Jerusalem: Better Late Than Never

It’s a diplomatic case of better late than never. It seems that Menachem Binyamin Zivotofsky might finally get an American passport listing his country of birth as Israel — eighteen years after his American mother, who with her husband lives in Beit Shemesh, went to give birth in Shaare Zedek hospital in Jerusalem. He’s been trying for years to get the U.S. to issue him a passport saying he was born in Israel. The word is the new policy will cover him and others in a similar situation. Good for President Trump and Secretary of State Pompeo.Mr. Zivotofsky’s case is one the most remarkable we’ve covered. His parents sought to avail themselves of an option created by Congress in 2002. The law, part of the Foreign Relations Authorization Act, passed the Senate unanimously. “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 law said, “the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”Yet the State Department refused to carry out the law. It wouldn’t do so even after Hillary Clinton, who was in the Senate when the law passed by unanimous consent, became state secretary. Mrs. Clinton wasn’t the only one who refused to honor the law. Secretary of State Kerry was just as bad; he too had been in the Senate when the law passed by unanimous consent. He, too, ended up as a named defendant when the matter came up for one of its several reviews at the Supreme Court. Lower courts had tried to duck the question as a political matter.The oleaginousness of the two state secretaries may be hard to imagine, but in 2015, Mr. Zivotofsky finally lost. The Supreme Court said that because the “power to recognize foreign states resides in the President alone,” the 2002 law “infringes on the Executive’s consistent decision to withhold recognition with respect to Jerusalem.” The Devil and Congress could take the hindmost. Chief Justice Roberts and Justices Thomas, Alito, and The Great Scalia dissented on all or, in Justice Thomas’ case, part of the ruling.We had hoped that this would have been settled politically and promptly with the election of President Trump. He had, after all, run on a promise to move the American embassy to Jerusalem from Tel Aviv, where our diplomats were based because one American administration after another shrank from establishing the ambassador in the capital at Jerusalem. They did so even after 1995, when an almost unanimous Congress passed the Jerusalem Embassy Act mandating that the embassy be moved.President Trump kept his promise on moving the embassy. Until now, though, the passport question has yet to be resolved. News reports suggest that the matter has been pushed by Ambassador David Friedman, who, in our view, has emerged as one of the best envoys we’ve had in the Middle East. News reports say that Mr. Friedman has been an advocate of allowing, in cases of Americans born in Jerusalem, the listing of the country of birth as Israel. Politico reports the State Department is likely to make the announcement.One point to remember, in our view, is that the State Department’s long-standing policy regarding passports was not neutral. This was pointed out by the lawyers who carried Mr. Zivotofsky’s case through the courts, Nathan Lewin and his daughter Alyza Lewin, of Lewin & Lewin. By refusing to list Israel as the country of birth for a person born in Jerusalem, they have pointed out, the State Department was acceding to the wishes of those who object to the existence of the Jewish state itself. That favored those who “seek Israel’s demise,” Ms. Lewin said this week.Politico sees — and no doubt for good reason — the pending change in passport policy on Jerusalem as “just the latest of numerous moves the Trump administration has made that favor Israel in the long-running Israeli-Palestinian conflict.” Its list includes cutting off aid to the Palestinian Arabs, closing their offices in the District of Columbia, and cooling talk of a two-state solution. Our guess is that the timing is related to the elections, which is fine by us. Vice President Biden could have picked up this issue at any time. He just didn’t.________Image: Photo of Mr. Zivotofsky, who was born at Jerusalem in 2002, holding the United States Passport listing his country of birth as Israel, with Ambassador David Friedman. Photo via the U.S. Embassy, Jerusalem. Update: This editorial was updated October 29 to include comments by Mr. Zivotofsky’s attorneys. Correction: “Israel” is how the place of birth is expected to be listed on Mr. Zivotofsky’s passport. Roberts is the Chief Justice who dissented in Zivotofsky v. Kerry. Both points were stated inaccurately in the bulldog.

Jerusalem: Better Late Than Never

Jerusalem: Better Late Than Never

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