Is Jerusalem in Israel?

9-year old Menachem Zivotofsky got his first trip to the United States this week - to watch the oral arguments inZivotofsky v. Clintonat the US Supreme Court on Monday.

The petitioners maintain that Menachem Zivotofsky is one of an estimated 50,000 Jerusalem-born American citizens who have been unfairly barred from listing their place of birth as Israel.

The federal statute that grants those passport holders the right to essentially identify their place of birth as they see fit has been ignored by the administrations of both George W. Bush and Barack Obama, with Bush claiming that it infringes on the president’s authority to formulate foreign policy positions, such as the administration’s stance on the status of Jerusalem.

Secretary of State Hillary Rodham Clinton, the named respondent in the Zivotofskys’ litigation, heads the chief foreign policy arm of the executive branch. She has argued that the State Department’s regulations governing the passport designation of Jerusalem-born American citizens have rightly served to maintain U.S. neutrality on the sensitive issue of sovereignty over Jerusalem. The Zivotofskys contend that the policy is biased against Israel and against Jews who have a religious attachment to the land.

“Congress recognized that with regard to the 50,000 people who have a passport that says ‘Jerusalem,’ they are being denied a certain sense of self-respect that they feel they should be able to have in terms of their own identification,” Lewin told the court in reponse to a question from Justice Samuel Alito. “This is not a statute that is designed to create some political brouhaha or make a foreign policy statement.”

Arguing on behalf of Clinton, Solicitor General Donald Verrilli acknowledged that the position of the administration is that the status of Jerusalem is disputed, and he added: “A passport is not a communication by the passport holder. It’s an official United States document that communicates the position of the United States.”

In response to a challenge from Chief Justice John Roberts, Verrilli added: “I do think that this is an area in which the executive’s got to make the judgment because it’s of paramount importance that the nation speak with one voice.”

The executive’s handling of the Jerusalem issue, Verrilli told the justices, “is a very sensitive and delicate matter. This position was arrived at after very careful thought and it is enforced very carefully.”

The State Department has contended, according to the petitioners, that if American citizens who are natives of Jerusalem are permitted to self-identify as being born in “Israel,” that would create the misperception among Arab states that official U.S. policy on the sovereignty of Jerusalem had changed, which in turn could have serious foreign policy repercussions. The Zivotofskys, however, maintain there is no evidence that would happen.

Further exploring that issue, Kagan posed a hypothetical in an exchange with Verrilli. Suppose, she said, the law governing passports included a disclaimer that stated: “The recording of Israel as a place of birth on a passport shall not constitute recognition of Israel’s sovereignty over Jerusalem.”

“Would that be constitutional?” she asked.

Probably not, Verrilli responded.

I have four children who were born in Jerusalem, Israel.

We heard here that the oral argument gave the impression that the Justices would eventually decline to interfere in the case because it's a political question. But this article makes it sound like that may not be so. As someone old enough to remember Nixon v. United States (the White House tapes case, which was decided 9-0 in favor of forcing Nixon to turn over his tapes), I'd love to see the Court come down on Congress' side.