Abed Ayoub thinks that it’s going to be a close decision in Zivotofsky v. Kerry, the separation of powers battle between Congress and the President over U.S. policy on Jerusalem that is currently under consideration at the Supreme Court.
“I’d predict a 5-4 decision for the State Department, or possibly even 6-3.” Ayoub, the Legal and Policy Director for the American-Arab Anti-Discrimination Committee (ADC), said this week after attending the Court’s oral argument in Zivotofsky.
The case’s central figure is a 12-year-old Jerusalem-born American citizen, Menachem Zivotofsky, who wants the birthplace line in his passport to say “Israel.” While this sounds like a simple enough request, the Executive branch has a longstanding policy of not recognizing any state’s sovereignty over the city, so his passport merely says that he is born in “Jerusalem,” with no designated country of birth. Zivotofsky and his parents invoked a 2002 law passed by Congress that included a section (known as Section 214(d)) ordering the State Department to amend the birthplace from “Jerusalem” to “Israel” for any American citizen who requests the change. But the State Department refused to do so for Zivotofsky, citing Congress’ intrusion into the Executive’s power to determine foreign policy and the harm that even a one-word change would inflict on American diplomacy efforts in the already-volatile Middle East. Zivotofsky took the dispute to the Supreme Court, which must decide whether Section 214(d) is a proper exercise of Congress’ constitutional powers.
Because the law Congress wrote addresses only Jerusalem’s relationship to Israel, Palestinian Americans born in that city do not have the option of swapping out “Jerusalem” for “Palestine” in their passports, which is where the ADC comes in. The organization, which describes itself as the country’s largest Arab American civil rights grassroots group, is adamant in its belief that Jerusalem is not a part of Israel. If the ADC had its way, the passports of all Americans born in Jerusalem would list “Palestine” as the place of birth. Since it is unlikely that Congress or the Executive would approve such a policy, however, the ADC wants Palestinian Americans to at least be able to pick Palestine as their country of birth—the same right to self-identification that Zivotofsky argues he should have.
According to Ayoub, most of the ADC’s staff attended the oral argument on Monday, including the team of attorneys who had submitted an amicus brief in support of the State Department. “The questions were in line with what we anticipated,” he said. They were pleased when Justice Elena Kagan characterized Section 214(d) as a “very selective vanity plate law” and Jerusalem as a “tinderbox” where the United States government’s every move regarding Israel or Palestine matters. They did not agree with Justice Antonin Scalia’s comments that the Palestinians’ feelings toward the matter were “irrelevant” or Chief Justice John G. Roberts, Jr.’s questions about whether the law would actually have “such dramatic effects on American foreign policy.” Overall, though, Ayoub thought that the justices “really got to the nuts and bolts of the questions at hand.”
The only moment that was “genuinely surprising” came when Justice Samuel A. Alito, Jr., in the course of questioning Zivotofsky’s attorney, said that he did not “completely understand… the position of the United States regarding Israeli sovereignty over Jerusalem.” Ayoub had expected the justices to be familiar with the Executive’s official policy already. Despite this and Alito’s skepticism of the State Department’s position at oral argument, Ayoub still thinks that the 64-year-old justice might wind up being the fifth or sixth vote for the Executive, alongside Justices Ginsburg, Breyer, Sotomayor, and Kagan. “He had good questions.” Ayoub is also hopeful that Justice Anthony M. Kennedy will vote to strike down Section 214(d). He sensed that “Kennedy was thinking about how the United States could be neutral on this”–the justice had suggested early on that the Executive could put “Israel” as the country of birth, but then add a disclaimer to say the birthplace line is neither an acknowledgment nor a declaration by the State Department or the President that Jerusalem belongs to Israel–but predicted that “[Kennedy] would probably fall on the side of the government.”
The Supreme Court could issue a decision anytime between now and next June. When asked what the ADC’s next move would be in the case that Zivotofsky wins and Section 214(d) is upheld, Ayoub says, “The best way to address the issue is through lawsuits and through advocacy.” He is currently working with law professors and private practitioners around the country to see whether an ADC challenge to Section 214(d) is viable. In addition to the separation of powers argument, the ADC’s amicus brief to the Court claims that the statute violates the Equal Protection Clause, as “it invidiously discriminates between Israeli Americans and Palestinian Americans, depriving Palestinian Americans of liberty.” His organization is in contact with potential plaintiffs—Palestinian Americans who would like to designate “Palestine” instead of “Jerusalem” as the birthplace in their passports.
Not everyone believes that an Equal Protection claim against 214(d) would prove successful in court, however. Constitutional law Professor Eric Segall of Georgia State University College of Law points to the lawsuit’s roots: “The reason why this case is in the Supreme Court is because Congress is granting Zivotofsky something that the President does not recognize.” But even if the President had agreed with Congress that Jerusalem belongs to Israel and allowed Zivotofsky to list Israel as his birthplace, “no one would be able to sue the President over his choice to recognize a foreign government,” Segall says.
In the meantime, Ayoub and the ADC remain optimistic. “We are prepared either way—the matter is not finished.”
Victoria Kwan is a Blog Editor for The Brooklyn Quarterly.