Lawyer: If Obama Truly Believes Jerusalem Is Israel’s Capital, Why Does Admin Still Oppose Writing ‘Israel’ in Jerusalem-Born Americans’ Passports

When the Democratic National Committee hurriedly rewrote its campaign platform to reinstate a declaration that Jerusalem is the capital of Israel, Obama campaign officials took pains to emphasize that the president had himself intervened to reverse the original omission.

If as his surrogates profess President Obama believes Jerusalem is the capital of the Jewish state, then why does his administration insist on continuing its legal battle against a Jerusalem-born boy whose family wants his place of birth to be inscribed in his U.S. passport as “Jerusalem, Israel”? This is the question the lawyer for ten-year-old Menachem Binyamin Zivotofsky is asking in an op-ed he penned for the Jewish newspaper The Forward.

Washington lawyer Nathan Lewin writes:

Do the president’s deeds match his words? If he personally believes that Jerusalem is the capital of Israel, why is he contesting in court a modest recognition in American passports — validated in a law enacted by Congress — simply stating that Jerusalem is in Israel?

For the past nine years, an American-born couple now residing in Israel has been battling in the federal courts on behalf of their Jerusalem-born son to enforce a law that Congress passed overwhelmingly in 2002. The law directs the State Department to permit American citizens born in Jerusalem to identify themselves on their American passports as born in “Israel.”

The State Department’s rules regarding the “place of birth” entry on a passport require designation of the country of birth abroad, not the city where the passport-holder is born. Jerusalem and Israel are subject to unique rules. The State Department’s Foreign Affairs Manual instructs consular officers that they may not write “Israel” as the place of birth of an American citizen born in Jerusalem.

But out of consideration for the feelings of adversaries of Israel who were born within its 1948 borders, the State Department’s regulations permit anyone who is offended by being identified as born in Israel to list instead his or her city of birth. This web of regulations means that Palestinians born in Tel Aviv who do not want “Israel” on their passports may remove mention of that country. Jews born in Jerusalem (even at Shaare Zedek hospital, in western Jerusalem) may not, however, identify with the country they respect and admire.

Lewin explains that at the Supreme Court where the case – Zivotofsky v. Clinton – was heard, the Department of Justice “urged the Supreme Court to throw the case out of court because deciding whether Congress had the constitutional authority to require the State Department to permit such identification on a passport was a ‘political question.’” The Supreme Court rejected DOJ’s argument.

Both Republican and Democratic administrations have said they don’t want to prejudge peace talks by taking a stand on the issue of Jerusalem. Future negotiations between Israel and the Palestinians would be expected to address the question: Should Jerusalem remain united under Israeli authority or divided as a capital for Israel in the west and for Palestine in the eastern part of the city, which includes the Old City, the Church of the Holy Sepulchre, the mosque on the Dome of the Rock and the holiest site for Jews – the Western Wall?

An anti-Israel website in March expressed concern about the impact the case could have for Palestinian claims to Jerusalem as its capital (and threw in an Israel lobby libel to boot):

This case is scary. Not only would it set a precedent of sorts regarding Israeli sovereignty over Jerusalem, but it also would play directly into the [Israel] lobby’s hands if Congress is granted the power to conduct foreign policy.

TheBlaze and AP reported last year that 39 Democratic and Republican lawmakers came out against the Obama administration’s position and in support of the Zivotofsky family “defending a provision in a 2002 law that allows Israel to be listed as the birthplace for Americans born in Jerusalem.”

Attorney Lewin writes:

If Obama truly believes that Jerusalem is Israel’s capital, he should instruct his Department of Justice to halt its opposition to enforcement of a duly enacted law that does far less than recognize Jerusalem as Israel’s capital. Having resoundingly lost one battle in the Supreme Court to prevent American citizens from exercising the right explicitly conferred by Congress, the president need not risk a second loss in the lower federal courts over whether America may acknowledge that Jerusalem is in Israel.

The Supreme Court sent the suit back to the United States Court of Appeals, which must now rule if the Congressional provision should be followed or if the State Department is correct in believing a “Jerusalem, Israel” passport entry will interfere with President Obama’s authority “to recognize foreign sovereigns.”