The Supreme Court’s majority opinion said the president’s exclusive power to recognize foreign governments entitles him to “maintain that determination in his and his agent’s statements.” The Court majority said that designating “Israel” in a passport as the place of birth of a citizen born in Jerusalem is unconstitutional because it would “force the President himself to contradict his earlier statement.” The flaw in the 2002 law according to Justice Kennedy’s majority opinion is that “it is a mandate that the Executive contradict his prior recognition determination in an official document issued by the Secretary of State.”
An American passport is an official request by the president of the United States, speaking through the secretary of state, to a foreign government requesting permission for the passport-holder to travel internationally. If the president (through his agent, the Passport Office) tells a foreign government in a U.S. passport that Jerusalem is in Israel he is, according to the Supreme Court majority, contradicting his declaration that Jerusalem is not in Israel.
This brings us to the critical question. Must the “place of birth” designation in a passport be a “statement” by the president, the secretary of state, or the Passport Office? A United States passport formally notifies a foreign government that the holder of the passport is a citizen of the United States. But it need not be a certification by the United States that the passport holder was born where the passport says he or she was born.
During the “discovery” phase of the Zivotofsky litigation, we asked the State Department to explain why “date of birth” and “place of birth” are shown on U.S. passports. The State Department responded that “identification is the principal reason” why these personal details appear on a passport. The Department said: “United States citizens encountering emergencies in foreign countries are identified in cables sent to U.S. posts abroad by the Directorate for Overseas Citizens Services by their name, date, and place of birth.”
An additional explanation was: “The ‘place of birth’ information contained in a passport of a U.S. citizen is included for identification purposes, among other reasons, in messages sent to and from U.S. embassies, consulates, and other posts.”
Finally, the State Department said: “The ‘place of birth’ specification assists in identifying the individual, distinguishing that individual from other persons with similar names and/or dates of birth, and identifying fraudulent claimants attempting to use another person’s identity.”
In other words, the “date of birth” and “place of birth” are how a particular United States citizen is located when he or she is sought in a foreign country. Neither serves any diplomatic foreign-policy function. Many countries do not even include a passport-holder’s “place of birth” on their passports.
The instructions for current passport applications require foreign-born U.S. citizens to specify their place of birth and require production of a foreign birth certificate. A prominent boxed warning on the front page of the application declares that “false statements made knowingly and willfully in passport applications . . . are punishable by fine and/or imprisonment under U.S. law” and specifies statutes prescribing long prison terms. A government official verifies the applicant’s representation regarding his place of birth the first time a foreign-born citizen applies for a passport.
The Foreign Affairs Manual (known as “FAM”) unilaterally and unnecessarily injects the State Department’s Passport Office into the process of recording the “place of birth.” Passport Office employees and American consuls abroad are instructed over many pages of the FAM on how to show the “place of birth” on a passport. It is the FAM that directs that individuals whose applications say that they were born in Jerusalem may not be shown on passports as born in “Israel.” And the FAM contains many other peculiar, arbitrary, and discriminatory directives that have patently politicized the “place of birth” designation.
