Tuesday, March 27, 2012

SCOTUS Says Lower Courts Can Rule On Jerusalem-Born Americans Listing Israel As Birthplace



Well, here's some good news to start the day!

You may recall the case of Menachem Zivotofsky, a child who was born in a hospital in West Jerusalem and whose parents wanted to list Jerusalem, Israel as his birthplace.

When his parents, Ari and Naomi Zivotofsky, went to U.S. Embassy in Tel Aviv to apply for a passport for their son and asked that his country of birth be listed as Israel. The embassy refused, citing State Department policy that such passports list only 'Jerusalem,' with no country added.

So they sued.

Congress had already made a law permitting this in 2002, the same year Menachem was born, that required the State Department to list the country of origin as Israel on passports and birth certificates if a Jerusalem-born applicant requests it. Typically, President George W. Bush signed the bill but included a signing statement is that he considered this an unconstitutional breech of the president's "power to recognize foreign sovereigns."

Given it's feelings about Israel, I'm sure it's no surprise that the Obama Administration has gone the same way, allowing special 'rules' to be applied to Israel that are not applied to any other area in the world with 'disputed' territory between tow or more nations. For instance, an American born in Taipei, Taiwan can list his country of birth as either China, Taiwan, or The Republic of China (ROC), Taiwan's official name. And to add insult to injury,the State Department permits Arabs born in what is now Israel prior to 1948 the option to have written on their documents that they were born in 'Palestine', a country that didn't exist then and doesn't exist now.

The lower courts refused to actually rule on the suit, claiming that it was a foreign policy issue and an issue of separation of powers between the legislative and executive branch, not of tort law.

But in a victory for the Zivotofskys, the Supreme Court sent it back to the lower courts, stating they can and must rule on this matter of law...by an 8-1 majority.

Do I have to tell anyone that the lone dissenting voice was Justice Breyer, one of three Jews currently on the Court?

Chief Justice John Roberts,who wrote the majority opinion stated: “The courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the executive by the Constitution."

“The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what the United States policy toward Jerusalem should be,” Roberts said. “Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise.”

So the lower court will have to rule on this now.

Given that this is discriminatory, I can't see how the appellate court could rule against them based on the equal protection clause.

Kol Hakavod!

2 comments:

toyalsmith said...

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Rob said...

I don't think there's anything I left out, haboom, but you're welcome to promote your link... ;)

Chash Dam,
Rob