On September 30, 2002, President George W. Bush signed into law the Foreign Relations Authorization Act, Fiscal Year 2003 (“ACT”).1 Its section 214 is entitled: “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.” Section 214(d) is the provision at issue and it stipulates:
(d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES. – For purposes of the registration of birth, certification of nationality, issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.2
An American citizen, Menachem Binyamin Zivotofsky was born in Shaare Zedek in western Jerusalem in October 2002, just a few weeks after the Act was enacted. His parents, Americans citizens, invoked the new Act. His mother applied for a United States passport for Zivotofsky, inscribing his place of birth as “Jerusalem, Israel.” The State Department issued a passport in Zivotofsky’s name but listed his birthplace as merely “Jerusalem.” The Secretary of State did not enforce the provision, claiming that it impermissibly infringes on the President’s exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations. On September 16, 2003, Zivotofsky, “by his parents and guardians, Ari Z. and Naomi Siegman Zivotofsky,” sued to compel the Secretary to comply with the Act.3 For almost a decade, the litigation has been “up and down the appellate ladder.”4
A unanimous three-judge panel of United States Court of Appeals for the District of Columbia Circuit (“court”) ruled on July 23, 2013 in the case of Zivotofsky v. Sec’y of State (“judgment”)5 that it agreed with the Secretary”…and therefore hold that section 214(d) is unconstitutional.”6
The purpose of this survey is to review the judgment in relation to three aspects:
1. Without delving into the broad issue of separation of powers, can the United States President pursue a policy contrary to a statute enacted by United States Congress?
2. Designation of place of birth on passports is neither tantamount to the establishment of foreign policy nor to its implementation.
3. Even if the case raises the question of foreign affairs, which in our opinion it does not, in contrast to what was noted by the court, the Executive branch policy toward Jerusalem has not always been “a consistent policy of neutrality.”
1. Can the United States President pursue a policy contrary to a statute enacted by United States Congress?
The court first addresses the issue of the President’s recognition power and refers to the argument made by the Secretary, the appellee. In support of his view that the recognition power is held exclusively by the President, the Secretary cites Article II, Section 3 of the Constitution, which provides, inter alia, that the President “shall receive Ambassadors and other public Ministers.”7 The court points out rightly that “…the fact that the President is empowered to receive ambassadors, by itself, does not resolve whether he has the exclusive authority to recognize foreign nations…”8 It should be noted that the American Constitution does not endow the “foreign affairs” power to the President nor to any other branch. In fact, the Constitution makes no reference to “foreign affairs.” Nevertheless, it has long been established that the President has a special role in the conduct of foreign affairs.9 Similarly, the Constitution makes no reference to recognition. Historically, presidents have made decisions concerning recognition, beginning with President George Washington.10 The court relies also on precedents of the Supreme Court. The latter declared “more than once” that the recognition power lies exclusively with the President.11 Among the cases mentioned, the court refers to Belmont and to Pink.12 Although the court was aware of the difference between Pink and Zivotofsky, it concluded that the difference does not distinguish the two cases:
[u]nlike in Pink, here the legislation that conflicts with the President’s recognition power was enacted by the Congress, not a state. But, as we today hold, the President exclusively exercises the recognition power. The Congress, like a state, may not impermissibly intrude on an exclusive Executive power. Contrary to Zivotofsky’s assertion, then, the fact that the Congress, rather than a state legislature, enacted section 214(d) does not distinguish this case from Pink.13
The court concludes by saying:
[h]aving 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.14
In another context, while referring to Belmont and to Pink, Prof. Halberstam observed: “None involved a conflict between Congress and the President.”15 Her following paragraph also pertains to our question:
The Supreme Court has never held that Congress could not exercise one of its constitutional powers because doing so would interfere with the President’s powers over the conduct of foreign affairs…The Court has held the converse: that Presidential action, which might have been constitutional if Congress had not acted, was unconstitutional because it was inconsistent with legislation enacted by Congress…16
The court cites Justice Jackson’s17 concurring opinion in Youngstown Sheet & Tube Company v. Sawyer (Youngstown).18 In Youngstown “Justice Jackson set forth a tripartite framework for evaluating the President’s powers to act depending on the level of congressional acquiescence.”19 The court mentions that both parties agree that the case of Zivotofsky falls into the third category in the above framework, which stipulates:
[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”20
It is also worthwhile quoting another sentence of Justice Jackson’s in Youngstown, which has become the classic statement on the scope of executive-legislative power.21 He wrote:
[w]hile the Constitution diffuses power the better to secure liberty…[I]t enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.22
Had the court in the Zivotofsky case considered that quotation too, it might have concluded differently. Although, as mentioned above, the court made its conclusion after ”[h]aving reviewed,” among others, “Supreme Court precedent,” again at the level of Federal Appeals Court,23 our question regarding a situation where the President’s power does not conform to a legislation enacted by the Congress has not been answered conclusively on the basis of Supreme Court’s precedents.
2. Designation of place of birth on passports is neither tantamount to the establishment of foreign policy nor to its implementation
The court agrees that Congress has authority, although not an exclusive one, to regulate passports.24 Yet the question the court examines is whether the particular exercise of that authority, Section 214(d), which refers only to passports, intrudes upon the Executive’s recognition power.
In our opinion, Zivotofsky rightly points out that nothing in Section 214(d) requires the Secretary to list “Israel” as the place of birth for all Jerusalem-born American citizens. Rather, it merely enables such a designation for those who so request.25
Zivotofsky further asserts that Section 214(d) simply regulates the form and content of a passport.26 In a concurring opinion filed by Circuit Judge Tatel, he writes:
[w]hat makes this case difficult is that Zivotofsky is partly right. As the Secretary concedes…a primary purpose of the place-of-birth field is to enable the government to identify particular individuals—e.g., by distinguishing one Jane Doe from another born the very same day.27
Judge Tafel continues: [t]hat the Secretary’s policy is about identification and personal identity, however, does not mean that it does not also implicate recognition. In fact, it clearly does.”28 In that respect, Judge Tafel as well as the court differ from Zivotofsky. According to Zivotofsky, the designation of a place of birth does not convey any political message nor does it interfere with the President’s recognition power. Zivotofsky is convinced that listing “Israel” as his birthplace will not result in adverse foreign policy consequences and will not harm the American national interests. Zivotofsky is based on United States’ own experience as was evident in the case of Taiwan.29
In 1994, Congress passed a law directing that “Taiwan” be recorded, on request, as the birthplace of American citizens born in Taiwan. It was accepted by the State Department, even though United States did not, by that date, recognize Taiwan’s sovereignty, choosing instead to view Taiwan, for foreign policy reasons, as part of the People’s Republic of China. The State Department issued the following statement:
Although Taiwan may be listed as a place of birth in passports, the United States does not recognize Taiwan as a foreign state. The U.S. recognizes the government of the People’s Republic of China as the sole legal government of China, and it acknowledges the Chinese position that there is only one China and Taiwan is part of China.30
The court tries to differentiate the “Jerusalem question” from the “Taiwan issue” and makes the following remark: “[t]he State Department included ‘Taiwan’ on passports only after determining that doing so was consistent with United States policy that Taiwan is a part of China; by contrast, section 214(d) is inconsistent with the United States’s policy of neutrality regarding Jerusalem.”31
However, there is a similarity between the two. In both cases, the State Department was requested to record on passports of American citizens a birthplace it does not recognize as sovereign. The State Department recognizes no sovereign’s claim to Jerusalem and the United States recognizes Taiwan as an area within China.
The fact that United States pursues a policy of neutrality regarding Jerusalem or a “policy that Taiwan is a part of China” does not matter. For our purposes, what is important is that merely listing a birthplace on passports does not equal a formal recognition of sovereignty; thus it has no effect whatsoever on American foreign policy, be that a policy of neutrality or taking sides with one of the parties involved.
3. Executive branch policy toward Jerusalem has not always been “a consistent policy of neutrality.”
In the opening paragraph of the first section (“I Background”) the court states: “For more than two millennia, the city has been won and lost by a host of sovereigns.”32 However, a more recent historical background should not be ignored. From 1517 onwards for almost 400 years, together with the whole of Palestine, it was under Ottoman rule. Jerusalem was never the capital of any Arab state. It has had a Jewish majority since 1830.33 When the Jewish people restored their majority in Jerusalem, they did so before obtaining a majority in any other part of their ancestral homeland. Their movement for the revival of a Jewish state was named “Zionism,” demonstrating the centrality of Jerusalem for the Jewish national movement in its entirety.34 During the time of the British Mandate over Palestine, Jerusalem was the seat of the Supreme Court and the Jewish Agency, the body recognized by the U.N. as representative of the Jews in Palestine. With the exception of the Jews, no other national group seated in Palestine declared Jerusalem as its capital.35
The court proceeds that: “[a]fter Israel declared its independence in 1948, President Harry S Truman promptly recognized it as a foreign sovereign…. Nevertheless, Presidents from Truman on have consistently declined to recognize Israel’s – or any country’s – sovereignty over Jerusalem.”36 The court is right as far as President Truman is concerned. Yet, an analysis of the policy of other presidents and at times the U.S. Administration leads to a different conclusion.
Then, on the same page the court refers to the American representative to the U.N., Ambassador Arthur Goldberg: “During United Nations proceedings in 1967, the United States ambassador stated that the ‘continuing policy of the United States Government’ was that ‘the status of Jerusalem…should be decided not unilaterally but in consultation with all concerned.’ U.N. GAOR, 5th Emergency Sess., 1554th plen. mtg. ¶¶ 98-99, U.N. Doc. A/PV.1554 (July 14, 1967) (quotation marks omitted).”37
It seems, however, that not only the quotation marks are omitted, but rather parts of the quotation itself are omitted. This is all the more evident from the full text which reads:
98. During my own statement to the General Assembly on 3 July, I said that ‘the safeguarding of the Holy Places, and freedom of access to them for all, should be internationally guaranteed, and the status of Jerusalem in relation to them should be decided not unilaterally but in consultation with all concerned.’[1546th meeting, para. 3.]
99. These statements represent the considered and continuing policy of the Untied States Government.38
Prof. Slonim made an instructive observation in relation to the statements of the State Department and of Ambassador Goldberg. He contends that:
[i]n each case, the term, “the status of Jerusalem” is qualified by the term “in relation to them,” i.e., the Holy Places. US policy, apparently, did not perceive any international interest or concern in Jerusalem except in connection with the Holy Places.39
Touching on Ambassador Goldberg’s tenure in the U.N., it is noteworthy that the court did not mention a further development in 1967, in which Goldberg was also involved. On November 22, 1967, the U.N. Security Council adopted Resolution 242, which has been regarded ever since as the main basis for peace negotiations in the Middle East between Israel and her neighbors. The resolution contains no reference to Jerusalem. Goldberg, who participated in the drafting of Resolution 242, claimed later in 1980 (to be discussed below): “…this omission was deliberate.”40
Nor is Jerusalem mentioned in the Camp David Accords of September 1978 (“The Framework for Peace in the Middle East” and “Framework for the Conclusion of a Peace Treaty between Egypt and Israel”).41
Reference to Jerusalem was made in three separate letters appended to the Agreements, by President Sadat of Egypt, Prime Minister Begin of Israel, and President Carter of the United States.42
The United States, which signed the Agreements as a witness only and not as a signatory party, defined its position on the subject of Jerusalem publicly. On no other issue did the American government feel compelled to express its view on a final document.43 In his letter to President Sadat,44 President Carter wrote:
[t]he position of the United States on Jerusalem remains as stated by Ambassador Goldberg in the Untied Nations General Assembly on July 14, 1967, and subsequently by Ambassador Yost in the United Nations Security Council on July 1, 1969.45
Yet, the two speeches differ from one another. Ambassador Yost also said that East Jerusalem was occupied territory to which the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War applied.46
Ambassador Goldberg best explained the gap between those two approaches in his letter addressed to the New York Times in March 1980:
[t]he facts are that I never described Jerusalem as occupied territory. Ambassador Yost did, in his speech of July 1, 1969, under instructions from President Nixon, and his statement represented a departure from the policy I, President Johnson and the Department of State pursued with respect to Jerusalem during the period of my tenure.47
Prof. Slonim further expounded the shift in the American policy of the two American Presidents.
The United States had never acknowledged that west Jerusalem was part of Israel or that east Jerusalem was part of Jordan; and now, with one state controlling both parts of the City, the question of status arose in a more acute form…In fact, the Johnson administration seemed to endorse an approach which accorded recognition to the actual administering state while granting the international community only those rights pertaining to religious interests. In 1969, with the entry into office of the Nixon administration, this hands-off policy was radically altered, and the United States, for the first time, pronounced east Jerusalem occupied territory, subject to the 1949 Geneva Convention on Occupied Territories.48
The dichotomy concerning the status of Jerusalem characterized not only the viewpoints of different American presidents, but in the following years also existed between the White House and the State Department. Thus, for example, while President Regan in his 1982 Peace Plan spoke about an undivided Jerusalem and seemed to be a proponent of a policy of leaving the issue of the final status of the city of for the parties to decide, the Secretary of State, George Shultz, referred to East Jerusalem as “occupied territory.”49
In 1990, President George Bush expressed his opinion that the Jewish neighborhoods of East Jerusalem had the same status as the Jewish settlements in the West Bank. Bush’s position caused considerable anger in Israel and among the American Jewry. In response, the U.S. Congress, determined to define U.S. policy in a categorical way, passed a resolution recognizing Jerusalem as the capital of Israel. However, this resolution was not binding on the president.50
Five more years lapsed when in a tribute to the celebration of 3,000th anniversary of Jerusalem’s founding, Senators Dole and Kyl introduced a Bill (“Dole-Kyl Bill”) to move the U.S. Embassy in Israel to Jerusalem. The Dole-Kyl Bill was adopted, with some amendments, on October 24, 1995, by overwhelming margins in both houses of Congress and became law on November 8, 1995, to be cited as the Jerusalem Embassy Act of 1995 (” 1995 Act”).51 This time, in contrast with the resolution of 1990, the Act was mandatory.52 However, the President was authorized to exercise a waiver and suspend moving the embassy by six months, if he determined it essential for national security interests.53
For our purposes, we will quote partly the second and third Sections of the 1995 Act:
SEC. 2. FINDINGS
The Congress makes the following findings:
(1) Each sovereign nation, under international law and custom, may designate its own capital.
(2) Since 1950, the city of Jerusalem has been the capital of the State of Israel
(7) Since 1967, Jerusalem has been a united city administered by Israel, and persons of all religious faiths have been guaranteed full access to holy sites within the city
(15) The United States maintains its embassy in the functioning capital of every country except in the case of our democratic friend and strategic ally, the State of Israel.
(16) The United States conducts official meetings and other business in the city of Jerusalem in de facto recognition of its status as the capital of Israel.
SEC. 3. TIMETABLE
(a) STATEMENT OF THE POLICY OF THE UNITED STATES.—
(1) Jerusalem should remain an undivided city in which the rights of every ethnic and religious group are protected;
(2) Jerusalem should be recognized as the capital of the State of Israel; and
(3) the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999.54
Admittedly, 14 years passed since the designated date and the American Embassy is still in Tel Aviv. However, during that time, the United States conducted official meetings in Jerusalem, including of American Presidents who visited the city. The last visit was of President Barack Obama on March 20-22, 2013. The visit was publicized by the White House in its website as follows: “[T]he President’s Trip to Israel, The West Bank, & Jordan.”55 On March 19, 2013 a day before the President arrival to Israel, Lewin & Lewin, LLP law firm from Washington D.C. presented arguments in the case Zivotofsky before the U.S. Court of Appeals for the District of Columbia Circuit. On March 22, Alyza D. Lewin, a partner at the firm, posted an article referring both to the case and to the presidential visit. The article was entitled: “Where Was The President When He Was Supposedly in Israel?” To be sure, for Levin the question is not rhetorical. In the concluding paragraph, she states unequivocally:
As described at the beginning of this article, the principal stops in Israel on the President’s itinerary were his two days of visits to places in Jerusalem. It’s hard to imagine any more “symbolic and concrete” official recognition of Jerusalem as being in Israel than describing the President’s trip this week to prominent Jerusalem sites as a “trip to Israel.” After all, where was President Obama on these two days when the White House represented that he was in “Israel?” He was in Jerusalem.56
In our opinion, designation of a birthplace on a passport is not tantamount to the implementation of a foreign policy. Moreover, even if, contrary to our analysis, Section 214(d) implicates also recognition, then, as indicated in the third part of our survey, the American policy on Jerusalem, including recognition of sovereignty claim to that city, fluctuated throughout the years. Thus, since there has not been a decades-long policy of neutrality on the Jerusalem question, there is nothing to deviate from. It remains to be seen if the Supreme Court will take up the case and compel the State Department to enforce the Act.57
Zivotofsky’s Lawyers, the Lewins, who would appeal the ruling to the Supreme Court, said in a statement. “[w]e hope that before Menachem Binyamin Zivotofsky’s Bar Mitzvah, he will be able to bear a passport that recognizes his birthplace as ‘Israel.’”58
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