September 13, 2011
Ari Zivotofsky was born in Jerusalem. He is a United States citizen by virtue of his parents’ citizenship. Ari’s parents applied for a United States passport and a Consular Report of Birth for Ari at the United States embassy in Tel Aviv. They unsuccessfully requested that both documents record their son’s place of birth as “Jerusalem, Israel.” State Department policy permits the recording of “Jerusalem.” But it prohibits the addition of “Israel,” because that entry would result in “Jerusalem, Israel” appearing on these government-issued documents. The United States has never articulated an official view on the unsettling issue of whether Jerusalem is a part of Israel. Its unwavering neutrality on Jerusalem’s status has been a central feature of American policy since Israel achieved statehood.
Congress enacted the United States Policy with Respect to Jerusalem as the Capital of Israel Act in 2002, the year of Ari’s birth. Its members directly challenged presidential neutrality on the status of Jerusalem. For requests like the Zivitofsky’s, Congress demanded that the State Department record the place of birth as “Jerusalem, Israel.” Congress also urged President George W. Bush to relocate the United States embassy from Tel Aviv to Jerusalem—an act which House Speaker Newt Gingrich then characterized as an overdue recognition of Israel’s de facto sovereignty over all of Jerusalem.
Adding to the confusion, President Bush signed this veto-proof bill into law, although his signing statement characterized the legislation as being merely advisory. Bush therein cautioned that this congressional demand on the executive branch impermissibly interfered with the president’s power to remain neutral on the issue of Jerusalem’s status. Bush emphasized that the Jerusalem as Capital of Israel legislation did not change the six-decade, hands off policy of the United States. He claimed that this recognition issue is governed by the Constitution—and that the express presidential power to recognize foreign governments impliedly resolves whether he must recognize Jerusalem as being within Israel, and whether it is Israel’s capital.
Ari’s parents dragged the judicial branch into the fray. They sued Secretary of State Hillary Clinton, seeking a court order requiring Clinton to comply with the Jerusalem as Capital of Israel legislation. The lower federal courts dismissed the Zivitofsky’s complaint on various grounds, such as the judicial branch not possessing the power to involve itself in recognition matters committed to the executive branch by the United States Constitution. Another justification for dismissal was that such disputes are committed to the political branches of the government, rather than the judicial branch. The Supreme Court recently decided to review the opposing legislative-executive positions, given that Clinton was not complying with the congressional directive to list Ari’s place of birth as “Jerusalem, Israel.” The Court will consider this incredibly sensitive issue during its new term commencing in October.
The Jerusalem as Capital of Israel legislation spawned intense criticism abroad. That no nation maintains an embassy in Jerusalem (as opposed to consulates) suggests the scale of international opposition to this legislation. Palestinians especially resented the anything but neutral congressional embrace of Israel’s sovereignty over all of Jerusalem. When Israel annexed all of Jerusalem in 1980, the United Nations General Assembly resolved that this was an illegal assumption of sovereignty over the entire city. About 100 nations have recognized Palestine, often in varying degrees short of de jure statehood. Further support for the Palestinian position will likely surface in the United Nations General Assembly to New York City in September. The Palestinian Authority has announced its intent to then declare de facto statehood. Israel threatens to respond by also annexing the West Bank as sovereign Israeli territory. Palestinians could one-up Israel by claiming to secede from their new mother state.
The above tit-for-tat geopolitics will feature robust political theater in the just off-Broadway United Nations stage. Congress will deserve a curtain call for its supporting role. While its legislative joker will not steal the show, the Jerusalem as Capital of Israel legislation has placed the president in a more vulnerable position. Congress tainted the United States’ position as an honest broker in this ever-sensitive Middle East conflict. It provided legislative cannon fodder for the emergent perception that the United States—Israel’s number one ally—intends to debunk the “Jerusalem, Israel” neutrality policy adopted by every president since Harry Truman. Each of them has unfortunately been sidetracked by major domestic or international distractions, thus marginalizing the sustained focus necessary to end this key Arab-Israeli conflict. The Jerusalem as Israel’s Capital legislation added to the distractions that Presidents Bush and Obama have encountered, while pursuing an integrated United States approach to the Middle East conundrum.
One hopes that the highest court in the land will neutralize the above “Jerusalem, Israel” legislation by rejecting the Zivotofsky case against the State Department. This case will be uniquely politicized, assuming Palestine decides to go forward with its September statehood declaration. That turn of events will occur not long before the Supreme Court rules on the Zivotofsky governmental balance of power issue. In any event, Ari’s claim is premised upon an unwarranted congressional intrusion into the presidential executive power to recognize foreign entities. That governmental power will hopefully be characterized as falling within the sole province of the executive branch of our government. We cannot afford to speak with multiple voices in such critical affairs of state.
William R. Slomanson