For nearly nine years, judges in Washington have skirted around a conflict between Congress and the White House that touches a divisive foreign policy issue: the status of Jerusalem.
Ari and Naomi Zivotofsky, the American parents of a boy who was born in Jerusalem in 2002, sued the U.S. State Department over its refusal to allow “Israel” as the place of birth on the child’s passport, kicking off a case that grabbed the attention of Congress and the U.S. Supreme Court.
A federal trial judge in Washington dismissed the suit in September 2007. The U.S. Court of Appeals for the D.C. Circuit later said the complaint raised a political question that the court declined to answer. Then, in March, the Supreme Court overturned the D.C. Circuit, sending the case back to that court for a resolution on the substance of the dispute.
The tug of war is playing out now in the appeals court, where members of Congress, represented by Gibson, Dunn & Crutcher, and a host of American Jewish groups have joined the fight against the State Department. The dispute could clarify the roles the executive and legislative branches play in foreign affairs. At the center of the case: the passport belonging to a boy named Menachem Zivotofsky, who turns 10 in October.
“This is a big separation of powers case,” Nathan Lewin, the attorney for the Zivotofskys, said in an interview last week. “Is Congress’ statute constitutional in light of the president’s claim he can trump Congress on any question of foreign policy?”
Federal law gives U.S. citizens born in Jerusalem the option to designate “Israel” as the place of birth on a passport. President George W. Bush signed the law in September 2002. But, at the same time, he said in a so-called “signing statement” that the law interferes with the president’s power to conduct foreign affairs. That amounted to an effective veto, Lewin said.
The United States, which maintains its embassy in Israel in Tel Aviv, does not recognize any country as having sovereignty over Jerusalem. U.S. Justice Department lawyers representing the State Department in the litigation said the government “has endeavored to maintain a strict policy of not engaging in official actions that might be perceived as constituting such a recognition.” The boy’s passport lists his place of birth as simply “Jerusalem,” rather than “Jerusalem, Israel.”
Lewin of Washington’s Lewin & Lewin, who argued in the Supreme Court for the Zivotofskys against Solicitor General Donald Verrilli Jr., said the D.C. Circuit does not need to address which branch of government has control of foreign affairs.
Rather, Lewin said, the appeals court can uphold the law in question under the authority of Congress to regulate passports. A ruling in favor of the Zivotofskys, he said, does not amount to a judicial determination of the status of Jerusalem.
“This is simply an exercise of passport power,” Lewin said. “Congress has power over passports.”
To that end, Lewin is using the Supreme Court’s decision in June in the Affordable Care Act cases to argue his point. In one of the decisions, the high court affirmed the law’s key provision, the individual mandate, in part by saying the penalty for the refusal to buy health insurance is a lawful exercise of congressional power to levy taxes. The law, however, did not call the penalty a tax.
The passport law, which Congress approved in 2002, came under the title “United States Policy with Respect to Jerusalem as the Capital of Israel.” Lewin said he wants the D.C. Circuit to buy into the notion that the label Congress gives a law does not control its constitutionality. That’s a lesson from the Supreme Court ruling on the legality of the health care legislation, he said.
EXECUTIVE BRANCH POWERS
The main thrust of the Supreme Court ruling in March in the Zivotofsky dispute was that the judiciary is in position to rule on the constitutionality of the passport law itself without making a foreign policy decision. The court ruled, 8-1, with Justice Stephen Breyer in dissent.
Verrilli argued in November that the high court should not permit the suit to move forward, saying that the executive branch has exclusive power over the recognition of foreign countries.
“The Constitution commits that power exclusively to the executive, and neither a court nor the Congress can override that judgment,” Verrilli said in court.
Justice Samuel Alito Jr. pointed out at oral argument that Congress can use any number of means to frustrate the president’s decision to recognize another country. Congress could, for example, Alito said, decide not to dedicate funding for an embassy. Congress also could refuse to confirm the nomination of an ambassador, he said. Alito also said Congress has for a long time exercised authority over the contents of passports.
“This is a situation in which the country has to speak with one voice, and the executive has determined what the country should say,” Verrilli told the justices.
Numerous American Jewish groups are backing the Zivotofskys in the fight in the D.C. Circuit. A team from Greenberg Traurig, including appellate litigator Elliot Scherker, represents the American Jewish Committee. Robert Kidwell, a partner in the Washington office of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, is counsel of record for a coalition of organizations, including the Anti-Defamation League and the American Israel Public Affairs Committee.
Kidwell said in court papers that the designation of “Israel” as the place of birth is a ministerial act that does not take any control away from the State Department.
In a brief, Kidwell said it’s only speculation that “if Jerusalem-born American citizens are allowed to record Israel as their country of birth on their United States passports, protests in the Middle East will interfere with American foreign policy.”
Gibson partner Theodore Olson, co-chairman of the firm’s appellate and constitutional law group, this month filed a brief on behalf of more than 60 members of Congress — including Senator Carl Levin (D-Mich.) and Senator Jon Kyl (R-Ariz.) — who are supporting the Zivotofskys.
Government agencies, Olson said in a brief, regularly refer to Jerusalem as a city in Israel “in the course of routine rulemaking, from the workings of the U.S. mail to foreign trade. When they do so, they do not purport to dictate recognition policy.”
Lewin described as “nonsense” any concern about potential backlash in the Middle East if the appeals court allows Jerusalem-born Americans to identify “Israel” on passports.
“The State Department has managed to hoodwink the White House that this is a matter of great foreign policy concern,” Lewin said. He added, “Is Jerusalem in Israel? Of course it’s in Israel.”
Mike Scarcella can be contacted at firstname.lastname@example.org.