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Sunday, January 16, 2022
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Over 2700 hundred years ago, circa 740 BCE, it was written in The Book of Isaiah: “For the sake of Zion, I will not be silent, and for the sake of Jerusalem I will not rest. . .”(62:1). Whether that famous quote was a prophecy or a mandate we shall never know. But what we do know is that when it comes to Zion and Jerusalem there has hardly been “silence” and certainly no “rest.” At the center of all the noise, a noise which sometimes manifests as bombs and sometimes as bombast, is a singular question: To whom does Jerusalem belong? It is the cacophonous replies to that blood soaked question which ultimately spawned the case of 10-year-old Menachem Benjamin Zivotofsky v. the U.S. State Department. It’s a case that has once again hit headlines and instigated outrage from some of the top Jewish organizations in America.

Menachem Benjamin Zivotofsky was born in 2002 in West Jerusalem two years after his parents moved to Israel from Silver Spring, Maryland. According to American law, a child born to two U. S. citizen parents, regardless of one’s birthplace, is a United States citizen and fully entitled to a U. S. passport. And so Zivotofsky’s mother applied for one. The application specifically requested that the place of birth be designated as “Israel,” a legitimate request authorized by Section 214(d) of the Foreign Relations Authorization Act. That law, which passed 352 to 73 in the House, unanimously in the Senate and signed, begrudgingly, by George W. Bush in 2002, requires the State Department to issue passports listing “Israel” as the place of birth to American citizens born in Jerusalem (if they so request). Nonetheless, the State Department refused Zivotofsky’s request claiming that Congress’s law was unconstitutional and thus listed Zivotofsky’s place of birth as “Jerusalem.” Hence a decade-long court battle has ensued.

The case has been argued three times before the U. S. Court of Appeals for the District of Columbia Circuit U. S. and was even brought before the Supreme Court which voted 8-1 to remand the case back to the D.C. Circuit obliging it to rule on whether Congress’s law was valid. The Supreme justices rejected the State Department’s argument that the lawsuit raised a “political question” that fell beyond the purview of the courts. The appeals court took it up again and now the verdict is in: On July 23, 2013, the U.S. Court of Appeals for the District of Columbia, the second highest court in the land, ruled Congress’s law unconstitutional and further stated that the executive branch, i. e. , the president—not Congress, the legislative branch—“exclusively holds the power to determine whether to recognize a foreign sovereign. And behold, the vociferations began…

The Zionist Organization of America’s National President, Mort Klein stated: “We could not be more disappointed with the decision of the Court of Appeals refusing to enforce a law that Congress passed and the President signed.” The ZOA says there are many departments and agencies in the Executive Branch, including the State Department, that have routinely referred to Jerusalem as part of the State of Israel, without any evident impact on foreign policy or any power that the President might have to recognize foreign sovereigns.

The ZOA’s National Vice Chairman, Steven Goldberg, who is himself an attorney, goes even further and says, “Anyone who contends that international law prohibits Israeli sovereignty over Jerusalem is either deliberately lying or staggeringly ignorant.”

By way of example, some of Israel’s enemies make the spurious argument that Resolution 181 adopted by the U.N. General Assembly in November of 1947 requires Jerusalem to be a separate legal entity under international jurisdiction. That argument fails for two separate and independent reasons. First, the U.N. General Assembly is not empowered to pronounce international law. At most, it can adopt non-binding recommendations. Second, the Arabs categorically rejected Resolution 181, launched a war against Israel and lost. Thus that resolution cannot be used as a legal weapon against Israel’s sovereignty over Jerusalem. Goldberg points out that those born in Tel Aviv or Haifa can list “Israel” on their passport and that the U.S. also permits the West Bank and Gaza Strip, “even though neither has ever been recognized by America as a sovereign state.”  And for those born before 1948, “Palestine” may be listed as “place of birth” on a U.S. passport. So, once again, Israel is singled out.

Malcolm Hoenlein, executive vice chairman of The Conference of Presidents of Major American Jewish Organizations, an organization representing 52 national Jewish orgtanizations from across the political and religious spectrum, also called the ruling “disappointing.” He questions how somebody can be born in a city that’s not part of a state. “I hope that the Supreme Court will reverse this policy that discriminates singularly against Israel,” he said, adding that the decision is by no means a substantive ruling on the status of Jerusalem.

The Anti-Defamation League’s National Director, Abraham H. Foxman, added his frustrated voice to the mêlée: “The court failed to recognize the ministerial nature of this law and instead wrongly insisted that permitting this passport designation will somehow interfere with the president’s power to recognize a foreign sovereign.” Foxman went on to say that the court has effectively given a stamp of approval to the offensive State Department policy that singles out Israel for “special” treatment.” All other American citizens born abroad may choose to list a city or area of birth instead of a country,” he points out. “Even Taiwan-born U.S. citizens are permitted to identify Taiwan as their birthplace, despite protests by China, the recognized sovereign over that territory.”

The American Jewish Committee put out a statement saying that the ruling undermines the existing balance of power between the Congress and Executive branch in foreign policy. “An American passport, not the current and future status of Jerusalem, is the core issue in the Zivotofsky case,” said AJC General Counsel Marc Stern.

And in evermore idealistic words, the Union of Orthodox Jewish Congregations of America criticized the federal court ruling as well: “The Orthodox Union has long advocated for the principle that the holy city of Jerusalem is the eternal and indivisible capital of the State of Israel and the Jewish People. In this case, this principle is buttressed by the factual reality that Israel has made the modern city of Jerusalem its political capital. This fact has been recognized again and again by the United States Congress and duly enacted laws, even as such recognition has been practically unrecognized by the Executive Branch. The practice of the State Department to refuse compliance with the law is wrong and we will support the appeal of this ruling to the U. S. Supreme Court.”

The Jewish Council for Public Affairs has called for President Barak Obama to use his authority to undo the damage caused by the ruling. “The Court’s disappointing opinion allows the State Department to continue the unfair policy, treating those born in Jerusalem differently than all other foreign cities in which passports are issued,” said JCPA President Rabbi Steve Gutow.

Many Jewish organizations that lobbied Congress to pass the law to begin with have since submitted amici curiae briefs to the court on behalf of the Zivotofsky family, including the ZOA, Anti-Defamation League, Association of Proud American Citizens Born In Jerusalem, Israel, American Israel Public Affairs Committee, B’nai B’rith International, Hadassah, Jewish Council For Public Affairs, National Council of Jewish Women, National Council of Young Israel, Rabbinical Assembly, Union for Reform Judaism, Union of Orthodox Jewish Congregations of America and the Women’s League for Conservative Judaism. An amicus curiae educates the court on points of law that it might otherwise miss. They cannot be a party to the case, but must have some knowledge or perspective that makes her or his views valuable to the court.

Michael Wildes, former mayor of Englewood, New Jersey and an internationally renowned immigration lawyer tells JLBC that the ruling is “unfortunate” and says that in issuing its ruling, the Court has overlooked the fact that it, just as it asserts Congress did, also violated the separation of powers by concluding that it was the ultimate adjudicator with respect to the status of Jerusalem. This is unfortunate and hopefully as his lawyer stated, Menachem Zivotofsky will be able to have a U.S. passport listing Israel as his place of birth by his bar mitzvah.”

For Israel’s staunchest supporters, the ruling basically has refreshed an old outrage. Perhaps there are many detractors of Israel who welcome the ruling and view Congress’s law as an attempt to legislate U.S. policy with respect to Jerusalem. But did anything really change at all? U.S. policy on Jerusalem remains the same. While it has consistently recognized the State of Israel since independence was declared in 1948, the United States has refused to recognize any nation’s sovereignty over the holiest city in the world. And despite the Jerusalem Embassy Act of 1995, no president has moved the United States embassy to Jerusalem. And so as history would have it, the Jewish people have gone from wandering Jews to wondering Jews. Fifty thousand Americans born in Jerusalem still wonder what their official country of birth is.

For the sake of Zion, they will not be silent, and for the sake of Jerusalem they will not rest.

By Aliza Davidovit

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