In closely watched case, US Supreme Court may decide fate of Jerusalem

Palestinian Muslims pray in the street after Israeli occupation forces in Jerusalem block them from reaching the city’s Al-Aqsa mosque, 26 September.

Ameer Abed Rabbo APA images

Can a US passport state that “Israel” is the birth country of a US citizen born in Jerusalem?

The US Supreme Court is due to answer that question in the closely watched case Zivotofsky v. Kerry that could have broad implications.

The American-Arab Anti-Discrimination Committee (ADC) is one of a number of civic groups that has filed an amicus brief – a written argument seeking to sway the court in one direction or another.

But it is in the minority seeking to get the highest court to answer “no.”

The case stems from a 2003 law – Section 214(d) of the Foreign Relations Act – which provides that “for the 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 of State “shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”

In July 2013, the US Court of Appeals found the law to be unconstitutional because it infringes on the power of the president to recognize “foreign sovereigns.”

The petitioner in the Supreme Court case, Menachem Zivotofsky (via his parents Ari Z. and Naomi Siegman Zivotofsky), a US citizen born in Jerusalem, is asking the justices to overrule the appeals court and reinstate the law.

The State Department and the Obama administration want the Supreme Court to uphold the appeal court’s ruling that the law is invalid and that only they have the right to recognize whether or not Jerusalem is part of “Israel.”

Discriminatory

In its 30 September brief, ADC argues that the law discriminates against Palestinian-Americans because, as it explains in a press release, the law “allows American citizens born in Jerusalem to put ‘Israel’ as their place of birth on their passport, while not allowing Palestinian-Americans born in Jerusalem to put Palestine as their place of birth on their passport.”

ADC says the law is part of a trend in Congress to push forward “discriminatory and biased legislation in favor of Israeli-Americans and against Palestinian-Americans” – and therefore it violates the constitution’s Equal Protection Clause.

The brief also supports the administration’s position that the president “has exclusive power to recognize foreign sovereigns and their territorial boundaries,” that it infringes on executive authority and unconstitutionally hands executive powers to private citizens.

ADC’s amicus brief can be found at its website.

Most of the amicus briefs filed in the case appear to be in support of the law, including from such staunchly anti-Palestinian groups as the Zionist Organization of America, the Anti-Defamation League, the American Jewish Committee and the United States Senate – which all predictably support the law as part of their long-standing agenda of helping Israel legitimize its occupation of Jerusalem.

No country in the world recognizes Israel’s claim to Jerusalem.

Texas weighs in

The State of Texas has even weighed in, allegedly on the grounds of “ensuring that executive-branch policies remain responsive to Congress – the only branch of the federal government in which the States are represented.”

But Texas also takes a clear pro-Israel position arguing that Congress is entitled to conclude that “it is more important to respect the freedom of conscience of citizens like Menachem Zivotofsky and his parents, who believe strongly that Jerusalem belongs to Israel, and who should not be forced to carry badges espousing the President’s belief that Jerusalem is no-man’s land.”

Texas is silent about the fact that Palestinians and Palestinian-Americans living under Israeli military occupation, including in Jerusalem, are forced to live under oppressive and discriminatory conditions that no Americans would willingly accept for themselves.

Jewish opposition

At least one Jewish group has taken a position in support of the administration. True Torah Jews filed an amicus brief on behalf of Satmars and other non-Zionist Jews.

In a statement on its website, True Torah Jews said that its brief, also filed this week, “argues that the court should dismiss the case on procedural grounds: the petitioner has suffered no cognizable ‘injury in fact’ from the fact that the passport does not say ‘Israel’ and therefore has no standing to sue” under the US constitution.

The Satmars are the largest group of Ultra-Orthodox – or Hasidic – Jews in the United States.

They adopt a fiercely anti-Zionist position rooted in their religious belief that the creation of a worldly “Jewish state” in the absence of the messiah is a blasphemy.

They hold the view that Zionism is largely responsible for present-day hostility towards Jews.

Satmar leaders strictly forbid their followers from taking any money from the Israeli state, unlike other Hasidic sects that are represented in parliament and bargain for Israeli government subsidies in exchange for political support.

Recently, Satmars have taken more active political stances, participating in massive demonstrations opposing an Israeli law to draft their men into the army.

True Torah Jews says its brief explains that “Zionists should not be seen as speaking for traditionally Orthodox Jews,” especially “in the case of expansionist Zionists and those supporting the settler movement, for whom recognition of Israeli sovereignty over Jerusalem is an important step toward the goal of legitimizing all Israeli expansionism.”

Jerusalem at stake

The attention this case is receiving is an indicator that its implications reach far beyond the issue of passports. If the Supreme Court hands more power over foreign policy to Congress, that will be seen as a major win for the Israel lobby.

The current incumbent of the White House is, in practice, the most supportive of Israel ever, but whenever any dispute arises between a US president and Israel, it is to Congress that the lobby turns for unquestioning support.

Congress may then be able to force through additional policies that help Israel complete its violent ethnic cleansing and colonization of Jerusalem.

The Supreme Court is due to hear arguments in the case on 3 November and is not likely to issue a ruling until the spring of 2015.

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Comments

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The premise that City of Jerusalem is State of Israel sovereignty is an absurdity:

1 Jerusalem is UN Sovereignty: UNGA 181 Part III- Partition of Mandate of Palestine, A UN Charter, Chapter XII., Article 80 Terms of UN Trusteeship

2 Why nation-states , Including the USA, do not recognize the annexation of Jerusalem by the State of Israel.

3 US Constitution
3.1 Individual Civil Rights Protections

3.2: Functions of Government Branches : Congressional vis-a-vis Executive Powers
3.2.1 Foreign Relations: USA vis-a-vis Israel
3.2.1.1 Jerusalem is UN Sovereignty UNGA 181 Part III: UNGA 181- Partition of Mandate of Palestine, A UN Charter, Chapter XII., Article 80 Terms of UN Trusteeship

3.2.2 Foreign Relations: USA vis-a-vis Palestine
3.2.2.1 Self-evident that the Abbas premise to claim East Jerusalem as the Capital of UNGA 181 State of Palestine is an absurdity on the same grounds that Jerusalem is UN Sovereignty: UNGA 181- Partition of Mandate of Palestine, A UN Charter, Chapter XII., Article 80 Terms of UN Trusteeship

3.3 Immanentual Issue: US Constitution vis-a-vis International Treaty Obligations
3.3.1 Foreign Relations USA vis-a-vis UN Charter : UN Charter Chapter XVI., Article 103 UN Charter obligations supersede bi-lateral obligations

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As much as I hope you're right, I've got a sick feeling this ruling will go in the Zionist direction, despite the best efforts of all who are trying to prevent it from happening. I really hope I'm wrong...

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US Government is not the State of Israel government that operates based its parliamentarian "basic law" : US Constitution is a charter that defines the functions of governance.

Governance of function conflicts & Bill of Rights issues are resolved through the US Supreme Court: Albeit, the issues remain at unresolved until the specific issue reaches the US Supreme Court through specific litigation action.

US Constitution has International Treaty obligations to UN Charter:
1. Israeli lawfare through proxie litigants in an attempt legitimize its war criminal occupation of UNGA 181 Palestine & Jerusalem has remained in the political arena to date;

2. Once it enters the jurisprudential system of the USA: US Constitution shall prevail; Whereof, the US Supreme Court must honor US Constitution International Treaty obligations vis-a-vis Israeli Sionist propagated falsehoods.

In addition, once it enters other western nation-states jurisprudential : Israeli Sionism shall lose because all legitimate jurisprudential systems operate on laws& established facts; & not on political propaganda.

Absurd premises that Israeli War Crimes could be legitimized through
1 IDF War Operations,

2 Bi-lateral Israeli-Palestinian negotiations that would have contravention of Laws of Nations & Humanity as object;

3 Or through litigation in nation-states where the Rule of Law prevails as opposed to the State of Israel where its agencies of governance are politary leadership means to effect the War Crimes Enterprise.

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The SCrt's dealing with this matter will NOT advance the Zionist enterprise. Firstly, there is an insurmountable, powerful and sophisticated argument for why Section 214(d) of the Foreign Relations Act is unconstitutional for a reason more fundamental than infringing on the power of the executive which we can get into later. Secondly, due to UN, including US (!), concerns that Israel would not satisfy the "peace loving" requirement of Art. 4 of the UN Charter for a nation applying for membership, the representatives of Israel were required to answer some questions regarding, among other things, territorial claims, including potential claims to Jerusalem, and the return of refugees. The Israeli representatives were forced to confirm that they had no claims to Jerusalem. They also gave the armistice lines after the 1948 war the new interpretation that they represented the country's international borders which contradicted the interpretation that they represented no such thing in the armistice agreements that Israel had just signed! For the Scrt to go along with Congress (IMPOSSIBLE!), it would in effect be holding that what Israel had to agree to to meet the "peace loving" requirement of the UN Charter in order to become a UN member is something that the US Congress can renounce on Israel's behalf even if by being able to do so that would mean Israel and the US are not "peace loving." Were the Scrt to give effect to the unconstitutional statute, the SCrt 1) would be allowing Congress a) to violate a more fundamental requirement than respecting separation of powers and b) to take a position that contradicts a core requirement of the UN Charter (that nations desiring membership be "peace loving") and 2) would require the SCrt to somehow magically vitiate the contradiction by affirming it by going along with the legally, ethically, and morally irreparably defective arguments of petitioners and their amicus brief-filing supporters . Neither is going to happen.

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I agree with you fully; that is how it *should* work, & I hope to God it does. I simply don't have the same faith in the legal system that you do. The shortcoming is entirely mine, I am sure. It's just that I've seen some rather egregious miscarriages of justice in my five short decades of life. I smell something foul in the wind. & I am bracing myself for disappointment.

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Is it "more important to respect the freedom of conscience of "Menachem Zivotofsky" and his parents... ” over the conscience of anyone else? At the exclusion of any other person's wishes?

Should the beliefs of "Menachem Zivotofsky" set the bar for all future passport registrations for Americans born in Jerusalem?

It seems odd to me that a court of competent jurisdiction would make a decision granting an exclusive favor to one family over the beliefs of any other family who may not agree that Jerusalem belongs to Israel.

I will be watching. Thanks for the blog

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So...this is what I'm getting...the "strong belief that Jerusalem belongs to Israel" is actually a factor in this case? Seriously?
What if I "strongly believe" that Reykjavik belongs to the state of Michigan? Can I obtain an Icelandic passport?

Ali Abunimah

Ali Abunimah's picture

Co-founder of The Electronic Intifada and author of The Battle for Justice in Palestine, now out from Haymarket Books.

Also wrote One Country: A Bold-Proposal to End the Israeli-Palestinian Impasse. Opinions are mine alone.