The court decided: Menachem was born in Jerusalem, but not in Israel

It's been a while since I wrote about this case, but now, when it seems to be concluded, an update is due. It is the case of Menachem Binyamin Zivotofsky of Jerusalem and his parents, suing the government over its refusal to write is his passport that he was born in Israel. The bottom line is simple: for the time being, Zivotofsky lost.

The U.S. administration, as a matter of policy, is not willing to confirm that U.S. citizens who were born in Jerusalem were indeed born in Israel because, as was argued by the state's representative in court, the issue is "the subject of profound dispute" and Israel's claim to sovereignty over the city has never been decided. Zivotofsky petitioned the court based on a law passed by Congress in 2002 demanding that the secretary of state list Israel as the country of origin for U.S. citizens born in Jerusalem on passports (Record of Place of Birth as Israel for Passport Purposes - For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of 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). The administration refused to comply with this law.

As I wrote in the past, the crux of the issue at stake is not Jerusalem's political status, but rather the power of Congress versus the power of the president. Under the Constitution, the president is authorized "to receive ambassadors and other state officials" from foreign countries - hence the interpretation that the president has the power to recognize (or not) other states. And this lies behind the administration's disregard for the Congressional law.

Judge Gladys Kessler threw out the case for the second time after she was forced to reconsider after the first time by the higher court. But this was mainly for technical reasons. "Whether this, too, presents a political question depends on the meaning of § 214(d) - is it mandatory or, as the government argues, merely advisory?" the courts stated.

Kessler still believes the case concerns a political question that can not and should not be resolved by the courts. "Resolving his claim on the merits would necessarily require the court to decide the political status of Jerusalem", she writes. This has been her position before: "the issue before the Court is a nonjusticiable political question and that the Court therefore lacks jurisdiction".

When the 2002 legislation was signed into law by President Bush, he added a statement attached to it, in which he made his disagreement with the Jerusalem part of it clear enough. The law, he wrote, "impermissibly interfere with the president's constitutional authority to formulate the position of the United speak for the nation in international affairs, and determine the terms on which recognition is given to foreign states". He also wrote that his policy toward Jerusalem hasn?t changed, meaning exactly what the state Department has been doing since: ignoring the wishes of congress.

Josh Gerstein of the NYSun was quick enough to be the first to report this new development in the courts. Clearly, the last word hasn't been said in this case, as Nathan Lewin, the attorney of the family stated that "This is an issue that will have to be resolved by the court of appeals".

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