FOR IMMEDIATE RELEASE: The Lawfare Project files Amicus Curiae brief with the U.S. Supreme Court on U.S. passports designating Israel for citizens born in Jerusalem
August 16, 2011 – NEW YORK – The Lawfare Project filed an amicus curiae (“friend of the court”) brief with the U.S. Supreme Court in support of an American citizen born in western Jerusalem, Israel who has been denied a passport identifying Israel as his place of birth. The Lawfare Project’s amicus brief, which joins others filed by several members of the Senate and House of Representatives, and many organizations, argues that the State Department acted illegally in refusing to obey a federal statute requiring the Department to identify Israel as his place of birth.
The United States Supreme Court granted the petition to review the case, brought on behalf of Menachem Zivotofsky, an American citizen born in Shaare Tzedek hospital in western Jerusalem whose parents requested to have Israel listed as his birthplace on his U. S. passport. The request was made after Congress passed a statute in 2002 that directed the Department of State to so issue a passport with the birthplace listed accordingly. However, the request was denied by the Department of State, which has taken the position that the courts cannot order enforcement of the statute and, further, that the law itself is unconstitutional and need not be followed even though it was signed into law by President Bush. Two lower courts have effectively upheld the State Department position, having dismissed the case as a “political question” rather than decide the issue as a question of separation of powers under the U.S. Constitution.
When the case was brought to the attention of The Lawfare Project, research by LP Research Director Aaron Eitan Meyer showed that the Constitution and applicable legal history do not in fact support the State Department’s position, which is that Congress cannot legislate on this subject and the courts cannot consider cases of this nature. Meyer’s research showed that this claim of exclusive presidential power is not substantiated. Because this issue results in an ongoing infringement of the territorial sovereignty of a key American ally, members of the LP decided to file a brief in support of the petitioner.
Michael W. Schwartz, a New York attorney who submitted the brief on behalf of The Lawfare Project, said, “We hope the Supreme Court will reaffirm its long-held position that Congress has broad power to legislate about the passports of American citizens, and certainly has the power to override the State Department’s attempt to discriminate against American citizens who want to have “Israel” identified as their place of birth on the passport.”
Brooke Goldstein, director of The Lawfare Project, said, “When foreign enemies of the United States employ lawfare against the U.S., one of the greatest defenses lies in this nation’s commitment to the Rule of Law and its robust protection for the due process of the law. For this reason, The Lawfare Project submitted an amicus curiae brief in support of Zivotofsky and in support of rights guaranteed by the Constitution.”
The brief is available in its entirety on The Lawfare Project’s website at https://thelawfareproject.org/Zivotofsky%20Amicus%20Brief.pdf.