Solicitor General: Israel Has No Claim to Jerusalem, Just as Russia Has No Claim to Crimea

Menachem Zivotofsky, center, stands with his father Ari Zivotofsky, right, and their attorney Alyza Lewin, outside the Supreme Court in Washington, Monday, Nov. 3
Menachem Zivotofsky, center, stands with his father Ari Zivotofsky, right, and their attorney Alyza Lewin, outside the Supreme Court in Washington, Monday, Nov. 3 / AP
November 4, 2014

Lawyers for the Obama administration compared Israel’s control of Jerusalem to Russian claims over the Ukrainian territory of Crimea during oral arguments this week before the Supreme Court in a case concerning the rights of U.S. citizens to list Jerusalem as part of Israel on their passports.

U.S. Solicitor General Donald Verrilli, who is rumored to be in the running to replace outgoing Attorney General Eric Holder, drew the comparison on Monday while he attempted to convince the Supreme Court that Jerusalem is not officially part of Israel.

The controversial case hinges around Menachem Zivotofsky, who was born in Jerusalem in 2002. Zivotofsky’s parents requested that Menachem’s U.S. passport bear "Jerusalem, Israel" as his place of birth, a request that was denied by the Obama administration on the basis of its longstanding policy to not recognize the holy city as part of Israel.

The Zivotofsky family sued following the decision and the case has been stuck in judicial limbo since. The Supreme Court agreed to hear the case and initial arguments by both sides were presented this week.

Obama administration lawyers argue that the case infringes on the president’s executive right to conduct foreign policy. By acknowledging Jerusalem as Israeli territory, the White House would lose its credibility in the peace process, as well as its jurisdiction to manage foreign affairs, the government maintains.

Lawyers for the Zivotofsky family disagree.

They argue that a portion of a 2002 law permitting U.S. citizens born in Jerusalem to have "Israel" listed as their birthplace supersedes the Obama administration’s policy position on Jerusalem. While the law was signed by former President George W. Bush, he and President Barack Obama have both issued signing statements to avoid implementing the measure.

During Monday’s arguments before the court, Solicitor General Verrilli maintained that a formal acknowledgment of Jerusalem being part of Israel would be tantamount to the United States putting "Crimea, Russia" on a citizen’s passport.

Verrilli was referring to the Ukrainian region of Crimea, which Russia forcefully seized earlier this year.

"The position of the executive [Obama] is that we recognize, as a practical matter, the authority of Israel over West Jerusalem," Verrilli argued, according to court transcripts. "With respect to the rest of Jerusalem, the issue is far more complicated."

"I do think, for example, Your Honor," Verrilli said to Justice Samuel Alito, "if [we] were to start issuing passports to people born in Crimea tomorrow that identified Russia as the country of birth, that would carry obvious implications for our foreign policy position, and it would contradict the foreign policy position in a way that could be quite deleterious."

As with the disputes over Crimea’s status, stating that Jerusalem is part of Israel also would interfere with the White House’s policy positions, Verrilli argued.

As arguments proceeded in the case, the justices appeared to split along the justices' traditional conservative and liberal lines.

At multiple points, Justice Sonia Sotamayor appeared to argue that it would be a "lie" for the U.S. government to acknowledge on a passport that Jerusalem is in Israel.

Putting "Jerusalem, Israel" on a U.S. passport is a lie since the executive branch does not believe it to be true as a matter of policy, Sotamayor said.

"What they’re asking you [the Zivotofskys] to do is to look—they’re asking the government to lie," Sotamayor said.

She repeated this argument again later in the arguments.

"How could you tell me it’s not a lie?" Sotamayor asked Alyza Lewin, the lawyer representing the Zivotofsky family. "You, the United States, are being asked to put on the passport that you believe the place of birth of this individual is Israel, and the government—and the executive has said, no, we don’t think it was Israel, we think it was Jerusalem.

Lewin maintains that the addition of "Israel" to the passport in question does not constitute official U.S. government "recognition" of Jerusalem as belonging to Israel, and, therefore, does not breach foreign policy pronouncements.

The Obama administration has countered that such a declaration would harm President Obama’s "credibility" in global affairs.

"Foreign governments, foreign peoples will not be able to have complete confidence that the position that the president announces on behalf of the United States is, in fact, the position of the United States," Verrilli argued.

Justice Anthony Kennedy wondered why the administration would not just submit to the request with an added clarifier stating that it does not reflect official U.S. policy.

Justice Alito also was skeptical that there could be any reasonable "misunderstanding" of the executive branch’s position.

"So why will there be any effect on foreign policy except by people who will misunderstand the situation, either because they really don’t understand it or they will exploit it in some way?" he asked.

Court observers have paid particular attention to the case since it focuses on one of the world’s most intractable and hot button problems.

"This case manages to combine two of the things that this administration dislikes the most: Congress and Israel," Adam J. White, a D.C.-based lawyer and writer, told the Washington Free Beacon.

"The administration's fundamental position is that if the State Department is required to comply with the statute, then there may be confusion about what President Obama’s position is on the state of Israel," White explained.

However, "that argument could be politely classified as a ‘legal fiction,’ because no one really questions what President Obama's policy is toward Israel," he said. "His administration has made that painfully obvious, and no matter what the Supreme Court decides in this case, President Obama's position will continue to be obvious throughout the Middle East."

Published under: Israel