For those who don't follow the intricacies of Middle East diplomacy, it might seem self-evident that the passport of an American child born in Jerusalem should note "Israel" as his place of birth. That's also the view of Congress, which enacted legislation specifically allowing such a notation. But, like its predecessors of both parties, the Obama administration disagrees. This week, in a case involving a 10-year-old boy, a federal appeals court rightly ruled that the Constitution entrusts this decision to the executive branch.
The 3-0 decision by the U.S. Court of Appeals for the District of Columbia Circuit upheld the State Department's refusal to allow the parents of Menachem Binyamin Zivotofsky, who was born in Jerusalem in 2002, to list his birthplace on his passport as "Jerusalem, Israel." In doing so, the court declared unconstitutional a 2002 law that directed the secretary of State, at the request of a U.S. citizen born in Jerusalem (or the citizen's parent), to record the place of birth as Israel.
Writing for the court, Judge Karen LeCraft Henderson persuasively concluded that the law intruded on the president's exclusive authority to recognize foreign governments and their territorial claims. Henderson conceded that Congress had the power to regulate rules for the issuing of passports, but said that power could not be used to nullify "a carefully calibrated and long-standing executive branch policy of neutrality toward Jerusalem."