Amicus brief signed by 58 Members of Congress will be submitted to the United States Court of Appeals for the District of Columbia Circuit in upcoming case, Zivotofsky vs. Secretary of State

Washington, DC – U.S. Rep. Howard L. Berman, the top Democrat on the House Foreign Affairs Committee, along with the Committee Chairman Ileana Ros-Lehtinen (R-FL), collected 58 Congressional signatures on an amicus brief in a case involving the family of 9 year-old Menachem Zivotofsky.

The parents of Menachem Zivotofsky, an American citizen, have called on the State Department to list Israel as Menachem’s birthplace – a right accorded by Congressional legislation in 2002 but never implemented by the Executive Branch.

Menachem Zivotofsky was born in Jerusalem in 2002, shortly after Congress passed legislation requiring the State Department to record the place of birth as Israel in passports of Americans born in Jerusalem, if the passport-holder so requests. President Bush signed the legislation into law because it contained many measures he supported, but he explicitly rejected the provision regarding passports and Jerusalem, claiming it “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs.” The Obama Administration has continued the Bush policy in that regard.

“This is a critical case, one that I am proud to be actively involved in for the sake of the Zivotofsky family, and all American families with children born in Jerusalem, the capital of Israel,” said Rep. Howard Berman (D-CA). “American citizens born in Jerusalem should have the same right that citizens born anywhere else enjoy – the right to have their birthplace accurately reflected on their passport.”

Berman and Ros-Lehtinen led a similar effort last fall for a Supreme Court case that ultimately determined that the courts do indeed have jurisdiction in the Zivotofsky matter.


At issue in this case is the refusal of the past two Administrations to enforce provisions of the Foreign Relations Authorization Act of Fiscal Year 2003, which was signed into law in 2002. That legislation required that the State Department issue passports to U.S. citizens born in Jerusalem, if those citizens so choose, to denote “Israel” as their place of birth. The longstanding State Department practice has been—and, in disregard of the law, remains—to note the place of birth on the passports of such citizens as simply “Jerusalem.” We believe it is important that the State Department be required to comply with the law regarding this matter, but there are also wider constitutional concerns that merit the House’s direct involvement.

In deciding this case, the D.C. Circuit will consider whether Congress retains predominant authority in matters related to passports and foreign-born citizens, or whether, instead, the Secretary of State can refuse to comply with a validly-enacted statute in these matters. Further, it will evaluate whether a law such as the Foreign Relations Authorization Act of Fiscal Year 2003 impermissibly infringes on the President’s power to recognize foreign sovereignty. As such, it goes to the heart of Congress’ ability to legislate on matters of immigration, naturalization, and commerce among the nations, as authorized under the Constitution. It is critical that we speak out on the prerogatives of the Legislative Branch and affirm the appropriate parameters of Executive Branch authority in foreign affairs.

Recently, the United States Supreme Court held—in accordance with an amicus brief submitted by Members of Congress to the Court last year—that this issue was properly a matter for the courts to decide, and was not an unreviewable “political question” (as the Executive Branch claimed), and the case was remanded to the D.C. Circuit for a decision on the merits.