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DC Circuit Rules Law Allowing Inclusion of “Israel” in U.S. Passport is Unconstitutional
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On Tuesday, the United States Court of Appeals for the District of Columbia Circuit ruled in the matter of Zivotofsky v. Secretary of State, that Section 214(d) of the Foreign Relations Authorization Act is unconstitutional. The section required the Secretary of the United States Department of State to record “Israel” as the place of birth on the passport of a US citizen born in Jerusalem on request of the citizen or his/her guardian.

The Secretary did not enforce the provision and the consequent non-enforcement was challenged in court. On Tuesday, the DC Circuit Court of Appeals agreed with the argument of the Secretary of US, Department of State, that the section is unconstitutional and impermissibly intrudes on the President’s exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations.

  
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The court observed as background of the issue that the “status of the city of Jerusalem is one of the most contentious issues in recorded history. For more than two millennia, the city has been won and lost by a host of sovereigns. The controversy continues today as the state of Israel and the Palestinian people both claim sovereignty over the city.”

The court observed that US Presidents have always taken a position of strict neutrality on the issue of sovereignty of Jerusalem. With the formation of Israel in 1948, President Truman recognized it as a sovereign nation. However, US Presidents onwards from and including Truman have “consistently declined to recognize Israel’s – or any country’s – sovereignty over Jerusalem.”

The court also mentioned that “When Israel announced in 1948 that it intended to convene the inaugural meeting of its Parliament in a part of Jerusalem that it controlled, the United States declined to send a representative …”

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Section 214(d) of the FRAA mentions that “For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”

However, the court observed, that when in 2003, President Bush signed the Act, he also issued a signing statement noting “Section 214, concerning Jerusalem, impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, 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. U.S. policy regarding Jerusalem has not changed.”



Currently, U.S. policy allows inclusion of the birthplace of a U.S. citizen as “Jerusalem,” but what was provided in the FRAA Section 214, i.e. to allow inclusion of “Jerusalem, Israel” was not implemented by the executive, and has now been declared unconstitutional by the judiciary.

The parents of Menachem Binyamin Zivotofsky sued in 2003 to have “Israel” included in the passport of Menachem who was born in Jerusalem citing FRAA Section 214 and the state department’s non compliance. The matter traveled to the U.S. Supreme Court, and in March 2012, the Supreme Court sent the case back to the DC Circuit Court of Appeals to determine whether Zivotofskys had a valid claim.



 

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