce Department, the Defense Department, the Department of Homeland Security, the Justice Department, the Treasury Department and others. Even the Executive Office of the president referred to Jerusalem as part of Israel.
For instance, we identified photos on the White House website that were taken on then-Vice President Joe Biden’s trip to the Middle East in March 2010. One was captioned: “Vice President Joe Biden meets with Israeli Prime Minister Benjamin Netanyahu in Jerusalem, Israel, March 9, 2010.” Another photo’s caption read: “Vice President Joe Biden laughs with Israeli President Shimon Peres in Jerusalem, Israel, March 9, 2010.” A third said: “Vice President Joe Biden has breakfast with Former British Prime Minister Tony Blair … in Jerusalem, Israel, March 10, 2010.” Each photo was identified as an “Official White House Photo.”
ZOA’s argument must have been compelling because days after the ZOA filed its first brief with these “Jerusalem, Israel” citations, many of them were changed to “Jerusalem” only. “Israel” was deleted. Scrubbing the record, however, didn’t change the fact that the U.S. government was routinely referring to Jerusalem as part of Israel with no negative consequences, and that there would surely be no such consequences if the 2002 law was enforced as written.
The ZOA’s amicus briefs also showed the double standard that the State Department was applying. It was refusing to enforce the 2002 law because the United States had not officially recognized Jerusalem as part of the State of Israel. But what the U.S. government officially recognized did not always govern the State Department’s actions. It would sometimes defer to the personal preferences of American citizens when it came to what would be listed on their passports, even if that meant ignoring which country had sovereignty over the area of the citizens’ birth.
American citizens born before 1948 in an area that became part of the sovereign State of Israel (not including Jerusalem and certain other areas) were not required by the State Department to list “Israel” as their birthplace. They could choose “Palestine” instead, even though Palestine is not and never has been a sovereign nation.
The State Department also honored certain personal preferences of American citizens born in sovereign Israel in or after 1948. If they objected to listing “Israel,” they could choose their city or town—Tel Aviv or Haifa, for example—instead. If the personal preferences of those who did not want to identify with Israel could be honored, it was hard to justify why the State Department would not honor the preferences of those who did wish to identify Israel as their birthplace.
Disappointingly, the Supreme Court decided in 2015 that the 2002 law was unconstitutional because it infringed on the president’s sole authority to recognize foreign sovereigns. The majority opinion was delivered by Justice Anthony M. Kennedy and joined in by the three Jewish justices on the court.
What followed with the election of Donald Trump to the presidency changed everything for many Jews and Israel supporters. In December 2017, he recognized Jerusalem as Israel’s capital and ordered that the U.S. embassy be relocated from Tel Aviv to Jerusalem, where it sits today.
This latest decision by the Trump administration with regard to the passports of Americans born in Jerusalem is consistent with that recognition and is welcome news. President Trump has ended a long irrational injustice. After ZOA fought such a long legal battle, it is gratifying that these Americans can finally identify the fact that Jerusalem, Israel, is their birthplace.
Susan B. Tuchman is director of the Zionist Organization of America’s Center for Law and Justice. Morton A. Klein is the national president of the Zionist Organization of America.
The original article was published by JNS and can also be viewed on our website.
