Jerusalem in the Courts and on the Ground

Abstract

The status of the holy city of Jerusalem is an issue of U.S. federal law. Divided between its primarily Jewish western neighborhoods and its Arab east, which includes all of the most significant religious sites, Israel has since 1967 built large “settlement blocs” around the city to ensure Jerusalem remains its undivided capital. Its desire to do so has served as a flashpoint not only between Israel and its Arab neighbors but also within the United States, where Congress and the President wrestled for 30 years over its status as a matter of federal law before Donald Trump recognized Jerusalem (without specifying which part) as Israel's capital. Congress had long before endeavored to declare Jerusalem the undivided capital of Israel. The Foreign Relations Authorization Act of 2002 authorized U.S. citizens born in Jerusalem to have their passports designate “Israel” as their birthplace. In 2002, Menachem Zivotofsky was born in a hospital in West Jerusalem, and his parents demanded that his passport read “Israel.” The U.S. Consulate refused and he brought suit under the statute. This Article argues that the Zivotofsky litigation and Presidential speeches over the course of the litigation signal a shift in US policy toward both Jerusalem and the Israel-Palestinian conflict, one with which Trump's announcement is actually more consistent than not. U.S. Presidents have, through these challenges, effectively communicated that the window in which the two-state solution is available is a limited one, and if the Palestinian movement for self-determination shifts from one demanding sovereignty under international law to equal civil rights as a political community under the control of Israel, U.S. law is adaptable to that change. Jerusalem is already a reflection of, and an impediment to, the idea of two states.