But the justices’ debate was about means rather than ends, as a decision in favor of the executive branch seemed likely whether the court stepped in or abstained.
Some of the justices said the case presented the sort of political question not fit for judicial resolution, a stance that would as a practical matter amount to a ruling for the executive branch.
“Why is it any of our business which is the better foreign policy position?” Justice Antonin Scalia asked.
Others suggested that they were prepared to resolve the question — in favor of the executive branch.
“What entitles Congress to trench on a presidential power that has been exercised virtually since the beginning of the country?” Justice Sonia Sotomayor asked.
The case was brought by the parents of Menachem B. Zivotofsky, who was born in Jerusalem in 2002, not long after Congress enacted a law ordering the State Department to “record the place of birth as Israel” in passports of American children born in that city if their parents ask. President George W. Bush signed the law but said he would not follow it because it “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs.” The Obama administration takes the same view. In a brief, it told the justices that the status of Jerusalem should be resolved by negotiations between Arabs and Israelis.
Solicitor General Donald B. Verrilli Jr., arguing for the government on Monday, said that “the decision by the executive with respect to how it’s going to handle the status of Jerusalem in passports is a very sensitive and delicate matter.”
But Nathan Lewin, a lawyer for the Zivotofskys, said that the entire matter was minor and that Congress has long regulated the contents of passports.
“This is not a statute that is designed to create some political brouhaha or make a foreign policy statement,” Mr. Lewin said.
Justice Samuel A. Alito Jr. responded that the title of the provision — “United States policy with respect to Jerusalem as the capital of Israel” — indicated a foreign policy goal. Justice Elena Kagan, too, said the provision “seems to have everything to do with Congress’s declaration of a foreign policy.”
Justice Anthony M. Kennedy said the Zivotofskys were pressing “a narrow, crabbed interpretation of the president’s foreign affairs power.” Justice Sotomayor seemed to agree, saying the interpretation could result in “hobbling the president.”
Mr. Lewin argued that the provision was unobjectionable because it merely gave parents the option of asking that passports describe their children’s birthplace as Israel. Justice Kagan responded that the argument would be stronger if they were also allowed to ask that the passport say Palestine.
Mr. Lewin said that that option existed, though only for people born in Jerusalem before 1948.
“Well,” Justice Kagan said, “you have to be very old to say Palestine.”
Justice Ruth Bader Ginsburg, who was born in 1933, jumped in. “Not all that old,” she said, and the courtroom responded with laughter.
Near the end of the argument in the case, Zivotofsky v. Clinton, No. 10-699, Justice Sotomayor discussed where the court had found itself.
“If we call this a political question and don’t address the merits, the outcome is that the president is saying that he’s entitled to ignore the Congress,” she said. “I don’t know what kind of message that sends, but it’s a little unsettling that a court charged with enforcing the laws passed by Congress are basically saying we are not going to determine whether this law is constitutional or unconstitutional.”