Jerusalem-Born Can’t|List ‘Israel’ on Passports

(CN) - The D.C. Circuit struck down an unenforced law allowing American citizens born in Jerusalem to list "Israel" as their birthplace on passports.

Section 214(d) of the Foreign Relations Authorization Act of 2003 requires the secretary of state to record "Israel" as the birthplace on passports of U.S. citizens born in Jerusalem who request it.

The secretary has not enforced this provision, however, believing that it overlaps with executive powers.

The parents of 10-year-old Menachem Zivotofsky, born in Israel in 2002, invoked section 214(d) in a 2003 lawsuit against the secretary of state. They sought a court order requiring the government to register their son's birthplace as Israel instead of Jerusalem.

The government argued that such an order would contradict its position of neutrality on the issue of whether Israel or Palestine controls the holy city.

The three-judge panel in Washington, D.C., agreed that the law "impermissibly intrudes" on the president's "exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations."

The circuit's ruling comes on the heels of a U.S. Supreme Court decision allowing the case to proceed in U.S. courts.

A federal judge and the D.C. Circuit had previously dismissed the case for lack of subject matter jurisdiction, saying it raised political questions best left to other branches of government.

However, the Supreme Court said the Zivotofskys were not asking the courts to side with Palestine or Israel, but simply wanted them to "enforce a specific statutory right."

"To resolve [Menachem's] claim, the judiciary must decide if Zivotofsky's interpretation of the statute is correct, and whether the statute is constitutional," Chief Judge John Roberts wrote in the lead opinion. "This is a familiar judicial exercise."

The question before the D.C. Circuit on remand was: Is the challenged provision constitutional?

The court ruled Tuesday that it is not.

"Having reviewed the 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," Judge Karen LeCraft Henderson wrote for the panel.

"By attempting to alter the State Department's treatment of passport applicants born in Jerusalem, section 214(d) directly contradicts a carefully considered exercise of the executive branch's recognition powers."

The court rejected Zivotofsky's claim that the State Department has, on occasion in the past, referred to "Jerusalem, Israel" on its website and included "Israel" on the passports of citizens born in Jerusalem.

Henderson called this argument "misplaced."

"The controversy does not arise because a website or passport at one time included a reference connecting Jerusalem and Israel," she wrote. "Rather, the unconstitutional intrusion results from section 214(d)'s attempted alteration of United States policy to require the State Department to take an official and intentional action to include 'Israel' on the passport of a United States citizen born in Jerusalem." (Emphasis in original.)

The D.C. Circuit affirmed dismissal of the lawsuit on the alternative ground that the provision unconstitutionally infringes on the president's recognition power.

Judge David Tatel concurred, but wrote separately to stress that Congress' power to regulate passports does not give it free rein to trample on the executive's recognition power.

It's "certainly plausible," he added, "that American-issued passports listing 'Israel' as the place of birth for Jerusalem-born citizens could disrupt decades of considered neutrality on the Jerusalem question."

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