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Passport Control- An Examination of U.S Policy on Jerusalem

Passport Control- An Examination of U.S Policy on Jerusalem

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According to the Foreign Relations Authorization Act of 2003, U.S citizens born in Israel should have their birthplace read Jerusalem, Israel, on their passports. But when American citizen and Jerusalem born Menachem Binyamin Zivotofsky applied for a passport, his birthplace was listed as Jerusalem, with Israel left out. This article examines the legality of such an omission.
According to the Foreign Relations Authorization Act of 2003, U.S citizens born in Israel should have their birthplace read Jerusalem, Israel, on their passports. But when American citizen and Jerusalem born Menachem Binyamin Zivotofsky applied for a passport, his birthplace was listed as Jerusalem, with Israel left out. This article examines the legality of such an omission.

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Published by: Jerusalem Center for Public Affairs on Apr 03, 2014
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Passport Control: An Examination of U.S. Policy on Jerusalem
 
Michal Navoth, November 7, 2013 On September 30, 2002, President George W. Bush signed into law the Foreign Relations Authorization
Act, Fiscal Year 2003 (―ACT‖).
1
 
Its section 214 is entitled: ―UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.‖ Section 214(d) is the provision at issue
and it stipulates: (d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES.
 – 
 For purposes of the registration of birth, certification of nationality, issuance of a passport of a United States citizen born in the
city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen‘s legal guardian
, record the place of birth as Israel.
2
 An American citizen, Menachem Binyamin Zivotofsky was born in Shaare Zedek in western Jerusalem in October 2002, just a few weeks after the Act was enacted. His parents, Americans citizens, invoked the new Act. His mother applied for a United States passport for Zivotofsky, inscribing his place of birth as
―Jerusalem, Israel.‖ The State Department issued a passport in Zivotofsky‘s name but listed his birthplace as merely ―Jerusalem.‖ The Secretary of State did not enf 
orce the provision, claiming that it impermissibly
infringes on the President‘s exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations. On September 16, 2003, Zivotofsky, ―by his parents an
d
guardians, Ari Z. and Naomi Siegman Zivotofsky,‖ sued to compel the Secretary to comply with the Act.
3
 
For almost a decade, the litigation has been ―up and down the appellate ladder.‖
4
 A unanimous three-judge panel of United States Court of Appeals for the District of Columbia Circuit
(―court‖) ruled on July 23, 2013 in the case of
 Zivotofsky v. Sec’y of State
(―judgment‖)
5
 that it agreed with
the Secretary‖…and therefore hold that section 214(d) is unconstitutional.‖
6
 The purpose of this survey is to review the judgment in relation to three aspects: 1. Without delving into the broad issue of separation of powers, can the United States President pursue a  policy contrary to a statue enacted by United States Congress? 2. Designation of place of birth on passports is neither tantamount to the establishment of foreign policy nor to its implementation. 3. Even if the case raises the question of foreign affairs, which in our opinion it does not, in contrast to what was noted by the court, the Executive branch
 policy toward Jerusalem has not always been ―a consistent policy of neutrality.‖
 
1. Can the United States President pursue a policy contrary to a statue enacted by United States Congress?
The court first addresses the issue of the President‘s recognition p
ower and refers to the argument made by the Secretary, the appellee. In support of his view that the recognition power is held exclusively by the President, the Secretary cites Article II, Section 3 of the Constitution, which provides,
inter alia
, that the
President ―shall receive Ambassadors and other public Ministers.‖
7
 
The court points out rightly that ―…the
fact that the President is empowered to receive ambassadors, by itself, does not resolve whether he has the exclusive authority to recognize foreign
nations…‖
8
 It should be noted that the American Constitution does
 
not endow the ―foreign affairs‖ power to the President nor to any other branch. In fact, the Constitution makes no reference to ―foreign affairs.‖ Nevertheless, it has long been established
 that the President has a special role in the conduct of foreign affairs.
9
 Similarly, the Constitution makes no reference to recognition. Historically, presidents have made decisions concerning recognition, beginning with President George Washington.
10
 The
court relies also on precedents of the Supreme Court. The latter declared ―more than once‖ that the recognition power lies exclusively with the President.
11
 Among the cases mentioned, the court refers to
 Belmont
and to
 Pink.
12
 Although the court was aware of the difference between
 Pink
and
 Zivotofsky
, it concluded that the difference does not distinguish the two cases: [u]nlike in
 Pink 
, here the legislation that conflicts with the President‘s recognition power was enacted by
the Congress, not a state. But, as we today hold, the President exclusively exercises the recognition power. The Congress, like a state, may not impermissibly intrude on an
exclusive
Executive power. Contrary to
Zivotofsky‘s assertion, then, the fact that the Congress, rather than a state legislature, enacted section
214(d) does not distinguish this case from
 Pink 
.
13
 The court concludes by saying: [h]aving reviewed t
he Constitution‘s text and structure, Supreme Court precedent and longstanding post
-ratification history, we conclude that the President exclusively holds the power to determine whether to recognize a foreign sovereign.
14
 In another context, while referring to
 Belmont
and to
 Pink,
Prof. Halberstam observed: ―None involved a conflict between Congress and the President.‖
15
 Her following paragraph also pertains to our question: The Supreme Court has never held that Congress could not exercise one of its constitutional powers
 because doing so would interfere with the President‘s powers over the conduct of foreign affairs…The
Court has held the converse: that Presidential action, which might have been constitutional if Congress had not acted, was unconstitutional
 because it was inconsistent with legislation enacted by Congress…
16
 
The court cites Justice Jackson‘s
17
 concurring opinion in
Youngstown Sheet & Tube Company v. Sawyer (Youngstown).
18
 
In
Youngstown
―Justice Jackson set forth a tripartite framework for eva
luating the
President‘s powers to act depending on the level of congressional acquiescence.‖
19
 The court mentions that  both parties agree that the case of
 Zivotofsky
 falls into the third category in the above framework, which stipulates: [w]hen the President takes measures incompatible with the expressed or implied will of Congress, his  power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter.‖
20
 It is also worthwhil
e quoting another sentence of Justice Jackson‘s in
Youngstown,
which has become the classic statement on the scope of executive-legislative power.
21
 He wrote:
[w]hile the Constitution diffuses power the better to secure liberty…[I]t enjoins upon its branch
es separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.
22
 Had the court in the
 Zivotofsky
 case considered that quotation too, it might have concluded differently.
Although, as mentioned above, the court made its conclusion after ‖[h]aving reviewed,‖ among others, ―Supreme Court precedent,‖ again at the level of Federal Appeals Court,
23
 our question regarding a situation where the Pr 
esident‘s power does not conform to a legislation enacted by the Congress has not  been answered conclusively on the basis of Supreme Court‘s precedents.
 
 
2. Designation of place of birth on passports is neither tantamount to the establishment of foreign policy nor to its implementation
The court agrees that Congress has authority, although not an exclusive one, to regulate passports.
24
 Yet the question the court examines is whether the particular exercise of that authority, Section 214(d), which
refers only to passports, intrudes upon the Executive‘s recognition power.
 In our opinion,
 Zivotofsky
 rightly points out that nothing in Section 214(d) requires the Secretary to list
―Israel‖ as the place of birth for all Jerusalem
-born American citizens. Rather, it merely enables such a designation for those who so request.
25
 
 Zivotofsky
 further asserts that Section 214(d) simply regulates the form and content of a passport.
26
In a concurring opinion filed by Circuit Judge Tatel, he writes:
[w]hat makes this case difficult is that Zivotofsky is partly right. As the Secretary concedes…a primary
 purpose of the place-of-birth field is to enable the government to identify particular individuals
 — 
e.g., by distinguishing one Jane Doe from another born the very same day.
27
 
Judge Tafel continues: [t]hat the Secretary‘s policy is about identification and personal identity, however,
does not mean that it does
not also implicate recognition. In fact, it clearly does.‖
28
 In that respect, Judge Tafel as well as the court differ from
 Zivotofsky
. According to
 Zivotofsky
, the designation of a place of birth does not convey any political message nor does it interfere
with the President‘s recognition power.
 Zivotofsky
 
is convinced that listing ―Israel‖ as his birthplace will not result in adverse foreign policy consequences and will not harm the American national interests. Zivotofsky is based on United States‘ own
experience as was evident in the case of Taiwan.
29
 
In 1994, Congress passed a law directing that ―Taiwan‖ be recorded, on request, as the birthplace of
American citizens born in Taiwan. It was accepted by the State Department, even though United States did no
t, by that date, recognize Taiwan‘s sovereignty, choosing instead to view Taiwan, for foreign policy reasons, as part of the People‘s Republic of China. The State Department issued the following statement:
 Although Taiwan may be listed as a place of birth in passports, the United States does not recognize
Taiwan as a foreign state. The U.S. recognizes the government of the People‘s Republic of China as the
sole legal government of China, and it acknowledges the Chinese position that there is only one China and Taiwan is part of China.
30
 
The court tries to differentiate the ―Jerusalem question‖ from the ―Taiwan issue‖ and makes the following remark: ―[t]he State Department included ‗Taiwan‘ on passports only after determining that doing so was
consistent with United States policy that Taiwan is a part of China; by contrast, section 214(d) is
inconsistent with the United States‘s policy of neutrality regarding Jerusalem.‖
31
 However, there is a similarity between the two. In both cases, the State Department was
requested
to record on passports of American citizens a birthplace it does not recognize as sovereign. The State Department
recognizes no sovereign‘s claim to Jerusalem and the United States recognizes Taiwan as an area within
China. The fact that United S
tates pursues a policy of neutrality regarding Jerusalem or a ―policy that Taiwan is a  part of China‖ does not matter. For our purposes, what is important is that merely listing a birthplace on
 passports does not equal a formal recognition of sovereignty; thus it has no effect whatsoever on American foreign policy, be that a policy of neutrality or taking sides with one of the parties involved.

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