The petitioner in this case, Menachem Zivotofsky, was born in Jerusalem in 2002. His parents requested “Israel” as the place of birth on his passport. The State Department refused, and by his first birthday, the infant boy was the plaintiff in a case that is now reaching the Supreme Court a second time.

The D.C. Circuit in 2009 threw out the case, saying the dispute was a “political question”—a constitutional term for a dispute between the branches that courts are not competent to decide. The Supreme Court in 2011 reversed the D.C. Circuit and sent the case back; courts can and must decide the validity of a statute, it said.

The D.C. Circuit again held that Zivotofsky has no claim. “[W]e conclude that the President exclusively holds the power to determine whether to recognize a foreign sovereign,” a three-judge panel held. That power, it reasoned, flows from the provision in Article II, Section 3 that the president “shall receive Ambassadors and other public Ministers.”

The Supreme Court took the case again. The government is arguing for exclusive presidential power; the Zivotofsky family (and congressional amicus briefs) argue that Congress has power to regulate passports under its power to regulate “commerce with foreign nations,” to “establish a uniform rule of naturalization,” and other powers.

There are basically three ways to approach the issue. First, a judge can look at the history of the framing of the provision at issue and consider what Justice Antonin Scalia would call “the original public meaning” of the document. That study seems inconclusive; just as one example, Alexander Hamilton insisted before ratification that the “reception” power was “more a matter of dignity than of authority” and “without consequence in the administration of the government.” After ratification, as advocate for President George Washington, he thundered that the same power gave the president complete control over which governments the United States would recognize. Small wonder that Justice Robert H. Jackson once complained that the early materials are “almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

Second, a judge could look at the practice followed by the two branches over the past 225 years. Inconclusive again. Basically, presidents have often insisted they have the power exclusively, except when Congress got ahead of them and the president ran after it, screaming, “I’m leading!”

Finally, a judge could consider which rule would lead to better results. “Because U.S. policy toward Jerusalem is inextricably linked to this nation’s broader foreign policy in the region, confusion about the President’s recognition could undermine the United States’ credibility with the parties to the peace process,” the government argues in its brief.