What happens if there is a peace accord tomorrow, and Israel gives up any claim to sovereignty over Jerusalem? Is the President free to stop listing Israel on the passport?Thus Justice Sonia Sotomayor yesterday, when the U.S. Supreme Court heard arguments in the case of Zivotofsky v. Clinton.
The case has its origin in the attempt of U.S. citizens Ari and Naomi Zivotofsky to have the birthplace of their son Menachem shown on his U.S. passport as "Israel." Menachem was born in 2002 at Shaare Zedek hospital, which is located in western Jerusalem, near Har Herzl, which is well within the "1967 borders."
But the State Department, in its wisdom [sic], has had an official policy since at least 1970 to designate the birthplace of those born anywhere in Jerusalem as "Jerusalem," with no reference to a country. This is ostensibly because U.S. foreign policy regards sovereignty over Jerusalem to be an issue for resolution between Israel and the Palestinian Authority and wishes to remain "neutral" in the meantime. Right.
There are many twists, turns and legal aspects to this case, but I want to focus for the moment on this exchange that took place yesterday between Justice Sotomayor and Nathan Lewin, the attorney representing the Zivotofskys.
I do understand that during oral argument a justice can propose any far fetched hypothetical scenario he or she believes may clarify a point or better define an argument. But one of the disturbing things about this whole issue of birthplace designation, which I've raised many times before, is that the official position of the State Department, which appears to be echoed here (perhaps inadvertently) by Justice Sotomayor, is a return in negotiations not to Israel's 1967 borders (a/k/a the 1949 armistice lines) but to the completely untenable 1947 borders as drawn in the UN Partition Plan, under which Jerusalem was an "international" city under UN control. Why else would "Jerusalem" (as opposed to "East Jerusalem") be included with the Gaza Strip, the Golan Heights and the West Bank as areas in which the State Department prohibits a passport to show "Israel" as the birthplace? And why would a Supreme Court justice posit the utterly absurd hypothetical that Israel would ever "give up any claim to sovereignty over Jerusalem" as part of any accord or negotiation?JUSTICE SOTOMAYOR: Mr. Lewin, you were cut off earlier when you were saying this reading doesn't hobble the President in the future.
It says anybody born in -- in Jerusalem can have Israel listed, correct? What happens if there is a peace accord tomorrow, and Israel gives up any claim to sovereignty over Jerusalem? Is the President free to stop listing Israel on the passport?
MR. LEWIN: If -
JUSTICE SOTOMAYOR: Or does he have to wait for Congress to change the law?
MR. LEWIN: I think he does have to wait for Congress to change the law.
JUSTICE SOTOMAYOR: So you are hobbling the President with respect to situations that occur frequently -
MR. LEWIN: Well -
JUSTICE SOTOMAYOR: -- as happened in Egypt, sometimes overnight.
MR. LEWIN: No, but it may in some way, in a very remote possible way -- I mean, I think under those circumstances, if there were a peace treaty and if Jerusalem were handed over to a Palestinian state, I think Congress would repeal the statute.
That's the point. Congress has the power, has the authority under the Constitution to enact laws, and it is Congress that makes the decision even with regard to foreign policy issues.
Again, the question:
What happens if there is a peace accord tomorrow, and Israel gives up any claim to sovereignty over Jerusalem? Is the President free to stop listing Israel on the passport?Couldn't the same question be asked of Haifa or Jaffa or Beersheva?
