No Place Like Home

‘Naomi Zivotofsky and her husband are American citizens. Their son is a US citizen, born in Jerusalem. His passport gives no country of birth’

Israel Jurisprudence US Politics

Shaare Zedek is Jerusalem’s only major, centrally located hospital. Founded in 1902 and named after the biblical expression “gates of righteousness”, the medical and research centre moved in 1979 to an 11-acre campus opposite Mount Herzl, several miles to the west of the Old City and on land that has been Israeli territory since 1948. 

Nine years ago, Naomi Zivotofsky gave birth to a boy at Shaare Zedek. She and her husband Ari are American citizens by birth. Their son, whom they named Menachem, is therefore a US citizen. When Menachem was not quite three months old, Mrs Zivotofsky went to the US embassy in Tel Aviv and applied for his first passport. This records, simply, that Menachem was born in Jerusalem. It gives no country of birth.

Some people would not have given this a second thought. After all, Menachem has his passport and it accurately names his city of birth. But the Zivotofskys are made of sterner stuff. On November 7, their counsel will tell the US Supreme Court that the place of birth recorded in Menachem’s US passport should be Israel. Their legal action, launched eight years ago, names the US Secretary of State, Hillary Clinton. But the litigation has much broader implications, calling into question the powers of President Obama himself.

A couple of weeks before Menachem was born, the US Congress enacted legislation dealing with this very question. Section 214 of the Foreign Relations Authorization Act for Fiscal Year 2003 refers to US citizens born in Jerusalem, directing the Secretary of State, on request, to record their place of birth as Israel. But section 214 has a more political aspect. It also “urges” the president “to immediately begin the process of relocating the United States Embassy in Israel to Jerusalem”. 

The US maintains a consulate in Jerusalem to handle relations with the Palestinians. But its embassy remains firmly in Tel Aviv. When the legislation was passed in 2002, President George W. Bush declared that it “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs”. 

Those unfamiliar with the US constitution may find it strange that the president may veto, or simply ignore, an act of Congress. Yet Congress is not sovereign; its powers are shared with the executive branch of government and disputes are ultimately settled by the Supreme Court.

The Zivotofskys’ argument is well set out in a 57-page written submission to the court by the couple’s lawyer, Nathan Lewin. He accepts that the US president has been given great flexibility by Congress in international relations. But, he continues, “this is the unusual case in which, on a subject that calls for no emergency treatment, Congress decided that an executive branch policy implemented by Department of State bureaucrats for several decades was unjust and discriminatory. Congress overwhelmingly enacted a narrow law that gives approximately 50,000 American citizens born in Jerusalem the right to have their passports bear the same ‘place of birth’ as those born in Tel Aviv or Haifa. To these Americans, personal dignity and conscientious conviction calls on them to identify themselves as born in ‘Israel’.”

In response, the US State Department says the case raises a “non-justiciable political question”. Even if the question is justiciable, the government continues, section 214 impermissibly infringes the president’s power to recognise foreign sovereigns. The State Department points out that, since 1948, US policy has recognised no state’s sovereignty over Jerusalem. Doing so now would harm national security interests and “irreversibly damage” the peace process.

Lewin dismisses the State Department’s argument that the court is being asked to decide the status of Jerusalem. “Jerusalem’s status for US foreign-policy purposes is not affected by whether Jerusalem-born citizens are allowed to record ‘Israel’ as their place of birth,” he says. “A citizen’s place of birth is recorded in his or her passport only to facilitate identification.”

Not so, says the State Department: “A passport is an official instrument of foreign policy through which the United States addresses foreign nations…The description of a citizen’s place of birth in passports operates as an official statement of whether the United States recognises a state’s sovereignty over the relevant territorial area.”

Clearly, both sides are motivated by political considerations. But there is no getting round the fact that Menachem was born in Israel. The sensible thing for the US to have done in 2002 would have been to have implemented the passport provisions in the legislation. If the State Department had told the world it had no choice, there is little the Palestinians could have done about it — assuming they had even noticed that more American mothers were choosing to give birth in Israel.