“Thus said the Lord, God, ‘This is Jerusalem! Among the nations have I placed her and all around her are countries.” Ezekiel (5:5)

Jerusalem, the eternal capital of Jewish Israel, will not be recognized as such in US passports any time soon.

In 2002, then-President George W. Bush signed a law, titled “Record of Place of Birth as Israel for Passport Purposes”, which allowed US citizens to have Israel listed on their passports as their birth country if born in Jerusalem.  This was not an automatic assumption, as the US, along with most of the rest of the world, does not recognize Israeli sovereignty over the entire city and refuses to recognize it as Israel’s capital.  Like most countries, the US maintains its embassy in Tel Aviv.

At the time, Bush insisted that the law be taken as advice, not a requirement.  Otherwise, it would “impermissibly interfere” with the president’s right to decide foreign policy on behalf of the country.  He also stated then that “U.S. policy regarding Jerusalem has not changed.”

The first test of the new law came several months later, with Menachem Zivotofsky, born in Jerusalem to American parents Ari and Naomi Zivotofsky.  They sued Secretary of State Clinton and the State Department when their request to have their son’s passport read “Jerusalem, Israel” was denied.  Currently, US citizens born in Jerusalem have their birthplace registered as “Jerusalem, Jerusalem.”

The Zivotofskys are determined to have their son’s passport corrected in time for his Bar Mitzvah at age thirteen, according to their lawyer, Nathan Lewin.

So far, the case has bounced around the courts.  The initial suit, in 2004, was rejected by the US District Court in DC because it was deemed a political, not judicial, question.  On appeal, in 2006, the court allowed the suit, but questioned the validity of the law in the first place.  Again, the case was ultimately rejected because it was considered political, but the Supreme Court concluded in 2012 that the case could be heard judicially.

Now, a federal appeals court has invalidated the law upon which the suit was based.  The three-judge panel of the US Court of Appeals for the District of Columbia Circuit decided unanimously that the president “exclusively holds the power to determine whether to recognize a foreign sovereign,” according to the decision written by Judge Karen Henderson on behalf of panel.

Nathan Diament, executive director of public policy for the Orthodox Union, issued a statement condemning the ruling.  “The Orthodox Union has long advocated for the principle that the holy city of Jerusalem is the eternal and indivisible capital of the State of Israel and the Jewish People. In this case, this principle is buttressed by the factual reality that Israel has made the modern city of Jerusalem its political capital. This fact has been recognized again and again by the United States Congress and duly enacted laws, even as such recognition has been practically unrecognized by the Executive Branch. The practice of the State Department to refuse compliance with the law is wrong and we will support the appeal of this ruling to the U.S. Supreme Court.”

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