Menachem Zivotofsky and his parents were at the high court for arguments Monday over his challenge to a State Department policy that won't allow his passport to show he was born in Israel.
The case mixes Middle Eastern politics with a battle between Congress and the president over American foreign policy.
The Obama administration says the passport policy is in line with longstanding foreign policy that says the status of Jerusalem should be resolved in negotiations between Israel and the Palestinians. Congress passed a law in 2002 seeking to give Americans born there the right to have Israel listed as their birthplace.
The justices seemed reluctant to question the administration's position that the law was an improper congressional attempt to speak for the country on foreign policy.
Justice Elena Kagan said the congressional action read more like a foreign policy statement than a passport law.
"It's a passport statute that seems to have nothing to do with immigration functions that passport statutes usually serve," Kagan said.
Nathan Lewin, a Washington lawyer representing the family, said the law concerns the ability of people to identify themselves as they wish. "It was not designed to create a kind of political brouhaha," Lewin said.
The administration, like its Republican and Democratic predecessors, says it doesn't want to stir up anger in the Arab world by appearing to take a position on the ultimate fate of Jerusalem.
The Justice Department says the U.S. has consistently declined to recognize any nation's sovereignty over Jerusalem since Israel's creation in 1948.
At the time, Jerusalem was divided, with Israel controlling the western part of the city and Jordan holding sway over the eastern sector that includes key Jewish, Muslim and Christian holy sites.
Israel captured east Jerusalem from Jordan in the 1967 Mideast war and annexed the area as part of its capital. Israel has proclaimed the once-divided city as its capital. The Palestinians claim east Jerusalem as their capital. The international community does not recognize the Israeli annexation and says the fate of the holy city should be resolved through negotiations.
The passport restriction applies to people born anywhere in Jerusalem, including the hospital in the western part where Menachem was born in 2002.
Thirty-nine lawmakers from both parties in Congress are siding with the boy and his parents, defending a provision in a 2002 law that allows Israel to be listed as the birthplace for Americans born in Jerusalem.
President George W. Bush signed the much larger law, but said the provision on Jerusalem interfered with his power over foreign affairs, including the authority to recognize foreign states. Bush issued a signing statement at the time in which he said that "U.S. policy regarding Jerusalem has not changed."
Had Menachem been born in Tel Aviv, the State Department would have issued a passport listing his place of birth as Israel. The regular practice for recording the birth of a U.S. citizen abroad is to list the country where it occurred.
But the department's guide tells consular officials, "For a person born in Jerusalem, write Jerusalem as the place of birth in the passport."
In late 2002, Naomi Zivotofsky, Menachem's mother, showed up at the U.S. embassy in Tel Aviv to get her baby a U.S. passport, one that listed Israel as his birthplace. After State Department officials refused her request, the family sued.
The Zivotofskys and their supporters at the Supreme Court point out that other federal agencies, including the Defense and Justice Departments, refer in official documents to "Jerusalem, Israel." The legal briefs also note that the hospital where Menachem was born is in west Jerusalem, over which there is no dispute about Israeli sovereignty, except by parties that oppose the nation's existence at all.
The family also says that the State Department has made an exception for U.S citizens born in Taiwan. Their passports may list their place of birth as Taiwan, rather than China.
Federal courts have so far said they have no authority to consider the matter, which they have labeled a political dispute that is best resolved by the other two branches of government without court involvement.
The Supreme Court is considering the political dispute issue, as well as the substance of the family's plea that the law regarding passports be enforced.
A decision is expected by spring.
The case is Zivotofsky v. Cllinton, 10-699.
