Washington - A federal appeals court on Tuesday invalidated a U.S. law that was designed to allow American citizens born in Jerusalem to choose to have Israel listed as their birthplace on passports contrary to long-standing U.S. foreign policy.
A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that the president - and not lawmakers - had sole authority to say who controls the historic holy city claimed by Israelis and Palestinians.
In the U.S. government, the president “exclusively holds the power to determine whether to recognize a foreign sovereign,” wrote Judge Karen Henderson for the panel.
Since the founding of Israel in 1948, U.S. presidents have declined to state a position on the status of Jerusalem, leaving it as one of the thorniest issues to be resolved in possible future peace talks.
The State Department, which issues passports and reports to the president, has declined to enforce the law passed by Congress in 2002, saying it violated the separation of executive and legislative powers laid out in the U.S. Constitution.
When President George W. Bush signed the law, he said that if construed as mandatory rather than advisory, it would “impermissibly interfere” with the president’s authority to speak for the country in international affairs.
Ari and Naomi Zivotofsky, whose son Menachem was born in Jerusalem and is a U.S. citizen, filed a lawsuit in 2003 demanding that the government enforce the law.
The issue reached the U.S. Supreme Court last year on the preliminary question of whether it was so political that it did not belong in the courts. The high court ruled 8-1 that the case could proceed, setting up Tuesday’s ruling.
Nathan Lewin, a lawyer for the Zivotofskys, said he was preparing a statement.
An estimated 50,000 American citizens were born in Jerusalem and could have used the law, if it were enforced, to list Israel as their birthplace.
While Israel calls Jerusalem its eternal and indivisible capital, few other countries accept that status. Most, including the United States, maintain their embassies to Israel in Tel Aviv.
Palestinians want East Jerusalem, captured by Israel in 1967, as capital of the state they aim to establish in the West Bank and Gaza Strip, alongside Israel.
Read our article published two years ago, giving an extensive history of the subject:
We applaud this decision to keep authority over the United States’ position on Jerusalem in the hands of the president, who handles foreign policy. All efforts in Congress to force the hand of the executive branch on this matter were the result of Zionist special interest groups and their perceived power over the vote. At the time, True Torah Jews made extensive efforts to contact senators and representatives of heavily Jewish districts to inform them that a great many Jews did not support this bill and actually felt that it threatened them. The last thing American Jews need is to be seen as pressing the U.S. government to support the Israelis even more than they already do, in the face of 99% of the world.
Furthermore, ever since 1947, when Rabbi Yosef Tzvi Dushinsky, chief rabbi of Jerusalem, pleaded with the UN not to include the Holy City as part of any Jewish state, our Orthodox Jewish communities have been vocal in our opposition to Israeli rule over Jerusalem. Our community in Jerusalem would have vastly preferred to live under the UN, as mandated by the UN partition plan, than under the Zionist government. This is indeed what would have happened, had the Zionists not invaded Jerusalem and taken it for themselves.
This years-long court battle over a mere word printed on a passport should teach us the importance of such small gestures in a major ideological conflict. Jews should be careful not to print the words “Made in Israel” or “Printed in Israel” in order to avoid implicitly recognizing the existence of the state.
This concept is found in the Talmud, Kesubos 109a. If A disputes B’s ownership of a certain field, and it is discovered that B sold an adjacent field to C, and in the document of sale he listed the four fields bordering that field, and one of them is mentioned as being B’s own field, and A is one of the witnesses signed on that sale, A has lost his case. If A really claimed the field as his own, he would not have signed on any document mentioning, even in passing, that the field belongs to B.
So too we, who dispute the State of Israel’s right to exist, cannot print or allow to be printed any words that imply that we recognize it. Shouldn’t we be at least as religious as the good old USA?