June 22, 2014 — New York, New York
For the third time AJC has filed an amicus brief in support of a Jerusalem family seeking to list Israel as their son’s place of birth in his U.S. passport. The case, Zivotofsky v. the Secretary of State, will be considered by the U.S. Supreme Court in the fall. “The central issue is whether Congress or the President has a role to play in recognition of foreign governments and who has the constitutional prerogative to determine rules on issuing passports,” said AJC General Counsel Marc D. Stern. “The historical record is crystal clear that Congress has an important role to play in determining America’s decision on recognition of foreign governments and in setting passport policy. The AJC brief details the history of U.S. law governing passports and recognizing foreign governments. “From the ratification of the Constitution through the present, Congress has consistently exercised legislative authority over recognition and passports, and the President has carried out its directives,” states AJC. In an earlier decision, the Supreme Court ruled that the Court of Appeals needed to decide whether the President must follow a congressional directive to list “Israel” in the passports of Americans born in Jerusalem. The Appellate Court then decided that only the President has the constitutional authority to make that decision. The Supreme Court this past spring decided to review that ruling. The provision at issue is Section 214(d) of the 2003 Foreign Relations Authorization Act, legislation supported by AJC. The measure states that when a U.S. citizen is born in Jerusalem, “the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” Based on that legislation, after their son Menachem was born in Jerusalem nine years ago, the Zivotofskys were surprised when the State Department turned down their request to list “Israel” as the country of birth in his passport. “Congress has deliberated and has concluded that United States citizens born in Jerusalem should be permitted to identify their place of birth as Israel,” concludes the AJC brief. “The President may disagree with that decision, but it falls squarely within long-recognized areas of congressional authority, and infringes no plenary zone of executive authority.” President George W. Bush, shortly after signing the law, directed the State Department not to enforce it, asserting that the Executive Branch determines relations with foreign countries, and this stance has continued under President Obama. “An American passport, not the current and future status of Jerusalem, is the core issue in the Zivotofsky case,” said Stern. “There is no question that Section 214(d) is constitutional and should be upheld by the Supreme Court.” The AJC brief was prepared by Gregory E. Ostfeld of the law firm Greenberg Traurig, LLP.