Well, not exactly. But Judge Gladys Kessler of the U.S. District Court for the District of Columbia has dismissed two lawsuits intended to require the State Department to enter the country of birth on passports of United States citizens born in Jerusalem, Israel. I have a number of nephews and nieces who fit that description, so this is a matter of some personal interest.
This battle is old news. It ought to be a no-brainer, but just to be sure, Congress spelled it out in Section 214(d) of the 2003 Foreign Relations Authorization Act, which President Bush signed into law on September 30, 2002.
RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES.— For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.
But President Bush signed it with a strong and lengthy caveat.
Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.
Campaign promises be damned.
According to the Jerusalem Post, Judge Kessler invoked the separation of powers (along with various matters of standing) in dismissing the cases. The court lacked jurisdiction over the the cases, she held, as the issue in question was a political matter and therefore the responsibility of the executive branch.
Maybe. But where, as here, there's a clear tug-of-war between the executive and legislative branches, is it not the role of the judicial branch to determine who prevails? And if the parents of a child don't have standing to demand that the sovereign country of their child's birth be recognized on the child's passport, who does? This is way out of my area of expertise, so if anyone has some to offer, please do.
