- - Friday, October 31, 2014


It’s the eve of important national elections, and there are no last-minute questions about campaign-finance law or appeals to preserve a place on the ballot for a crucial referendum. All is quiet on the legal front. Or maybe not. The U.S. Supreme Court is busy with arguments Monday about whether a 12-year-old American boy has the right to have “Israel” listed on his passport as his place of birth.

This is hardly the stuff of high drama, but it’s the second time for the high court to hear the case of Menachem Zivotofsky, who was born in Jerusalem. Splitting hairs is a national pastime in the nations of the Middle East (often with knives and guns), and the decision will have important consequences, some diplomatic. On one side, the American Jewish Committee and the Anti-Defamation League want “Israel” stamped on U.S. passports. On the other side, the American-Arab Anti-Discrimination Committee insists that can’t be because it would be unfair to Palestine.

This shouldn’t be a hard question, but it is, proving once more that Charles Dickens’ Mr. Bumble was correct with his observation that “the law is a ass.” In 2002, Congress enacted a law stating that if an American is born in Jerusalem, “The Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” Secretaries of State Hillary Clinton and John F. Kerry rejected the Zivotofsky family’s request, insisting the law infringed on the president’s constitutional authority to “receive Ambassadors and other public Ministers.” This is generally assumed to mean that the president gets to decide which foreign governments are legitimate and which aren’t by recognizing or not recognizing their representatives.

The U.S Court of Appeals for the D.C. Circuit sided with the State Department, saying the addition of “Israel” to the passport “conflicts with the President’s recognition determinations” and is therefore unconstitutional. “The power to recognize a sovereign state’s territorial boundaries is a necessary corollary to the power to recognize a sovereign in the first place,” the court held.

Jerusalem is the capital of Israel, but the Palestinians claim it as their own as well. Jews and Arabs have been fighting over it since 1948, and for centuries before that. The State Department bureaucracy wants to stay neutral (by its own definition of “neutral”).

The Zivotofsky family first sued when Menachem was a year old. Now he’s 12. A dozen years of legal wrangling is a long time to split hairs over something that seems clear to a rational consideration. Congress has the right attitude. It recognizes Jerusalem, where Menachem was born, as the place where the flag of Israel flies. Anyone, Jew or Arab, need only to look up almost anywhere in the city to see it fly. Government officials and the cops on the streets are Israelis. Stamping “Israel” on a passport is little more than recognizing fact. Congress, being reasonable and measured, doesn’t require “Israel” on the passport of anyone who doesn’t want it there. The Supreme Court justices have an opportunity to be equally measured in dispensing diplomatic justice.

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