The U.S. Supreme Court hears arguments Monday for a second time in a case that combines Middle East policy with the dueling foreign policy roles of the president and Congress. It's a political hot potato that asks what U.S. passports should say about the birthplace of American citizens born in Jerusalem.A look at the questions raised in 2011 seems to indicate that the Supreme Court may be more inclined to back the President's opinion on the status of Jerusalem over that of Congress, meaning that the Zivotofsky lawyer has an uphill battle.
Ever since the founding of Israel in 1948, the U.S. has taken the position that no country has sovereignty over Jerusalem until its status is negotiated in a Middle East peace deal. Israel's supporters in Congress, however, have tried to force a different policy, passing legislation that would move the U.S. embassy from Tel Aviv to Jerusalem and require the State Department to allow U.S. citizens born in Jerusalem to list Israel as their place of birth on their passports.
The Bush administration and the Obama administration both refused to do so, contending that the passport mandate unconstitutionally infringes on the president's foreign policy powers.
Enter Menachem Zivotofsky, born in Jerusalem 12 years ago to American parents who emigrated to Israel and now maintain dual citizenship. The Zivotofskys want their son's place of birth on his passport to say Israel — not just Jerusalem. So they sued to force the State Department to let them do that.
Three years ago, when the case first went to the Supreme Court, the justices did not issue a definitive ruling, instead opting to send the case back to the lower court for further action. But now, the case is back. And a look back at the 2011 argument gives some clues about the justices' thinking.
Back in 2011, a couple of months ahead of the SCOTUS ruling to send the case back to a lower court, a Weekly Standard article noted that the White House website itself referred to Jerusalem as being in Israel:
A couple of hours after that article was posted, the White House webmaster methodically went through the entire website and scrubbed nearly all mentions of "Jerusalem, Israel:" (with one example overlooked):
I just looked at the site again, and the webmaster seems to have only overlooked one additional mention of the term since then:
S. Fitzgerald Haney is Director of Business Development and Client Services at Pzena Investment Management, a position he has held since 2007. From 2002 to 2007, he was Director for Strategic Planning and New Business at the Depository Trust & Clearing Corporation. From 1999 to 2001, Mr. Haney was a senior associate at Israel Seed Partners, a venture capital firm in Jerusalem, Israel.But you can't erase statements made by the President or Vice President themselves.
In 2010, Vice President Joe Biden released a statement datelined in Jerusalem slamming Israel's announcement of new building, but he clearly indicated that he was in Israel at the time:
"I condemn the decision by the government of Israel to advance planning for new housing units in East Jerusalem. The substance and timing of the announcement, particularly with the launching of proximity talks, is precisely the kind of step that undermines the trust we need right now and runs counter to the constructive discussions that I’ve had here in Israel."
Similarly, President Obama said that he was "here in Israel" when speaking from Jerusalem a number of times on his most recent trip to Israel in March 2013: at the Prime Minister's residence, Yad Vashem and twice at the Jerusalem Convention Center.
State Department officials also often acknowledge that they are in Israel when they speak in Jerusalem. For example, Undersecretary of State Wendy Marshall earlier this year said,"It’s wonderful to be here in Israel, to be here in Jerusalem." John Kerry has said similar things at least once. Previous Secretaries of State have also: Albright, Clinton, Rice.
The President and the State Department know quite well that Jerusalem is in Israel. But they want to hang onto this old relic of a never-implemented UN decision to recognize Jerusalem as a "corpus separatum" in 1947 as having legal validity. It is sort of pathetic, actually.
Interestingly, US officials stationed in Jerusalem as late as 1962 had the phrase "Jerusalem, Palestine" used on their passports, and this practice was protested by Israeli officials. I'm not sure exactly what date that practice was dropped. The State Department rationale at the time was:
On February 15, Crawford reported to Bar-Haim that in response to Israel's request he had checked as to whether the Department of State might stop using the term, "Jerusalem, Palestine" in the passports of U.S. Consular Officers assigned to that city. The answer was that the U.S. current practice was consistent with U.S. policy on Jerusalem and that Jerusalem, part of the former state of Palestine, had not since passed under the sovereignty of any other state in a de jure sense.Of course, by my mentioning this here the anti-Israel idiots will be most happy, since they like to pretend that the "Palestine" of 1947 - a government that was run by Zionists - is the same "Palestine" that they pretend exists today. This is why they come up with stupid arguments based on currency and stamps and sports teams of the 1930s and 1940s that were run by Palestinian Jews as being proof of a previous state of "Palestine" - even though the Palestinian Arabs were against the use of "Palestine" currency, for example, currency that in Hebrew gave the initials of Eretz Yisrael.