Is Jerusalem the capital of Israel?

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By Suzanne Pollak

Ever since George Washington, the executive and the legislative branches have been at odds over who controls foreign policy. This issue soon may reach new clarity now that the United States Supreme Court has agreed to hear a case concerning whether American citizens born in Jerusalem have the right to list Israel as their place of birth on their passports and birth certificates.

On the other hand, say legal experts, the justices may decide to sidestep the separation of powers issue and specifically rule on what can and cannot be listed on a person’s official documents.

American citizens born in Jerusalem must list that city as their place of birth unless they request that their documents say “Israel.” But the 2002 Foreign Relations Authorization Act that allowed for this exemption was found by a lower court to be unconstitutional interference with a president’s authority to handle foreign policy. Therefore, Presidents George W. Bush and Barack Obama continue to ban the word Israel from Jerusalem born American citizens’ documents listing their place of birth.

On Nov. 3, the Supreme Court is set to hear oral arguments in the case of 12-year-old Menachem Binyamin Zivotofsky, who was born in Jerusalem and whose parents lived in Silver Spring before making aliyah. Washington, D.C., attorney Alyza Lewin will argue the case. Lewin, and her father, Nathan Lewin, have represented many Jewish clients in the past, including AIPAC and Chabad. The Zivotofsky case was heard by the Supreme Court once before, which sent it back to the U.S.

District Court of Appeals for the District of Columbia Circuit, calling it a political question more than a legal matter, and therefore something for the president and Congress, not the courts, to work out.

During arguments held in March 2013 before the lower court, Lewin had stated that listing one’s place of birth is simply a matter of self-identification, the same as listing height, eye or hair color and should carry no further weight.

The lower court ruled in July 2013 that the president has exclusive powers to recognize other nations, and therefore Congress’ actions to allow Israel to be listed as a place of birth was unconstitutional.

The Lewins appealed, arguing in their legal brief that the Constitution’s recognition clause applies only to the ceremonial duty of recognizing foreign ambassadors and that Congress is involved in foreign policy.

AJC attorney Marc Stern, who filed a brief in favor of listing Israel on passports and birth certificates, said the Supreme Court could finally answer the question of who gets to make foreign policy. The court also could “punt,” ruling that the case only involves passports, he said.

If their ruling deals with separation of powers, that would be very significant, Stern said. “It clearly will strengthen the hand of Congress” and, for instance, potentially allow “Congress to force the president to do something in Syria.”

A ruling that broad would create a discussion between the executive and legislative branch, before any power-holding changes really occur, he predicted.

A Supreme Court ruling concerning only passports and birth certificates would address this “fairly unique” situation, Stern said. “This is the only place that I know of where a nation doesn’t get to pick its own capital,” he said.

The court also may factor into its ruling the Mideast crisis, believing that if the United States declares Jerusalem as the capital of Israel, it would hurt efforts to achieve peace. The United States does not recognize any state as having sovereignty over Jerusalem and maintains its embassy in Tel Aviv. In its briefs on this case, the government has consistently stated that the status of Jerusalem is “one of the most sensitive and long-standing disputes in the Arab-Israeli conflict.”

Attorney Jerrold Ganzfried, a partner in the law firm Holland & Knight, believes this case is not about the court deciding foreign policy on the status of Jerusalem but rather what role, if any, does Congress have to regulate passports. The precise matter before the court actually is quite specific and pretty dull, said Ganzfried, who has argued cases before the Supreme Court 15 times.

He praised both Lewin and U.S. Solicitor General Donald Verrilli Jr., who is expected to argue the government’s case.

He believes it would be best for both of them to “focus on what is and isn’t involved in the case,” adding that if either side appears to be advocating a position more extreme than the actual case, “it’s going to be rough sledding.” Bruce Ledewitz, a Duquesne University School of Law professor, predicted that the Supreme Court will affirm the president’s power, in handling foreign affairs, to decide what the capital of Israel is.

“I do not see how the plaintiffs will win the case. I don’t think it’s even a close question,” he said. Despite branding the Supreme Court as “highly partisan,” and even after factoring in both President Obama’s unpopularity and Justice Antonin Scalia’s “deep ties to the Jewish community,” Ledewitz predicted that “cooler heads will prevail.” The Supreme Court, he said, “will say that the answer to this problem is in the ballot box.”

Several Jewish organizations submitted briefs on behalf of the Zivotofskys. The Anti-Defamation League wrote that it believes Congress is “well within” its rights to regulate passports, and EMET, the Endowment for Middle East Truth, called the president “the instrument, but not necessarily the architect, of the United States foreign policy.”

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The Endowment for Middle East Truth
Founded in 2005, The Endowment for Middle East Truth (EMET) is a Washington, D.C. based think tank and policy center with an unabashedly pro-America and pro-Israel stance. EMET (which means truth in Hebrew) prides itself on challenging the falsehoods and misrepresentations that abound in U.S. Middle East policy.

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