Commentary Magazine


Topic: Nathan Lewin

Re: The Courts and Jerusalem

Jonathan Tobin makes a valuable point about the Zivotofsky case: the law giving Americans born in Jerusalem the right, if they want, to have the State Department put “Israel” on their passports as their place of birth reflects the fact the American people, through their elected representatives, have long recognized Jerusalem as the capital of Israel. The idea that American foreign policy would be adversely affected by letting Zivotofsky put “Israel” on his own passport is not a cogent thought.

Chief Justice Roberts’ masterful opinion (which attracted eight votes) provides a way out of the corner into which the administration has painted itself. Because the case will now return to the lower courts for further proceedings, the administration has an opportunity to reflect further on its legal strategy. There is a way in which everyone could win without further litigation – assuming President Obama is willing to learn from what President Clinton did in a similar situation.

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Jonathan Tobin makes a valuable point about the Zivotofsky case: the law giving Americans born in Jerusalem the right, if they want, to have the State Department put “Israel” on their passports as their place of birth reflects the fact the American people, through their elected representatives, have long recognized Jerusalem as the capital of Israel. The idea that American foreign policy would be adversely affected by letting Zivotofsky put “Israel” on his own passport is not a cogent thought.

Chief Justice Roberts’ masterful opinion (which attracted eight votes) provides a way out of the corner into which the administration has painted itself. Because the case will now return to the lower courts for further proceedings, the administration has an opportunity to reflect further on its legal strategy. There is a way in which everyone could win without further litigation – assuming President Obama is willing to learn from what President Clinton did in a similar situation.

In 1994, Congress directed the State Department to permit American citizens born in Taiwan to have “Taiwan” put on their passports as their place of birth, instead of the People’s Republic of China, despite American foreign policy recognizing the Communist regime as the only Chinese state. The State Department initially refused to comply on grounds it would adversely affect relations with China – but the Clinton administration eventually complied while issuing a statement that American foreign policy about “one China” remained unchanged.

That is exactly what Zivotofsky’s counsel, Nathan Lewin, suggested to the Supreme Court during oral argument:

This is not in our view a recognition case. This is a passport case. The question is, what goes on the passport, and may somebody self-identify? … If in fact the statute had said “we don’t say Jerusalem is part of Israel, but you can identify yourself as being in Israel,” my – we submit that result can very easily be achieved and was achieved in the case of Taiwan by a public statement by the executive.

The New York Sun notes that Zivotofsky’s case was brought on his behalf by his mother, who sought a passport for him after he was born in West Jerusalem (which has been Israel’s capital since 1950), and that Menachem has now been trying for most of his life to get a passport showing his place of birth as “Israel.” President Obama can decide to keep litigating – making this a huge constitutional issue that will go on for years, or he can adopt the Clinton precedent and end the case now, while issuing a statement that his foreign policy remains unchanged.

It is the obvious way out, but Obama may prefer to have the Justice Department keep litigating, rather than focus attention on his position on Jerusalem (which has been somewhat amorphous in the past and has involved web-scrubbing to boot) – particularly because he will likely be running against a Republican candidate promising to travel to Jerusalem as his first foreign trip, and who probably will not require a court decision for him to put “Israel” on Menachem Zivotofsky’s passport.

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