The Zivotofskys' argument is well set out in a 57-page written submission to the court by the couple's lawyer, Nathan Lewin. He accepts that the US president has been given great flexibility by Congress in international relations. But, he continues, "this is the unusual case in which, on a subject that calls for no emergency treatment, Congress decided that an executive branch policy implemented by Department of State bureaucrats for several decades was unjust and discriminatory. Congress overwhelmingly enacted a narrow law that gives approximately 50,000 American citizens born in Jerusalem the right to have their passports bear the same ‘place of birth' as those born in Tel Aviv or Haifa. To these Americans, personal dignity and conscientious conviction calls on them to identify themselves as born in ‘Israel'."

In response, the US State Department says the case raises a "non-justiciable political question". Even if the question is justiciable, the government continues, section 214 impermissibly infringes the president's power to recognise foreign sovereigns. The State Department points out that, since 1948, US policy has recognised no state's sovereignty over Jerusalem. Doing so now would harm national security interests and "irreversibly damage" the peace process.

Lewin dismisses the State Department's argument that the court is being asked to decide the status of Jerusalem. "Jerusalem's status for US foreign-policy purposes is not affected by whether Jerusalem-born citizens are allowed to record ‘Israel' as their place of birth," he says. "A citizen's place of birth is recorded in his or her passport only to facilitate identification."

Not so, says the State Department: "A passport is an official instrument of foreign policy through which the United States addresses foreign nations...The description of a citizen's place of birth in passports operates as an official statement of whether the United States recognises a state's sovereignty over the relevant territorial area."

Clearly, both sides are motivated by political considerations. But there is no getting round the fact that Menachem was born in Israel. The sensible thing for the US to have done in 2002 would have been to have implemented the passport provisions in the legislation. If the State Department had told the world it had no choice, there is little the Palestinians could have done about it — assuming they had even noticed that more American mothers were choosing to give birth in Israel.