Menachem Zivotovsky v. Hillary Clinton
Menachem Zivotovsky v. Hillary Clinton

Israel advocacy groups are gearing up for the much anticipated case of Menachem Zivotofsky v. Secretary of State Hillary Clinton, which will be heard before the U.S. Supreme Court this November. For those of you not familiar with the details of the case, allow me to bring you up to speed.

In 2002, Congress passed a law that directed the Secretary of State to record the birthplace of American citizens born in Jerusalem as "Israel" on these documents for American citizens who so request.  Since the bill was enacted, the executive branch has refused to enforce the law, based on the specious claim that to do so would infringe on the President's authority to "recognize foreign sovereigns." 

Enter the Zivotofskys, an American Jewish couple whose son Menachem was born in Jerusalem, Israel, shortly after the aforementioned law was passed. Menachem's parents requested that the place of birth on his U.S. passport and Consular Report of Birth Abroad be listed as "Israel." The State Department refused the request and instead listed "Jerusalem" as the place of birth. 

Since then, the Zivotofskys have become a symbol in the Jewish people's struggle to see recognized Israel's right, like that of any other sovereign nation, to determine its own capital.

Interestingly enough, in a similar case with which the reader may be familiar, Congress passed the Jerusalem Embassy Act all the way back in 1995, which in principle recognizes Jerusalem as Israel's capital, requiring the establishment of a U.S. Embassy therein (to this day, we have a consulate in Jerusalem and our embassy in Tel Aviv).

Presidents George W. Bush and Barack Obama have each signed waivers preventing the Act from being implemented, citing a presidential prerogative in the areas of foreign policy and national security.

The prestigious law firm of Lewin & Lewin, American Jewry's go-to counsel for major federal cases, has been litigating the Zivotosky case pro bono for the past eight years.

Lewin & Lewin filed their latest brief on behalf of the Zivotofskys last Friday. In it, they lay out a cogent, multi-faceted argument in favor of enacting the law that the State Department has been flouting for nearly a decade now. It would be beyond the scope of this editorial to relate their case point by point, but I would like to bring to the reader's attention a few highlights, along with my own observations:

If there is an exclusive power the President has to "recognize foreign sovereigns," (Lewin maintains that in fact the Constitution only gives the President the ceremonial duty of "receiving ambassadors and other public ministers") that power does not include determining whether a particular city or territory is within the borders of the "foreign sovereign." In two Supreme Court cases concerning such a question, the Court said it would rely on Congress' determination as well as the President's.

(Well, so far we've already provided two clear examples of Congress stating unequivocally that it recognizes Jerusalem as Israel's capital. And the President doesn't deny this per se, he simply refuses to enact the existing legislation for diplomatic, financial, and/or national security reasons.)

The passport's designation of a place of birth is not limited to "foreign sovereigns" because the State Department permits "West Bank," "Gaza Strip," and "Palestine" to be entered even though these are not recognized countries.

(So we recognize territories governed by what we ourselves term to be a foreign terrorist organization, but we balk when it comes to granting that same recognition to our allies? Well, not all of our allies - just one.)

The President was not constitutionally authorized to ignore the law by signing it and issuing a "Signing Statement" declaring that he intended to disobey it on the grounds that it was unconstitutional.

The only procedure authorized by the Constitution is the veto process that President George W. Bush chose not to use. Refusal to abide by one provision in a law he has signed is equivalent to a "line-item veto" which the Supreme Court has found unconstitutional.

(Personally, I am mystified by the process by which members of Congress attach "riders" to proposed legislation, passing into law items completely unrelated to the bill under consideration, or killing the legislation by introducing objectionable but completely extraneous amendments to it. The idea that a president can sign off on a law adding a note that says "except for these parts I don't like," sounds like behavior more suited to grade school than government, and frankly, it scares the hell out of me. My only solace is that apparently it scared the Supreme Court too, since, as Lewin notes, they've already declared the practice unlawful.)

As the editor of a Jewish Newspaper, I could go on, ad nauseam, about how offensive this whole fiasco is to me as a Zionist, and as a Jew. How dare they?... Am Yisrael chai...and so forth. But I'm not even going to go there.

I'm not writing this as a Jew, or a Zionist, although I am both of those things. I am writing this as a proud citizen of the United States of America. And as an American, I am deeply offended by this miscarriage of justice, and the repeated failures of our government's executive branch. It's time we as a country got our priorities straight, and decided to do what is right, rather than what is simply expedient.

Little Menachem Zivotovsky wasn't born in Ramallah! He wasn't born in Jerusalem's Arab Quarter! He was born in Shaare Zedek Hospital, for heaven's sake!

Did I miss something? Is all of Jerusalem on the negotiating table now? Has Obama issued a statement demanding that Israel return the Kotel to the Palestinians?

Sure, Jerusalem may be the center of the universe for Jews, but hey, the Muslims say it's their third holiest city (despite no explicit mention of it in the Qur'an); who are we to question? We mustn't offend the Palestinians; let's undermine Israeli sovereignty instead.  Better not to pick a fight with the side that fights dirty.

Having the good fortune to have been born and raised in the United States, I understand this much: Israel is an ally. The Palestinians (and Hamas especially) are not. Why do we continue to put the wants and needs of our enemies above those of our friends? And why do we continue this farce, pretending that Jerusalem is anything other than the eternal, inviolable, indisputable, indivisible capital of the Jewish nation?

Don't believe me? Go out and pick ten random Americans, and ask them what the capital of Israel is. We Americans are notoriously bad at geography, but if you receive any answer at all, I'll bet that nine times out of ten, it will be Jerusalem.

The internal bickering of our government is embarrassing, but hardly unique. Still, let us hope that G-d endows our leaders with wisdom, and that the Supreme Court, that beacon of hope resting at the very top of our great nation's judicial branch, will resolve this humiliating impasse between the other two.