The Case

The Brief

On August 5, 2011, the ADL, the Association, and a host of other supporters, filed the Amici Brief for the case. To view the brief, click here.

The Facts

In October 2002, in West Jerusalem’s Shaare Zedek Hospital, the Zivotofskys welcomed into the world their third child – Menachem Binyamin.  Menachem was a happy, beautiful baby, no different from the Zivotofskys’ two older children.  Indeed, even though he was born in Jerusalem, Menachem, just like his siblings who were born in the United States, was an American citizen at birth.  See 8 U.S.C. §1401(c) (providing that a child born to two U.S. citizen parents is a United States citizen, even if he or she is born abroad). 

The Zivotofskys take great pride in their American heritage.  So they decided to formalize the relationship between their newborn son and his home across the Atlantic by applying, on his behalf, for a U.S. passport and a U.S. Consular Report of Birth Abroad.  In completing the pertinent paperwork for Menachem, his mother specifically requested that the place of birth on both documents be designated as “Israel,” as authorized by Section 214(d) of Pub. L. No. 107-228, 116 Stat.1350, enacted and signed into law on September 30, 2002.  The law reads:

         SEC. 214. UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL
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         (d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES.  For purposes of the registration of birth, certification of nationality, or 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.

Despite this law, the United States Department of State refused the Zivotofsky’s request, and following directives in the Foreign Affairs Manual listed the place of birth as “Jerusalem.”

The Case

Seeking to protect Menachem’s right to have “Israel” listed on his passport, the Zivotofskys retained Washington-based attorneys Nathan Lewin and Alyza Lewin of Lewin & Lewin, LLP to sue the federal government.  The Lewins filed suit in the District Court for the District of Columbia to enforce Section 214(d).

In response to the Zivotofskys’ action, the Department of State argued that the Jerusalem passport law infringed on the President’s power to recognize foreign sovereigns, which, the Department argued, includes the power to determine whether a particular territory is part of a country.  The Department also relied on President George W. Bush’s September 30, 2002, signing statement regarding the law:

Section 214, concerning Jerusalem, impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch.  Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.  U.S. policy regarding Jerusalem has not changed.

Procedural History

On motion by the Department of State, the United States District Court for the District of Columbia first dismissed Menachem’s lawsuit on the ground that he lacked “standing.” After that decision was reversed by the Court of Appeals, the District Court again dismissed the case because it allegedly presented a “political question.”  Two judges on the Court of Appeals for the District of Columbia Circuit affirmed the District Court’s “political question” ruling. The third judge disagreed with the “political question” rationale but said that he would conclude that the Jerusalem passport law infringed the President’s exclusive constitutional authority to recognize foreign sovereigns.

Recent Developments

The United States Supreme Court granted certiorari on May 2, 2011.  The parties have been instructed to brief and argue the following two questions:

(1) Whether the “political question doctrine” deprives a federal court of jurisdiction to enforce a federal statute that explicitly directs the Secretary of State how to record the birthplace of an American citizen on a Consular Report of Birth Abroad and on a passport; and

(2) Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President’s power to recognize foreign sovereigns.

Oral arguments will likely be during the Supreme Court’s November 2011 Argument Session.

The Anti-Defamation League’s (“ADL”) Support of Menachem

As the premier civil rights/human relations agency in the United States, the Anti-Defamation League seeks “to stop the defamation of the Jewish people and to secure justice and fair treatment to all.”  In furtherance of this objective, ADL previously lobbied Congress in support of the Jerusalem passport law.

Given the current controversy, ADL, with the assistance of attorneys Michael Gardener, Jeff Robbins, and Ari Stern of the law firm Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (“Mintz Levin”), is preparing to file an amicus brief in support of Menachem.  The brief will advance the following arguments:

(1) The information that appears on a U.S. citizen’s passport is simply for the purpose of identification.

(2) Having the power to regulate passports, Congress has the legal authority to give U.S. citizens the option of declaring a particular country as their place of birth without impinging/infringing on the Executive’s power of recognition.

(3) The State Department’s current treatment of the Jerusalem passport law leads to national origin discrimination.

ADL must file the amicus brief by August 5, 2011.

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Please support Menachem's appeal.

(1) If you are a Jerusalem-born American citizen, you can support Menachem’s appeal through the Ad- Hoc Association of Proud American Citizens Born in Jerusalem, Israel.  The Association, a web-based organization run by the International Israel Allies Caucus Foundation, and the National Council of Young Israel consists of Jerusalem-born American citizens who wish to self-identify as U.S. citizens born in Israel.

The Association will be signing on to ADL’s amicus brief and will thereby give you a voice in this important matter.  If you wish to join this effort, please register by clicking HERE or on the "Add Your Voice" button. Membership in the Association is completely free.

(2) All American citizens  – may support Menachem’s appeal by reaching out to their U.S. Senators and Representatives.  The law firm of Gibson, Dunn & Crutcher, LLP has prepared an amicus brief to be filed on behalf of Members of Congress in support of Zivotofsky.  The Gibson Dunn brief, also due to be filed August 5, 2011, defends the important role that Congress plays in foreign affairs, makes clear that Congress was operating well within powers granted to it by the Constitution when it passed Section 214(d), and demonstrates that the “recognition power” is jointly held by both political branches. 

Click HERE or on the “Take Action” button to send a letter to your Congressional Representative and Senator to urge them to sign on to this important brief.