The references to Jersualem had appeared in the cutlines of photographs on the White House Web site illustrating an account of the vice president’s trip to Jerusalem last year. The references to ‘Jerusalem, Israel’ were first disclosed in The New York Sun’s dispatch last week on Zivotofsky v. Clinton. The case asks the high court to rule on the constitutionality of the 2002 law that gives American citizens born in Jerusalem the right to have “Israel” entered on their passports as their place of birth.
The Sun’s report was titled “Jerusalem Case at Supreme Court May Pit White House Web Site Against the President,” and noted that the pictures might be pivotal evidence contradicting the administration’s claim that the 2002 law impermissibly infringes the President’s power to “recognize foreign sovereigns.” Since the White House had effectively acknowledged on its that Jerusalem is in Israel, as have other executive branch agencies, the report suggested there might not really be a constitutional issue in giving Zivotofsky a statutory right to have that fact noted on his passport.
Yesterday afternoon Daniel Halper of The Weekly Standard posted one of the pictures, noting the reference to “Jerusalem, Israel” and contrasting it with the State Department press release issued earlier in the day stating the current administration policy to prohibit U.S. citizens born in Jerusalem from having “Israel” designated in their passports. The Halper posting went up at at 3:22 p.m. Less than three hours later, at 5:36 p.m. Halper noted that, at some time after he posted the picture, the White House had “apparently gone through its website, cleansing any reference to Jerusalem as being in Israel, including the pictures of Biden there last year.”
Throughout the past year-and-a-half that the pictures have been on the website, no one thought the captions affected the president’s constitutional powers, but rather simply noted the fact that Jerusalem is Israel’s capital. It may be the subject of future final status negotiations, if final status negotiations ever resume. But currently it is within Israel, and in particular no one expects control of West Jerusalem, where Master Zivotofsky was born, ever to change.
This point is given considerable support by the amicus brief filed last Friday by Members of the U.S. Senate and House, including majority leader Sen. Harry Reid and 27 other senators from both parties, together with a bipartisan group of 11 House members, including the chair and ranking members of the House Foreign Affairs Committee.
The amicus brief argues that the Constitution unambiguously places ultimate
control over passports in Congress’s hands and that Congress has regularly legislated in this area for more than two centuries without prior question. The 2002 legislation is “domestic legislation that merely references territory (Jerusalem) over which a long-recognized sovereign – Israel – exercises day-to-day political control,” reflecting a basic legal distinction between a sovereign’s effective control over territory and formal legal recognition of that sovereignty. Zivotofsky’s passport designation would acknowledge the former without affecting the latter.
In that sense, the cutlines on the White House photos were themselves not formal legal recognition of sovereignty but simply recognition of a commonly-
Master Zivotofsky, whose lawsuit was first covered by the Wall Street Journal, argues that under the 2002 law, Americans such as he have the right to choose the designation of their place of birth in their own passports, in the same fashion that American citizens born in Taiwan are given the right, pursuant to Congressional legislation, to list “Taiwan” on their passports, rather than the “People’s Republic of China.” Why can Congress not constitutionally legislate a similar right with respect to Jerusalem, Israel?