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D.C. Circuit Court Struggles with Dispute Over Jerusalem

March 20, 2013
Mike Scarcella

D.C. Circuit Grapples with 'Sensitive' Dispute Over Jerusalem

Calling the dispute "sensitive" and saying the resolution will have global consequences, the U.S. Justice Department today urged a federal appeals court in Washington not to allow an American born in Jerusalem to identify Israel as the place of birth on his U.S. passport.

Federal law allows the designation of Israel as the birth country in those situations, but the Justice Department contends the statute, which Congress adopted in 2002, unlawfully interferes with the power of the president to recognize foreign countries. The United States does not recognize any country as having sovereignty over Jerusalem.

The dispute, now in the U.S. Court of Appeals for the D.C. Circuit, has kicked around the courts for years now, generating substantial interest among advocacy groups and members of Congress along the way. Last year, the U.S. Supreme Court weighed in, saying the D.C. Circuit has the authority to review the suit on the merits. The high court rejected the Justice Department's position that the case presented a "political question" outside the jurisdiction of the judiciary to answer.

The D.C. Circuit panel judges-Karen LeCraft Henderson, Judith Rogers and David Tatel-spent more than an hour today questioning Nathan Lewin of Washington's Lewin & Lewin, who is representing the boy, and Justice Department lawyer Dana Kaersvang about the scope of the president's power to recognize foreign sovereigns. There was no obvious consensus on the panel about the resolution of the case.

The Justice Department is concerned about how the world-in particular, the Middle East-will react if the appeals court allows the boy at the center of the case to declare his birth country as Israel. Tatel noted at one point that a potential passport, if the law is upheld, would read "Israel" and not "Jerusalem, Israel." There's no political message with such a passport, the judge said. Tens of thousands of Americans have passports that identify Israel as the birth country.

The boy's lawyers argue the government has overblown the potential adverse reaction. In court today, Lewin noted that no Palestinian advocates filed a brief in the Supreme Court. (The boy at the center of the case turns 11 in October. His passport lists "Jerusalem" as his place of birth.)

The appeals court, Lewin said, giving the court a way out of a thorny legal course, doesn't have to reach the scope of the president's "recognition power."

Instead, he argued, the court could more narrowly rule that the law is lawful under the congressional authority to regulate passports. A passport, he said, is a means of self-identification that doesn't touch the power of the president to conduct foreign affairs.

The passport provision appears under a statute titled "United States Policy With Respect to Jerusalem as the Capital of Israel." That gave the D.C. Circuit judges some pause today as they assessed whether they could get around what Congress believed it was doing when it passed the law. Enter Chief Justice John Roberts Jr. of the Supreme Court.

Lewin today pointed the D.C. Circuit panel to how the Supreme Court tackled the legality of the Obama administration's healthcare reform legislation. Congress identified a key provision in the Affordable Care Act as a "penalty," not a "tax." The Supreme Court majority upheld the provision under congressional power to "lay and collect taxes."

When President George W. Bush in 2003 signed the passport law, he issued a statement that said the provision "impermissibly interferes with the president's constitutional authority to formulate the position of the United States."

Gibson, Dunn & Crutcher partner Theodore Olson, representing members of Congress in a friend-of-the-court brief in the D.C. Circuit, said in court papers that the law doesn't require or direct the U.S. government to change its position the status of Jerusalem. The law, Olson said, gives U.S. citizens the option to choose between "Israel" and "Jerusalem" as the place of birth.

President Barack Obama this week is expected to attend meetings in Jerusalem and other spots in the Middle East, a trip that garnered some discussion at today's hearing in the appeals court.

Lewin said the White House publicly identified the trip as one to "Israel." He called the designation of the trip a "symbolic and concrete" example of the government's recognition that Jerusalem is located within Israel.

The D.C. Circuit panel judges didn't immediate rule today.

Mike Scarcella

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