The Zivotofsky Passport Case 

For us, as Jews, the easiest question in the world is: “Name the capital of Israel.”  The answer is so obvious that it need not even be stated here.

Dr. Ari Zivotofsky is one of the most interesting Jewish minds in the world. Born in New York and educated in Long Island, he studied for rabbinical ordination, and also is a certified shochet (kosher-meat slaughterer). He holds a Ph.D. in Biomedical Engineering, a masters in math, another masters in Jewish history, and he did a four-year post-doctorate at the National Eye Institute of the National Institutes of Health. He is a wonderful writer, a captivating speaker, and he writes about the most interesting and variegated of topics. Indeed, he is one of the world’s greatest experts on the laws and traditions of kosher and non-kosher animals, even having traveled to Iraq to study a kosher fish that the Talmud states tastes like pork.  Dr. Zivotofsky made aliyah, moving to Israel with his family, in 2000.

But this story is not about him. It is about his little baby boy, Menachem Binyamin, born in October 2002 in the city of Jerusalem. As the son of an American family, little Menachem is an American citizen and has a United States passport.  The passport lists his birthplace as “Jerusalem.”  Notably, Menachem’s passport omits the country where Jerusalem is located, his birth country.

Only a few months earlier, the U.S. Congress had passed a law that, if the parents of an American baby born in Jerusalem make such a request, the baby’s passport must state that Jerusalem is in Israel.  Pub.L. 107-228, 116 Stat. 1350, § 214(d): “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 State Department opposed the law, as did President George W. Bush, arguing that such a rule would interfere with the executive branch’s conduct of America’s foreign relations.

When the American government refused to designate “Israel” as the country of the Jerusalem-born baby’s birth, the Zivotofskys sued in United States district court.  The trial court ruled against them, stating that the issue was “political” and therefore not subject to a judicial determination.

However, on appeal, the U.S. Circuit Court reversed, holding that the issue transcended politics and centered on the validity of the Act of Congress.

Nevertheless, after another round of judicial jostling, those courts ultimately agreed that the case was asking judges to determine the political status of Jerusalem, and they refused.

The Zivotofskys appealed to the Supreme Court of the United States (SCOTUS), and SCOTUS ruled that the courts indeed had authority to rule on whether Congress had authority to legislate a mandate to the executive branch requiring passports of Jerusalem-born babies to record Israel as their country of birth if the parents so requested. Thus, the whole case returned to the trial court level to start all over again. By the time the case returned to the U.S. Supreme Court for final adjudication in 2015, President Barack Obama and Secretary of State John Kerry now were fighting the Zivotofskys, refusing to allow the word “Israel” to be inserted into the passport of Menachem, who now was approaching his bar mitzvah.

In a 6-3 split decision, the Court held in Zivotofsky v. Kerry, 576 U.S. __ (2015) that Congress does not have the power to mandate how the President and the State department conduct foreign policy. Only the executive branch can declare Jerusalem the capital of Israel, and can order the word “Israel” to be included in passports for people born in Jerusalem. In their dissents, Justices Roberts, Alito, and Scalia would have held that the Constitution does not preclude Congress from recognizing foreign nations. However, they were outvoted by Justices Sotomayor, Thomas — and the three Jewish justices (Ginzburg, Kagan, and Breyer).

If newly elected President Donald Trump ultimately honors his promise to move America’s Israel embassy to Jerusalem — or, at least, to declare formal United States recognition of Jerusalem as the capital of Israel — that alone would enable Menachem Binyamin Zivotofsky finally to have his country of birth included in his American passport. Otherwise, the mystery will continue for those who cannot answer the question with which this discussion began.

Rabbi Dov Fischer, Adjunct Professor of Advanced Torts law, the Law of Remedies, and the Law of California Civil Procedure at UCI Law School and at Loyola Law School, is former Chief Articles Editor of UCLA Law Review and is Rav of Young Israel of Orange County. Rabbi Fischer clerked for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit and is Senior Rabbinic Fellow at the Coalition for Jewish Values.

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