A law passed by Congress and signed by President Bush clearly requires the State Department to record Israel as the place of birth in passports for American citizens born in Jerusalem, but that requirement cannot be enforced by the courts, a federal judge ruled yesterday.
For the second time, Judge Gladys Kessler threw out a lawsuit brought by an American couple, Ari and Naomi Zivotofsky, on behalf of their son, Menachem, who was born in Jerusalem in 2002. The judge said the State Department's refusal to list Israel on the boy's passport presented a "nonjusticiable political question" that courts are required to turn away. The State Department contends that marking Menachem's place of birth as "Jerusalem, Israel" would upset long-standing American policy that the sovereignty of Jerusalem is an issue to be determined in peace talks between the Israeli government and the Palestinian Arabs.
"Plaintiff argues that this case does not require the Court to determine the status of Jerusalem," Judge Kessler wrote. "Plaintiff is wrong. Resolving his claim on the merits would necessarily require the court to decide the political status of Jerusalem. The case law makes clear that the Constitution commits that decision to the executive branch."
An attorney for the Zivotofsky family, Nathan Lewin, vowed an appeal. "This is an issue that will have to be resolved by the court of appeals no matter how the case was decided by the district court," he said in a statement.
Judge Kessler threw the case out on similar grounds in 2004, but the D.C. Circuit Court of Appeals overturned her ruling in 2006 and sent the case back for fact-finding on the international implications of the "Jerusalem, Israel" passport designation.
When Mr. Bush in 2002 signed the Foreign Relations Authorization Act, which contained the passport provision as well as language encouraging moving the American Embassy to Jerusalem from Tel Aviv, he added a so-called signing statement expressing his disagreement. The Jerusalem-related section "impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch," Mr. Bush wrote, adding, "U.S. policy regarding Jerusalem has not changed."
Mr. Bush's claim that he has the constitutional power to instruct the executive branch to ignore the Jerusalem provision, even though he signed the bill into law rather than vetoing it, is one of more than 1,000 such challenges he has made since taking office. Mr. Bush's statement on the Jerusalem provisions also suggested that that some or all of the language could be construed as advisory and not mandatory. In court, lawyers for the State Department took just that position, arguing that the passport provision was simply hortatory.
Judge Kessler curtly dismissed that interpretation yesterday. "It is difficult to construe [the passport language] as anything but mandatory," she wrote. She noted that while Congress urged moving the embassy, it flatly instructed the State Department to issue passports with "Jerusalem, Israel" as the designation for that city. "The Congressional intent … is clear," the judge wrote.
Despite that clarity, Judge Kessler found that the dispute was one the courts should not wade into. "A decision by this Court on the merits would risk offending either, or both, the legislative and executive branches, which are at loggerheads over United States policy regarding Jerusalem. Such conflicts are best resolved through political means," she wrote. "Should this Court add its voice go those of the President and Congress on the subject of Jerusalem's status a controversial reaction is virtually guaranteed. Such a reaction can only further complicate and undermine United States efforts to help resolve the Middle East conflict." A spokesman for the Justice Department, Charles Miller, declined to comment on the ruling.