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July 23, 2014 8:32 am

Supreme Court Receives Briefs for ‘Born in Jerusalem’ Passport Case

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A U.S. passport. Credit: PD.

JNS.orgThe Louis D. Brandeis Center for Human Rights Under Law (LDB) and the American Jewish Committee (AJC) have separately filed amicus curiae briefs in support of Menachem B. Zivotofsky, the petitioner in Zivotofsky v. Secretary of State, which has become known as “born in Jerusalem” passport case.

Menachem was born in Jerusalem in 2002 after Congress passed a law ordering the U.S. State Department to “record the place of birth as Israel” in passports of American children born in Jerusalem if their parents make that request. Former U.S. President George W. Bush signed the law, but like U.S. President Barack Obama after him waived the statute on the grounds that it would force the State Department to recognize Jerusalem as the capital of Israel, an issue that the Bush and Obama administrations have said should be resolved directly through negotiations between Israelis and Palestinians.

The U.S. Supreme Court will hear Menachem’s case in the fall. In an earlier decision, an Appellate Court ruled that only the president has the constitutional authority to make the passport determination, an assertion that is disputed by both AJC and LDB.

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“The central issue is whether Congress or the president has a role to play in recognition of foreign governments and who has the constitutional prerogative to determine rules on issuing passports,” said AJC General Counsel Marc D. Stern. “The historical record is crystal clear that Congress has an important role to play in determining America’s decision on recognition of foreign governments and in setting passport policy.”

The brief submitted by LDB, co-signd by leading scholars such as constitutional law expert Erwin Chemerinsky and prominent conservative law professor John C. Eastman, argues that the Jerusalem passport case “lends itself to a much simpler resolution than would a true dispute between the president and Congress regarding the powers to recognize the legal status of states and foreign sovereigns.” Congress’s authority to make such determinations on foreign territory “is a function necessary and proper to the exercise of its assigned powers,” states the brief.

“It is both astonishing and infuriating that federal litigation is required to convince the U.S. Department of State to recognize the quintessentially obvious fact that Jerusalem is in Israel,” LDB President Kenneth L. Marcus said.

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