Jerusalem in the Courts and on the Ground

This Article analyzes presidential speeches and the pleadings of the U.S. Government in response to a lawsuit by Jerusalem-born U.S. citizen Menachem Zivotofsky seeking to have Israel listed in his U.S. passport rather than Jerusalem as U.S. law now requires. The picture that emerges is one of a growing flexibility in U.S. policy toward Israel/Palestine in general and Jerusalem in particular. That flexibility moves away from adherence to two states (and impliedly two capitals in Jerusalem) to one emphasizing various kinds of democracy that may characterize a future Israeli state. Part I of this Article provides a brief summary of Jerusalem in the history of the Israeli/Palestinian conflict as well as U.S. law and policy toward Jerusalem. Part II provides a brief overview of the scholarly disagreement over how and under what circumstances the United States develops its foreign policy preferences focusing on interpretations of international law. Contesting the widespread view that foreign policy positions and interpretations of international law are traceable to responsible bureaucracies who act with a clear path to their desired outcome, Part II argues that U.S. foreign policy and legal positions are subject to intermittent but nevertheless influential legal pressures-what Rebecca Ingber describes as interpretation catalysts -that regularly force the United States to frame or re-frame foreign policy preferences. These catalysts include both presidential speeches and litigation over foreign policy positions. Part II analyzes two of these framing events: Presidential speeches from Clinton to Obama and pleadings filed in the long-running dispute between Menachem Zivotofsky and the U.S. Government over the designation in his passport. That litigation is, in effect, the latest round in the dispute between Congress and the President over Jerusalem\u27s status under U.S. law. Part III applies insights from the analysis in Part II to current trends in the movement for Palestinian self-determination. Those trends demonstrate a shift in ideology from self-determination as a form of sovereignty under international law to self-determination as civil rights and equality with Israeli citizens. As a result of these movements, I ultimately argue that U.S. policy is shifting in preparation for the window to two-states closing, if it has not closed already