Menachem Zivotofsky was born in a Jerusalem hospital in 2002. Two months later, his mother showed up at the U.S. Embassy in Tel Aviv, Israel, to get him a passport.
Menachem's parents, Ari and Naomi, were born in the United States so there was no question that he was American, too.
But when the mother asked that her son's passport and other documents indicate that he was born in Israel, State Department officials refused, citing longstanding U.S. policy to refrain from expressing an official view about Jerusalem's status. Israel has proclaimed the once-divided city as its capital; the U.S. and most nations do not recognize Jerusalem as the capital.
A lawsuit followed. The dispute over Menachem's passport, a mix of the thorny politics of the Middle East and a fight between Congress and the president over primacy in foreign policy, has landed at the Supreme Court. The justices could say as early as Monday whether they will hear the case.
Had Menachem been born in Tel Aviv, the State Department would have issued a passport listing his place of birth as Israel. The regular practice for recording the birth of a U.S. citizen abroad is to list the country where it occurred.
But the department's guide tells consular officials, "For a person born in Jerusalem, write Jerusalem as the place of birth in the passport."
Ever since President Harry S. Truman recognized Israel upon its declaration of nationhood in 1948, no president has accepted permanent Israeli rule of the entirety of Jerusalem. Since Israel's victory in the 1967 Six-Day War brought the entire city under Israeli control, U.S. policy has regarded the sensitive status of Jerusalem as something ultimately to be determined in talks between Israel and its negotiating partners. The U.S. Embassy remains in Tel Aviv.
In 1995, Congress essentially adopted the Israeli position, saying the U.S. should recognize a united Jerusalem as Israel's capital. Shortly before Menachem's birth, lawmakers passed new provisions urging the president to take steps to move the embassy to Jerusalem and allowing Americans born in Jerusalem to have their place of birth listed as Israel.
The measures were part of a large foreign affairs bill that President George W. Bush signed into law. But even as he did so, Bush issued a signing statement in which he said that "U.S. policy regarding Jerusalem has not changed." The president said Congress could not tell him what to do in this matter of foreign affairs.
Presidential signing statements, which have been used for centuries, became a point of controversy during Bush's presidency. He issued them more often than any other president. Democrats in Congress complained that he used them to pick and choose parts of legislation he could ignore, overstepping his bounds as president.
After the Zivotofskys took their complaint to federal court in 2003, a judge refused to get in the middle of the dispute over Jerusalem's status. It was a political question, the judge said, for Congress and the president to work out without the intervention of the courts.
U.S. District Judge Gladys Kessler said that if the courts were to get involved in a case about Jerusalem's status, "a controversial reaction is virtually guaranteed. Such a reaction can only further complicate and undermine United States efforts to help resolve the Middle East conflict."
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed that it had no authority to consider the claim.
One appellate judge, Harry Edwards, said he disagreed with his colleagues. But he would have ruled against the Zivotofskys. Edwards said the Constitution clearly gives the president exclusive power in this area and that it was important for the courts to say so. Three other judges on the appeals court voted to have the entire court hear the case but that was short of the majority of the full court needed to do that.
The focus of the Zivotofskys' appeal is on the courts' power to resolve the dispute. A victory at the Supreme Court probably would leave it to lower courts to decide what the passport should say. The child's father is a rabbi who writes on an array of issues, including the finer points of kosher cuisine.
Rep. Anthony Weiner, D-N.Y., has joined the family in urging the Supreme Court to hear the case. "Foreign policy is not a presidential preserve," Weiner said in a filing with the court. He also criticized the use of signing statements, which he said violates the Constitution's requirement that the president faithfully execute the law.
The case is Zivotofsky v. Clinton, 10-699.
District Court opinion: http://tinyurl.com/4xh6nau