725 F.3d 197 (D.C. Cir. 2013), 07-5347, Zivotofsky v. Secretary of State

Docket Nº:07-5347
Citation:725 F.3d 197
Opinion Judge:Karen Lecraft Henderson, Circuit Judge.
Party Name:MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, APPELLANT v. SECRETARY OF STATE, APPELLEE
Attorney:Nathan Lewin argued the cause for the appellant. Alyza D. Lewin was on brief. Robert G. Kidwell was on brief for amici curiae Anti-Defamation League et al. in support of the appellant. David I. Schoen was on brief for amicus curiae Zionist Organization of America in support of the appellant. Paul...
Judge Panel:Before: HENDERSON, ROGERS and TATEL, Circuit Judges. TATEL Tatel, Circuit Judge, concurring.
Case Date:July 23, 2013
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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725 F.3d 197 (D.C. Cir. 2013)

MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, APPELLANT

v.

SECRETARY OF STATE, APPELLEE

No. 07-5347

United States Court of Appeals, District of Columbia Circuit

July 23, 2013

Argued March 19, 2013

Page 198

[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia. (No. 03cv01921).

Nathan Lewin argued the cause for the appellant. Alyza D. Lewin was on brief.

Robert G. Kidwell was on brief for amici curiae Anti-Defamation League et al. in support of the appellant.

David I. Schoen was on brief for amicus curiae Zionist Organization of America in support of the appellant.

Paul Kujawsky was on brief for amicus curiae American Association of Jewish Lawyers and Jurists in support of the appellant.

Gregory E. Ostfeld, Elliot H. Scherker and Marc Stern were on brief for amicus curiae American Jewish Committee in support of the appellant.

Theodore B. Olson was on brief for amici curiae Members of United States Senate et al. in support of the appellant.

Dana Kaersvang, Attorney, United States Department of Justice, argued the cause for the appellee. Stuart F. Delery, Acting Assistant Attorney General, Ronald C. Machen, Jr., United States Attorney, and Harold Hongju Koh, Legal Adviser, United States Department of State, were on brief. Lewis Yelin and Douglas N. Letter, Attorneys, United States Department of Justice, and R. Craig Lawrence, Assistant United States Attorney, entered appearances.

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

OPINION

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Karen Lecraft Henderson, Circuit Judge.

Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350, requires the Secretary (Secretary) of the United States Department of State (State Department) to record " Israel" as the place of birth on the passport of a United States citizen born in Jerusalem if the citizen or his guardian so requests. Id. § 214(d), 116 Stat. at 1366. The Secretary has not enforced the provision, believing that it impermissibly intrudes on the President's exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations. We agree and therefore hold that section 214(d) is unconstitutional.

I. Background

The status of the city of Jerusalem is one of the most contentious issues in recorded history. For more than two millennia, the city has been won and lost by a host of sovereigns. The controversy continues today as the state of Israel and the Palestinian people both claim sovereignty over the city. It is against this background that the dispute in this case arises.

Since the middle of the twentieth century, United States Presidents have taken a position of strict neutrality on the issue of which sovereign controls Jerusalem. After Israel declared its independence in 1948, President Harry S Truman promptly recognized it as a foreign sovereign. See Robert J. Reinstein, Recognition: A Case Study on the Original Understanding of Executive Power, 45 U. Rich. L. Rev. 801, 804 (2011). Nevertheless, Presidents from Truman on have consistently declined to recognize Israel's--or any country's--sovereignty over Jerusalem. When Israel announced in 1948 that it intended to convene the inaugural meeting of its Parliament in a part of Jerusalem that it controlled, the United States declined to send a representative to attend the ceremonies; a State Department cable explained that " the United States cannot support any arrangement which would purport to authorize the establishment of Israeli . . . sovereignty over parts of the Jerusalem area." Shlomo Slonim, Jerusalem in America's Foreign Policy, 1947-1997 at 123 (1998). 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). As the Secretary summarized in response to interrogatories proposed in this case:

Within the framework of this highly sensitive, and potentially volatile, mix of political, juridical, and religious considerations, U.S. Presidents have consistently endeavored to maintain a strict policy of not prejudging the Jerusalem status issue and thus not engaging in official actions that would recognize, or might be perceived as constituting recognition of, Jerusalem as either the capital city of Israel, or as a city located within the sovereign territory of Israel.

Def.'s Resps. to Pl.'s Interrogs. at 9, Zivotofsky ex rel. Zivotofsky v. Sec'y of State, No. 03-cv-1921 (D.D.C. June 5, 2006) (Joint Appendix (JA) 59). Therefore, " [t]he United States, like nearly all other countries, maintains its [Israeli] embassy

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in Tel Aviv," id. at 8 (JA 58) (quotation marks omitted), not Jerusalem.

The State Department's Foreign Affairs Manual (FAM) contains passport administration rules that reflect the policy of neutrality. The FAM first directs in detail how the applicant's birthplace is to be stated on his passport. " As a general rule, enter the country of the applicant's birth in the [place of birth field on the] passport." 7 FAM 1383.1 (2002) (JA 111).1 If, however, the applicant was born " in territory disputed by another country, the city or area of birth may be written" in lieu of the country. 7 FAM 1383.5-2 (JA 113). Similarly, an applicant may request that his passport list the " city or town, rather than the country, of [his] birth." 7 FAM 1383.6(a) (JA 115). Regarding Jerusalem, the FAM sets forth a detailed policy:

For applicants born before May 14, 1948 in a place that was within the municipal borders of Jerusalem, enter JERUSALEM as their place of birth. For persons born before May 14, 1948 in a location that was outside Jerusalem's municipal limits and later was annexed by the city, enter either PALESTINE or the name of the location (area/city) as it was known prior to annexation. For persons born after May 14, 1948 in a location that was outside Jerusalem's municipal limits and later was annexed by the city, it is acceptable to enter the name of the location (area/city) as it was known prior to annexation . . . .

7 FAM 1383.5-6 (JA 115). The FAM specifically provides that, for an applicant born in Jerusalem: " Do not write Israel or Jordan" on his passport and, further, that Israel " [d]oes not include Jerusalem . . . ." 7 FAM 1383 Ex. 1383.1 pt. II (JA 127). In sum, the State Department must record " Jerusalem" --not " Jerusalem, Israel" or " Israel" --as the place of birth on the passport for an applicant born in Jerusalem after 1948.

Recently, the Congress has attempted to alter the Executive branch's consistent policy of neutrality. In 1995, it enacted the Jerusalem Embassy Act, which provides that " Jerusalem should be recognized as the capital of the State of Israel" ; " the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999" ; and " [n]ot more than 50 percent of the funds appropriated to the Department of State for fiscal year 1999 for 'Acquisition and Maintenance of Buildings Abroad' may be obligated until the Secretary of State determines and reports to Congress that the United States Embassy in Jerusalem has officially opened." Pub. L. No. 104-45, § 3(a)-(b), 109 Stat. 398, 399 (1995) (enacted into law without President's signature). During the Congress's consideration of the legislation, the Executive branch communicated with the Congress regarding its constitutionality. See 164 Cong. Rec. S15,463 (daily ed. Oct. 23, 1995). The United States Department of Justice (DOJ) via an assistant attorney general wrote to the White House Counsel: " It is well settled that the Constitution vests the President with the exclusive authority to conduct the Nation's diplomatic relations with other States," that " the President's recognition power is exclusive" and that " [t]he proposed bill would severely impair the President's constitutional authority to determine the form and manner of the Nation's diplomatic relations." Id. at S15,468. The DOJ official explained that his conclusions were " not novel" ; for example, " [t]he Reagan Administration objected in 1984 to a bill to compel

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the relocation of the United States Embassy from Tel Aviv to Jerusalem, on the grounds that the decision was so closely connected with the President's exclusive constitutional power [and] responsibility to recognize, and to conduct ongoing relations with, foreign governments as to, in our view, be beyond the proper scope of legislative action." Id. at S15,469 (quotation marks omitted). Similarly, the then-Secretary expressed opposition to the legislation in a letter to the Senate Majority Leader. Id. The Secretary explained that " [t]here is no issue related to the Arab-Israeli negotiations that is more sensitive than Jerusalem" and " any effort by Congress to bring it to the forefront is ill-advised and potentially very damaging to the success of the peace process." Id. He echoed the DOJ official's doubts regarding the bill's constitutionality. Id. Ultimately, the Congress enacted the legislation with a waiver provision authorizing the President to suspend the funding restriction for six-month periods to " protect the national security interests of the United States." Pub. L. No. 104-45 § 7, 109 Stat. at 400.

On September 30, 2002, President George W. Bush signed into law the Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350. Section 214(d) is the provision at issue and it provides:

(d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES.--For purposes of the...

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