Top Obama Lawyer Brings Anti-Israel Bias to High Court

Israeli sovereignty over Jerusalem is like Russia's control of Crimea?

[](/sites/default/files/uploads/2014/11/zivotofsky_wide-b042c275eff15a2ea95aaee3c6be1b4f4ae3ae51.jpg)The Obama administration’s anti-Israel bias was on full display at the Supreme Court earlier this week. Its chief lawyer, Solicitor General Donald Verrilli, offered an incredibly insulting analogy while arguing a case involving whether a U.S. citizen born in Jerusalem has the right to require, upon request, that the State Department identify “Israel” as the place of birth on his or her passport. In defending the administration’s position that it has the inherent discretion to deny any such request if it believes that granting the request would undermine the president’s foreign policy objectives, Verrilli raised the bogeyman comparison to “issuing passports to people born in the Crimea tomorrow that identified Russia as the country of birth.” Verrilli said that to do so “would contradict the foreign policy position in a way that could be quite deleterious,” leaving the distinct impression that Israel’s relationship to Jerusalem should be analyzed the same way for the purposes of this case.

The case stemmed from an attempt by the parents of a boy born in Jerusalem, who is a U.S. citizen because both of his parents are U.S. citizens, to file an application for a consular report of birth abroad and a United States passport for their son, Menachem Binyamin, listing his place of birth as “Israel.” The parents were exercising a statutory right explicitly granted by Congress in the Foreign Relations Authorization Act, which still remains in effect and requires the State Department to record a Jerusalem-born U.S. citizen’s place of birth as “Israel” if requested to do so by the citizen or his or her legal guardian.

The State Department denied the parents’ request, despite the fact that their son was born in “West” Jerusalem, which even the Palestinian negotiators are not currently claiming belongs to them. The Palestinians insist that only “East” Jerusalem must become the capital of an independent Palestinian state, but the State Department’s rejection of the passport request thrusts the status of _all_ parts of Jerusalem into the conflict, including the undisputed portion.

Verrilli argued to the Supreme Court that requiring the State Department to identify in a passport, an official government-issued document, Israel as the birthplace of a U.S. citizen, known by the government to have been born in Jerusalem, would impermissibly “interject an issue of recognition policy into the content of passports.” He added that “Congress cannot compel the Executive to issue diplomatic communications that contradict the official position of the United States on a matter of recognition,” in summing up the administration’s position. He also expressed concern about the impact that such implied recognition of Israel’s claims would have on the Palestinians, whom, he noted, declared, “Jerusalem the capital of the Palestinian state.”

Verrilli characterized the Obama administration’s role as “an honest broker who could stand apart from this conflict and help bring it to resolution.” He said that adhering to the Foreign Relations Authorization Act’s passport requirement would undermine this role and “the credibility of the President on this fundamental question of where the United States stands on the status of Jerusalem until the parties work it out.”

In other words, the Obama administration has come before the Supreme Court with self-righteous proclamations about the need to preserve the president’s credibility and even-handedness in his conduct of diplomacy on the Jerusalem issue in order to justify its utter disregard of a law on the books concerning the issuance of passports. True to form, the Obama administration is asserting unbridled executive power. Claiming that Congress cannot interfere with the president’s conduct of foreign diplomacy, the State Department decided to disregard an explicit provision in a congressional statute, which requires the State Department to record a Jerusalem-born U.S. citizen’s place of birth as “Israel” if requested to do so by the citizen or his or her legal guardian. The Foreign Relations Authorization Act’s Jerusalem provision granted no discretion to the executive branch in this regard.  The Act says: “For … 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.”

“Shall,” not “may,” is the operative word. Such legal technicalities do not faze the Obama administration, however. Its Solicitor General told the Supreme Court Justices that they “ought to defer to the Executive Branch’s judgment that the place of birth listing can have significant diplomatic consequences.” Justice Stephen Breyer agreed with this position because, as Justice Breyer so humbly put it, “I’m a judge. I’m not a foreign affairs expert.”

Justice Sotomayor, acting as if she were counsel for the Palestinians rather than a Supreme Court Justice, remarked that requiring the State Department to honor a Jerusalem-born U.S. citizen’s request to record his or her place of birth as “Israel” on an official government document would be tantamount to “asking the government to lie.” She reached that bizarre conclusion on the premise that the U.S. government would be identifying Jerusalem with Israel, contrary to the government’s official recognition policy.

The more conservative-leaning Justices expressed some skepticism regarding the argument that issuing the passport as requested would interfere with the president’s diplomatic powers to decide whether or not to recognize the sovereign claims of Israel to Jerusalem. Justice Scalia acknowledged that there could be a constitutional issue if the president’s recognition powers were being directly challenged by legislation, but he questioned whether that was the case here.

Justice Alito said that while he understood “the position of the United States that Israel does not exercise full sovereignty over Jerusalem,” he suspected there were certain attributes of sovereignty exercised by Israel such as Israel’s issuance of birth certificates for births within Jerusalem or Israel’s prosecution of crimes committed within Jerusalem which “the United States recognizes that Israel is lawfully exercising.”

Justice Kennedy proposed an idea he thought might alleviate the State Department’s concerns. He suggested that the State Department could simply include a statement with the passports it issues for Jewish American citizens born in Jerusalem that “This passport does not indicate that the government of the United States and the Secretary of State recognize that Israel has sovereign jurisdiction.”

Justices Kagan and Ginsburg expressed concern about the ramifications of appearing to take sides in the dispute between the Palestinians and Israel over Jerusalem’s status.

“I mean, history suggests that everything is a big deal with respect to the status of Jerusalem,” Justice Kagan said, pointing to the recent spate of violence in Jerusalem to support her point. “And right now Jerusalem is a tinderbox,” she added, “because of issues about the status of and access to a particularly holy site there. And so sort of everything matters, doesn’t it?”

With all due respect to Justice Kagan’s concerns about not setting off a “tinderbox,” what should matter is not to give the Palestinians a veto power over the implementation of a clear congressional statutory directive because of worries about a violent Palestinian reaction.

Justice Ginsburg questioned the fairness of the statute. “What about Palestinians who were born in Jerusalem and want to have Palestine as their place of birth?” she asked. “American born Palestinians cannot do that. And that suggests that Congress had a view, and the view was that Jerusalem was properly part of Israel.”

Horror of horrors that Congress should dare tilt in the direction of the one true democracy in the Middle East that has traditionally been our closest ally in the region!

In any case, President Obama has tipped the scale in precisely the opposite direction. Solicitor General Verrilli’s argument that the president’s ability to serve as an “honest broker” will be at risk if the Court rules against the State Department’s denial of the passport request rings hollow. Obama forfeited that role when he effectively endorsed the division of Jerusalem, based on Obama’s call for Israel to withdraw essentially to the pre-June 1967 lines as the basis for Palestinian-Israeli final status negotiations on the border between the two states. Obama’s map-drawing would mean that so-called “East” Jerusalem would become a part of a new Palestine state, codifying an artificial division that would reinstate the conditions prevailing during Jordan’s illegal occupation of the eastern portion of Jerusalem, including the Old City, between 1948 and 1967.

Prior to the Jordanians’ illegal occupation, Jerusalem was an undivided city. Historically, Jews have been living in Jerusalem continuously for more than three millennia. Jerusalem has never been the capital of any sovereign nation except of the Jewish people.

In more recent times, Jews have constituted the largest single group of inhabitants in Jerusalem since at least the mid-1800s. During the Jordanians’ illegal occupation between 1948 and 1967 of the eastern section, including the Old City, which Jordan annexed and ruled from its capital, Amman, Jewish homes and sacred places were destroyed or defaced. Jews were barred from worshipping at their holiest sites. The Palestinians today want to replicate this division and impose an ethnic and religious cleansing of any Jewish residents.

“In a final resolution, we would not see the presence of a single Israeli — civilian or soldier — on our lands,” Palestinian Authority President Abbas said last year.

When the Obama administration condemns Israel for planning to expand housing for Israeli Jews living in over-crowded Jewish neighborhoods within the portion of Jerusalem that Jordan had illegally occupied until Israel reunified the city, it is not neutral or acting as an “honest broker.” It is embracing the Palestinians’ bogus claims derived from Jordan’s illegal occupation.

Earlier this week, Abbas sent a letter to the family of the Palestinian jihadist killed by Israeli soldiers after he had seriously wounded Rabbi Glick, an American citizen, who was peacefully seeking more access for Jews to pray on the Temple Mount. Abbas called the would-be assassin “a martyr defending the rights of our people and the holy places.”

The Temple Mount is holy to Jews, as well as to Muslims. It includes but is not limited to the al-Aqsa Mosque. But Muslims, whom have been abusing the administrative responsibilities Israel granted to them in connection with the site,  insist on barring Jews from worshipping anywhere on the Temple Mount site. Defending “the holy places” means, according to Abbas, enforcing such discriminatory exclusion of Jews, whom he previously referred to as “cattle,” by “all means” necessary.

Palestinian violence has followed in the wake of Abbas’s incendiary rhetoric. But the Obama administration continues to side with the Palestinian position. When asked to comment last week on Glick’s shooting by a Palestinian jihadist, State Department Spokesperson Jen Psaki deplored the shooting but quickly pivoted to expressing the Obama Administration’s “support” for “the long-standing practices regarding non-Muslim visitors to the site, to Haram al-Sharif / Temple Mount.” Just by referring to the Temple Mount first by its Arabic name – even before its English designation - and omitting any reference to its Hebrew name Har haBáyit (or Har haMoria), the State Department spokesperson displayed the Obama administration’s pro-Palestinian bias.

In what should have been a prosaic explanation to the Supreme Court of the Obama administration’s position on the relevant law, its Solicitor General exposed the true animus that the Obama administration has towards the Jewish state of Israel. Solicitor General Verrilli’s reference to Russia and Crimea in an oral argument dealing with the issuance of a passport listing Israel as the place of birth for an American citizen born in Jerusalem was a contemptible distraction intended to place Israel in an unfavorable light in front of the highest court of the land.

It is always difficult to ascertain which way the Supreme Court will rule in a controversial case from the comments made by the various Justices during oral argument. However, what could emerge is a narrowly written majority opinion that sidesteps the constitutional question of separation of powers. The State Department can honor the Jerusalem-born American citizen’s request in accordance with the statute, based simply on the uncontested fact that it was Israel which issued the official birth certificate in the first place upon which the issuers of the passport relied for information. As Justice Kennedy, often a swing vote on the Court, suggested, the administrative action of issuing the passport with such birth information can be accompanied by a clear disclaimer statement that issuing the passport in no way is meant to express the U.S. government’s diplomatic recognition of Israel’s sovereign claims to Jerusalem.

Whatever the outcome, Solicitor General Verrilli’s slanderous Russia-Crimea analogy will remain a shameful episode in the annals of Supreme Court oral arguments.

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