How we know Jerusalem passport issue is not about recognition

April 24

In a previous post about Zivotofsky v. Kerry, the Jerusalem Passport case, I explained why Congress’s powers to legislate war, trade and immigration with foreign countries do not amount to much if the president can unilaterally decide some foreign places aren’t in the relevant foreign countries.

Here I will say some more about why Congress’s passport law does not amount to an intrusion on the president’s foreign affairs powers: the word printed after the city on the birthplace line of a passport does not constitute a recognition of the political status of the place. Thus people born in Taiwan can quite sensibly have that recorded on their passports despite the U.S. not recognizing the existence of such a country.

But further proof comes from the operation of the Jerusalem law itself. Firstly, “Israel” is only listed at the request of the passport-holder, apparently to avoid discomfiting Arab-Americans. Thus two people born in the same Jerusalem hospital on the same day could have different things written on their passports. That’s not how passports normally work – it is more like a specialty license plate.

Moreover, if an American citizen born in Jerusalem prior to May 1948 (or perhaps even East Jerusalem in 1949-67) were to get their passport renewed, the law in question in Zivotofsky v. Kerry would apparently allow them to request that the document say “Israel.” (The law provides that “[f]or purposes of … certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen… record the place of birth as Israel.”) [See Update below for a discussion of the regulations implementing this, which adopt a different rule.]

Of course, at the time of birth, Jerusalem was most definitely not in Israel, which did not yet exist. It was in Mandatory Palestine. This further supports the notion that listing “Israel” on the passport does not intrude on the president’s recognition power, since no one would suggest that Congress means to say the birth took place in Israel.

I know that my passport, which has said “Kiev, USSR,” was recalled in the early 1990s, and came back saying “Ukraine” for the birthplace. This of course was wildly inaccurate, and ironically, a bit Soviet in its naked historical revisionism. But I took it to mean the State Department was simply interested in what country desk had responsibility for the place I was born, which is a different question. Or perhaps at Foggy Bottom, if there is no country desk, there is no place.

I fear I may have to send the passport in for revision again soon.

UPDATES & CORRECTIONS: I’ve revises this post to reflect that passports for U.S. citizens born abroad only reflect the country of birth, not the city. As one reader notes, this makes the Executive’s position even stranger. Since its not general knowledge the precise coordinates where particular citizens were born, simply writing “Israel” on passports would not be any kind of obvious statement about the status of Jerusalem (at least if POTUS had not already made such a fuss about it.)

Interestingly, State Department regulations used to permit people born in the Ukrainian SSR to choose whether their passports said “Ukraine” or “USSR”. Under 7 FAM 1383.5-3:

If applicants were born in the Union of Soviet Socialist Republics, Russia, Byelorussia,
or the Ukraine, regardless of the date of birth, the birthplace should be written as either
U.S.S.R., Russia, Byelorussia, or Ukraine, whichever is stated on the application.

The current version of the FAM (adopted in 2012), however, requires ONE to list “Ukraine” (the current sovereign) as your birth place. See 7 FAM 1340(d)(1). The regulations also make an exception for the “updating” rule for Mandatory Palestine – passports of people born there must still say Palestine. Even more strangely, those born in Jerusalem in Mandatory Palestine will only have Jerusalem written in.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.
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Eugene Kontorovich · April 24