The Real U.S. Power Struggle Behind the ‘Jerusalem, Israel’ Passport Case

Could a Supreme Court ruling suddenly open the door for Congress - way more pro-Israel than the White House - to play a more assertive role in foreign affairs?

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View of the city of Jerusalem.
View of the city of Jerusalem.Credit: Michal Fattal

It’s none too soon to start thinking about the implications of a victory in the United States Supreme Court by Menachem Binyamin Zivotofsky. He is the 12-year-old American boy who is suing U.S. Secretary of State John Kerry for a passport saying that he was born in Israel. Kerry doesn’t want to issue such a passport because Zivotofsky was born in Jerusalem. In 2002, however, Congress passed a law saying the U.S. State Department must issue the lad precisely the passport he wants, and he’s before the Supreme Court seeking to enforce the law.

The nine justices are scheduled to hear the case November 3. It’s the second time it has been before them. The first time, the government tried to palm off on the court the idea that the question of Jerusalem was a political matter beyond the reach of the judiciary. The justices made short work of that sophistry. It declared that Zivotofsky was not asking the court to settle the political matter, merely to clear up whether the constitution made the president or the Congress the right institution to settle it.

The lower courts insisted it was the president. Now Zivotofsky is back, asking the Supreme Court to overturn the lower circuit and uphold a law Congress passed in 2002 giving Zivotofsky his right to an official document listing Israel as his birthplace. All the experts think the lad will lose, but all of them insisted he wouldn’t get this far to start with. I don’t know whether he’ll lose, but either way it’s going to be a significant moment in the centuries long struggle between president and Congress over who is supreme in foreign affairs.

There are those, including Zivotofsky’s legendary legal counsel, Nathan Lewin, who insist this is much ado about little. What Lewin means is that notwithstanding the fears of the State Department (under both Republican and Democratic presidents), the case is really about the wording of one lad's passport. His suggestion is supported in a remarkable friend-of-the-court brief filed by a group of law professors on behalf of the Louis D. Brandeis Center for Human Rights Under Law, which seeks to advance the rights of the Jewish people.

The professors include Eugene Kontorovich, who once worked for the Forward, now lives in Israel, and has emerged as a kind of one-man legal lawfare brain-trust for the Jewish state. They argue the case “lends itself to a much simpler resolution than would a true dispute between the president and Congress regarding the powers to recognize the legal status of states and foreign sovereigns.” They’ve discovered an “official repository of foreign place-name decisions approved by the U.S. Board on Geographic Names.”

Jerusalem, they report says, is officially listed as in “Israel.” It bears a conventional name designation and the “Unique Name Indentifier 13535646.” The Board of Geographic Names also approves of the Unique Name Identifier 13535647, or “Yerushalayim.” Since these names are identified as in Israel and “provided for the guidance and use by the Federal Government” by an agency of the government itself, how can Congress not be entitled to pass require that Israel be the birthplace listed on young Menachem Binyamin Zivotofsky’s passport?

The nine judges could spurn that argument, but it looks like jump ball. So what are the implications? Zivotofsky’s passport, after all, is not the only point of friction between the White House and the Congress in respect of Israel. There’s also the question of moving the embassy to Jerusalem. Senators of both parties vowed to fix that in the 1990s, but at the last minute, courtesy of Senator Dianne Feinstein, they provided a loophole — a waiver it’s called — through which Presidents Clinton, Bush, and Obama have avoided moving the embassy.

Could a victory by Zivotofsky reopen the question of moving the embassy? Could it suddenly open the door for the Congress to play a more assertive role in foreign affairs? The Congress already has the power to declare war, raise an army, to provide for a Navy, grant letters of marque and reprisal, regulate commerce with foreign nations, and give, via the Senate, the thumbs up or down on treaties. The Congress is way more pro-Israel than the White House. If — a big if, for sure — the GOP takes the Senate and Zivotofsky wins, the implications could be huge.

Seth Lipsky is editor of The New York Sun. He was a foreign editor and a member of the editorial board of The Wall Street Journal, founding editor of The Forward and editor from 1990 to 2000.