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Appeals court: Congress overstepped with its 'Jerusalem, Israel' designation

The ruling, in the case of parents who wanted their son's US passport to read 'Jerusalem, Israel' as his place of birth, said Congress intruded on the exclusive power of the executive branch in passing a 2002 law.

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The case, Zivotofsky v. Secretary of State, pitted Congress’s broad power to regulate passports and immigration against the president’s authority to conduct diplomacy and decide whether to recognize foreign nations.

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In its 42-page decision, the appeals court examined the president’s recognition power from the earliest days of the nation’s history to recent times and concluded that the executive branch wields exclusive power in that area.

The “Jerusalem, Israel” statute passed by Congress amounted to an unconstitutional intrusion into a realm reserved to the president alone, the court said.

“The unconstitutional intrusion results from [the law’s] attempted alteration of United States policy to require the State Department to take an official and intentional action to include ‘Israel’ on the passport of a United States citizen born in Jerusalem,” Circuit Judge Karen LeCraft Henderson wrote for the three-judge panel.

“Congress plainly intended to force the State Department to deviate from its decades-long position of neutrality on what nation or government, if any, is sovereign over Jerusalem,” Judge Henderson said.

“We conclude that [the law] impermissibly intrudes on the President’s recognition power and is therefore unconstitutional,” she said.

In a concurring opinion, Circuit Judge David Tatel acknowledged that the State Department allows residents of cities in Israel to decide whether to designate “Israel” or nothing in tandem with the city-of-birth listed on the passport. But those instances do not implicate the president’s recognition power, he said.

“The [State Department] has consistently walked a careful line, permitting individual choice where possible while still ensuring consistency with foreign policy,” Judge Tatel wrote.

He said Congress could probably pass some laws concerning the place-of-birth section on a passport, such as requiring a particular font or eliminating the birth field altogether. Those areas, he said, would not interfere with the president’s recognition power.

“But in enacting the [Jerusalem, Israel law], Congress did intrude on the recognition power,” he wrote. “The statute seeks to abrogate the [State Department’s] longstanding practice of precluding place-of-birth designations that are inconsistent with US recognition policy.”

Abraham Foxman of the Anti-Defamation League said his group was "deeply disappointed" by the appeals court ruling. The ADL had filed a friend-of-the-court brief in the case supporting the Zivotofskys.

"The court has effectively given a stamp of approval to the offensive State Department policy that singles out Israel for 'special' treatment," he said in a statement.

"We firmly believe that Congress acted within its power when it gave individuals like the Zivotofskys the option to list their son's place of birth as Israel. We hope the Supreme Court will now take up the case and compel the State Department to enforce this sensible law," he said.


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