On December 6, 2017, President Donald Trump announced U.S. recognition of Jerusalem as the capital of Israel and ordered the planning of the relocation of the American Embassy in Israel from Tel Aviv to Jerusalem. On May 14, 2018, the embassy was opened. And on January 29 of this year, he revealed his peace plan outlining a proposed map of what the borders of Israel would look like, including Jerusalem as the undivided capital of Israel.
But it wasn’t until last week that the president addressed a glaring anomaly: Despite the president’s moves, the State Department never changed its policy of not allowing American citizens born in Jerusalem to list their place of birth as “Israel” for fear of even suggesting that Jerusalem was part of Israel.
But now that has changed.
On Thursday, the State Department formally announced that it will now allow U.S. citizens born in Jerusalem to elect to list their place of birth as either “Israel” or “Jerusalem.” Since Jerusalem is now recognized as part of Israel, it is curious that there was no decision to require that the listing be Israel. Perhaps this was a sop to anti-Israel diehards in the State Department or to Palestinian-American U.S. citizens born in Jerusalem.
At all events, it’s an important step forward. It was also fitting that the next day, the first passport issued under the new rules was issued to Menachem Zivotofsky. Readers may recall that the issue was brought to public attention 18 years ago after the father-daughter law firm of [Nathan] Lewin & [Alyza] Lewin filed a lawsuit in federal court in Washington, D.C., on behalf of Zivotofsky, then an infant who was born in Jerusalem to two American citizens.
The case challenged the State Department’s refusal to follow a law that had been passed with overwhelming bipartisan support and signed by President George W. Bush, which directed that for “a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”
Despite having signed the law, President Bush directed the State Department to ignore it claiming that it usurped his constitutional power to make foreign policy.
The case twice went up to the U.S. Supreme Court; the first time Nathan Lewin argued the case and the second time his partner Alyza Lewin presented oral argument. Although the briefs they filed were virtual tutorials on the grant of a foreign policy role for Congress, the court nevertheless ruled that a president had exclusive authority over recognition of foreign sovereigns and the definition of their boundaries and declared the law unconstitutional.
It seems certain, however, that the two cases provided a roadmap for President Trump’s action on the passports.