Jerusalemite-American? How the U.S. Supreme Court passport decision insulted my son

Like many Israelis, my son is adding this week’s ruling to his mental list of reasons why the United States is giving Israel the cold shoulder – and he’s not alone.

Ha’aretz

It’s not every day that the US Supreme Court has the power to upset an Israeli teenager.

But my 18-year-old dual-citizen son took it personally when a majority of justices on the highest court in the United States determined on Monday that his U.S. passport will continue to declare that his birthplace is in the city of Jerusalem in an unspecified land.

And why not take it personally? It’s his passport. He insists that he came into this world in a hospital located firmly on the undisputed side of the Green Line in the sovereign state of Israel and thinks that his U.S. documents should reflect that. It makes no sense to him that his sister, born in a Tel Aviv hospital, should have her birthplace listed as “Israel” while he does not.

There would have been no cause for the sibling rivalry if the Bush and Obama administrations had acceded to the law that Congress passed in 2002, which would give him the right to insist that his birthplace be listed as “Jerusalem, Israel.”

But instead, they refused to implement it on the grounds that it would call into question American neutrality on the status of Jerusalem. After years of legal wrangling including not one, but two trips to the Supreme Court, the verdict came in on “Zivotofsky vs. Kerry.” It was not in my son’s favor, as it was not in favor of the plaintiff, 12-year-old Menachem Zivotofsky, whose parents spearheaded the battle on his behalf. The congressional law that would allow them to change their passports has now officially been overturned by the Supreme Court in a 6-3 vote. A clear majority of justices supported the right of the U.S. president to make decisions regarding recognition of foreign powers.

Like many Israelis, my kid is adding it to his mental list of reasons why the United States is giving Israel the cold shoulder – part of the Israeli public’s overall perception of the world “ganging up” on Israel – and he’s not alone.

Dissatisfied American-Jerusalemites – or Jerusalemite-Americans (because we can’t call them American Israelis, right?) – like my son found a sympathizer in former U.S. ambassador-turned-MK Michael Oren, who posted on his Facebook page that “the decision is an affront to Israel’s sovereignty and to the honor of America’s crucial ally. During my service as Israel’s ambassador to Washington, I met the principled Zivotofsky family and others who brought the case before the court, I unconditionally supported them. But the frustration of their effort changes nothing for Israel and the Jewish people. Jerusalem will remain our undivided and eternal capital. Irrespective of what’s written or not written in her U.S. passport, our daughter, Lia, was born in Jerusalem, Israel.”

In an ambassadorial Facebook counterpunch, U.S. Ambassador Dan Shapiro tried to calm the backlash by sending a message to my son, Oren and their fellow disgruntled Israelis regarding the Court’s decision.

“I know many people in Israel are unhappy about today’s ruling in the U.S. Supreme Court regarding how to list the place of birth in the passports of American citizens born in Jerusalem … The decision was not about whether Jerusalem is Israel’s capital. It was solely about the separation of powers between the Executive Branch (the president) and the Legislative Branch (the Congress) of our government, and which branch has the right to recognize foreign governments and their capitals … U.S. policy on Jerusalem was not decided by today’s ruling. That policy has been the same under every administration since 1948 – namely, that the status of Jerusalem has not been decided and must be determined by negotiations.”

Shapiro is essentially correct: One look at the long Supreme Court decision and one sees that it is almost completely about internal U.S. power dynamics and very little about foreign policy, or, as my friend Dahlia Lithwick, uber-Supreme Court correspondent at Slate puts it: “The most closely watched Supreme Court case of the decade in the Middle East opens and closes with the pronouncement that this is not about you. It’s about us.”

The decision was essentially “a power smackdown between Congress and the Executive Branch about who gets to set foreign policy,” Lithwick told me after I called her in order to get the take of a seasoned Court-watcher who was present for the oral arguments in Zivotofsky, and has read the entire 93-page U.S. Supreme Court decision.

She described the decision as “a very abstract, scholarly legalistic discussion of the history of the constitutional, recognition powers, and it is just not a deep dive on anything having to do with Jerusalem – it’s very very clearly just a lengthy fight between the majority and the dissent on the president’s power.”

Evidence of this exists, she says, in the fact that Clarence Thomas – no bleeding heart liberal by any stretch of the imagination – lined up against fellow conservative justices with the more-liberal majority on most of the decision (he said that passports must abide by the administration’s policy, not all official documents were required to). While some were surprised, Lithwick says that Thomas has a record of supporting a strong executive branch.

The strongest objection to the came from Antonin Scalia, who read his dissent  out loud in court – something, she pointed out, which isn’t done often. “Very rarely does a justice read it from the bench – you have to really disagree with a decision to read the dissent in the public session.”

In the oral arguments, Scalia’s political leanings on the issue were pretty clear, when he described the State Department’s resistance to changing the passport line from “Jerusalem” to “Israel” as less of affecting real policy than its “desire to make nice with the Palestinians.”

While the decision was dry and legalistic, Scalia’s dissent was more passionate, saying that giving the White House too much power unchecked by Congress – when it comes to passports and beyond – could result in “a presidency more reminiscent of George III than George Washington.”

The other surprise, she said, was the fact that Justice Kennedy came down so “wholeheartedly” on the liberal side, especially after some of his courtroom behavior in the oral arguments of the case eight months ago.

Back then, she reported, he seemed to be toying with an attempt at a compromise solution – she wrote in her November coverage that Kennedy was trying to float “a strange compromise that would allow the State Department to print a sort of disclaimer on the passport indicating that it says ‘Israel’ at the holder’s request and that ‘This designation is neither an acknowledgment nor a declaration by the Department of State or the President of the United States that Jerusalem is within the borders of the State of Israel.’ He will repeat this Solomonic solution twice more. Since the court otherwise appears to be evenly split, this may be the Solomonic solution we read about in May.”

Ultimately, of course, the decision was handed down in June – with no sign of Kennedy’s intriguing out-of-the-box proposition – instead, only an unequivocal message for my son and his fellow Jerusalemite-Americans. When it comes to their passports, nothing is going to change until there’s a clear-cut long-term internationally recognized Israeli-Palestinian diplomatic solution to the status of the Jerusalem.

In other words, they shouldn’t hold their breath.