Commentary Magazine


Topic: Menachem Zivotofsky

The Grave Threat of Zivotofsky’s Passport to the Peace Process

Now that the Supreme Court has agreed in Zivotofsky v. Kerry to decide the constitutionality of the law allowing Jerusalem-born Americans to have “Israel” on their passports as their place of birth, it bears reiterating that President Obama did not need to make this a federal case, and that he could still take the same approach President Clinton did in 1994, when Congress passed a law allowing Americans born in Taiwan to have “Taiwan” on their passports rather than “China.”  

Clinton enforced the law, but declared that America’s “One China” policy (recognizing only the People’s Republic of China) remained unchanged. Obama could uphold the law regarding Menachem Zivotofsky’s passport, but declare that the policy that Jerusalem’s status is subject to negotiations between Israelis and Palestinians remains unchanged. Case closed! It is not clear why this should present a problem: the State Department website identifies Jerusalem as Israel’s capital; so does the CIA website; the Department of Defense website features a 2009 picture of Secretary Gates and Prime Minister Netanyahu meeting in “Jerusalem, Israel,” a 2012 picture of Joint Chiefs of Staff Chairman Martin Dempsey with Israeli President Peres in “Jerusalem, Israel,” and Secretary Hagel’s 2013 statement at his meeting with Netanyahu in “Jerusalem, Israel.” 

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Now that the Supreme Court has agreed in Zivotofsky v. Kerry to decide the constitutionality of the law allowing Jerusalem-born Americans to have “Israel” on their passports as their place of birth, it bears reiterating that President Obama did not need to make this a federal case, and that he could still take the same approach President Clinton did in 1994, when Congress passed a law allowing Americans born in Taiwan to have “Taiwan” on their passports rather than “China.”  

Clinton enforced the law, but declared that America’s “One China” policy (recognizing only the People’s Republic of China) remained unchanged. Obama could uphold the law regarding Menachem Zivotofsky’s passport, but declare that the policy that Jerusalem’s status is subject to negotiations between Israelis and Palestinians remains unchanged. Case closed! It is not clear why this should present a problem: the State Department website identifies Jerusalem as Israel’s capital; so does the CIA website; the Department of Defense website features a 2009 picture of Secretary Gates and Prime Minister Netanyahu meeting in “Jerusalem, Israel,” a 2012 picture of Joint Chiefs of Staff Chairman Martin Dempsey with Israeli President Peres in “Jerusalem, Israel,” and Secretary Hagel’s 2013 statement at his meeting with Netanyahu in “Jerusalem, Israel.” 

So what’s the big deal about letting Zivotofsky reflect on his own passport–as is his right under a federal statute–what the State Department, the CIA, and the Defense Department all include on their websites: the fact that Jerusalem has been the capital of Israel for more than 60 years? The Obama administration’s brief filed in February, opposing Zivotofsky’s petition to have the Supreme Court hear the case, asserted that “grave foreign-relations and national-security consequences” would have resulted from a lower court decision in Zivotofsky’s favor, but the same brief acknowledges that the law affects only a “very small number of people” born in Jerusalem who might avail themselves of the option offered by the law. 

What were those grave consequences? The brief asserted that putting “Israel” on the passports of Zivotofsky and the “very small number” of other people would have “risked ‘caus[ing] irreversible damage’ to the United States’ ability to further the peace process in the Middle East.” 

Seriously? Irreversible damage? Menachem Zivotofsky’s passport is an obstacle to peace?  

Since the passage of the 2002 passport law, the damage to the peace process–most of it irreversible–has included: (1) the Palestinians’ failure in 2003 to dismantle their terrorist groups, as they promised; (2) the election of Hamas in 2006 to control the Palestinian parliament, which no longer functions; (3) the conversion of Gaza in 2007 to a terrorist mini-state that has conducted two rocket wars on Israel (so far); (4) the rejection in 2008 of Israel’s offer of a state on 100 percent of Gaza and the West Bank (after land swaps) with a capital in Jerusalem; (5) the refusal in 2009-10 to negotiate with Israel even during an unprecedented ten-month construction freeze; (6) the repeated attempts by the so-called Palestinian “peace partners” to “reconcile” with the terrorist group that rules Gaza; (7) repeated Palestinian breaches of their obligation not to take “any step” outside bilateral negotiations to change the legal status of the disputed territories; (8) incessant Palestinian incitement against Israel in media and schools, including grotesque, anti-Semitic portrayals and blatantly false assertions of “history”; (9) the complete failure to establish the rule of law, or even hold an election, and the abrupt dismissal of the non-corrupt Palestinian prime minister (Salam Fayyad); and (10) multiple declarations by the Palestinian “president,” now in the 10th year of his four-year term, that the Palestinians will “never” recognize a Jewish state.  

Meanwhile the Obama administration is fighting all the way to the Supreme Court to avoid putting “Israel”–not “Jerusalem, Israel,” just “Israel”–on the passport of a 12-year-old American boy born in Jerusalem, lest the “peace process” suffer “irreversible damage.” Seriously.

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