The case, involving a young Israeli-American, could serve as a landmark in Israeli-Palestinian relations.
Eight-year-old Menachem Binyamin Zivotofsky has dual American and Israeli citizenship, yet carries an American passport that designates “Jerusalem” as the country of his birth.
The State Department — bowing to ongoing negotiations between Israel and Palestinians over the status of the once-divided city — has resisted all appeals by young Zivotofsky’s parents (and their persistent lawyers) to have the passport designation of “country of birth” changed to “Israel.”
“The status of Jerusalem is one of the most sensitive and long-standing disputes in the Arab-Israeli conflict,” the US government writes in its contention before the US Supreme Court.
The government solicitation also states that the American government would rather not use this case — a dispute over words in a passport — to signal its preference for one of the disputants in this sensitive negotiation.
America’s official recognition of who “owns” Jerusalem — considered the birthplace of the world’s three greatest religions, Judaism, Christianity, and Islam — is an issue that has been continually debated by US political leaders.
American diplomats, however, believe a final decision in the matter is best left to the people with a direct vested interest: Israelis and Palestinians.
Occupied equally by Israel and Jordan after the Jewish state was established in 1948, Jerusalem fell under Israeli control after the 1967 war. Soon after, Israel asserted its sovereignty over the ancient city designating it as its capital.
The US, in a move symbolizing its neutrality, has steadfastly retained its embassy in Tel Aviv — a decision shared by a majority of foreign diplomatic missions to Israel. However, the US maintains a very active consulate in Jerusalem, which is where all Israel’s government agencies — including the Knesset and Foreign Ministry — are located.
Nine years ago, Congress officially declared its support of Israel’s claim to Jerusalem by approving an amendment to the Foreign Relations Act that declared any American born in Jerusalem could say their place of birth was in the State of Israel.
Then-President George W. Bush signed the amendment into law, but also issued a decree that stated it would not change US Mideast policy (nor State Department passport procedures) because the congressional measure “impermissibly interfere(s) with the president’s constitutional authority to formulate the position of the United States.”
Bruce Fein, a lawyer and constitutional scholar with the Washington-based Litchfield Group, sees the obvious contradictions in Bush’s handling of the congressional action as a baffling example of an all-too-frequent situation “where the President signs a bill from Congress, but says it is unconstitutional.”
Fein — author of “American Empire”, a book-length analysis of how America has lost sight of its more humble foreign policy principles — says that the court’s decision in this case could not only redefine US policy towards Israel, but could also shift some foreign policy decision-making power from the president to the US Congress.
“If the Congress uses this case to effectively order the president, by statute, to acknowledge the birth of a child born in Jerusalem as having occurred in Israel, then, surely, it could order the president, I would think, to transfer the US Embassy from Tel Aviv to Jerusalem as well, ” says Fein.
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