The law has never been enforced, and the State Department passport policy manual states, “for a person born in Jerusalem, write JERUSALEM as the place of birth in the passport. Do not write Israel, Jordan or West Bank for a person born within the current municipal borders of Jerusalem.”
In a dissenting opinion in this week’s decision, Justice Antonin Scalia wrote that the 2002 provision at the center of the case had nothing to do with recognition – that it “does not require the Secretary to make a formal declaration about Israel’s sovereignty over Jerusalem.”
“[M]aking a notation in a passport or birth report does not encumber the Republic with any international obligations,” he said. (Chief Justice John Roberts and Justice Samuel Alito joined the dissent.)
To back up his argument Scalia pointed to State Department policy regarding Taiwan, an independent nation which Beijing views as a renegade province that will someday be reincorporated into “China.”
Until 1994, passports of Taiwan-born American citizens listed “China” as their place of birth, but in keeping with a law passed that year the policy changed.
As a result, the same State Department manual that lays out policy regarding passports of citizens born in Jerusalem also explains that citizens born in Taiwan may request that either “Taiwan” or “China” appear on their passports.
“The United States does not officially recognize Taiwan as a ‘state’ or ‘country,’ although passport issuing officers may enter ‘Taiwan’ as a place of birth,” the manual states.
Scalia quoted the solicitor general as saying in regard to the China/Taiwan issue that using the designation of China “involves a geographic description, not an assertion that Taiwan is…part of sovereign China.”
In the same manner, Scalia argued, the 2002 provision relating to Jerusalem “likewise calls for nothing beyond a ‘geographic description’; it does not require the Executive even to assert, never mind formally recognize, that Jerusalem is a part of sovereign Israel.”
Differences between the executive and legislative branches over Jerusalem predate the 2002 passport provision.
By large margins, both houses of Congress in 1995 passed a law recognizing Jerusalem as Israel’s capital and instructing that the U.S. Embassy should move from Tel Aviv to Jerusalem no later than May 1999.
A built-in waiver authority allowed presidents to postpone the relocation for “national security” reasons for consecutive six-monthly periods, and they have done so ever since – most recently last week.
In 1948 Israel’s leaders declared the city – the capital of King David’s kingdom of Israel 3,000 years ago – to be the capital of the fledgling Jewish state. A war then launched by surrounding Arab nations ended with the eastern parts of the city controlled by Jordanian forces.
Jordan’s occupation, which was recognized as legal only by Britain and Pakistan, lasted until the Six-Day War, when Israel expelled the Jordanians from the eastern parts of the city and the West Bank. It later annexed those areas, a move not recognized by the international community.
(CNSNews)