Please stay on this. I am — I am willing — our — our cases say repeatedly that the President is the sole instrument of the United States for the conduct of foreign policy, but to be the sole instrument and to determine the foreign policy are two quite different things. To say he’s the sole instrument simply means that congressmen traveling abroad, or globetrotting ex-presidents, nobody except the President of the United States pronounces the foreign policy. But it doesn’t necessarily mean that the President determines everything in foreign policy. He’s the instrument, but there is certainly room in — in those many cases for saying that Congress can say what the — what it’s — what the country’s instrument is supposed to do.

* * *

Thus spake Justice Scalia as the Supreme Court started to dig in on the question of whether the Congress has the power to require the United States to issue a nine-year-old American boy, Menachem Binyamim Zivotofsky, a passport saying that he was born at Israel. Congress has passed just such a law, saying the youngster is entitled to just such a passport, if he wants one, because the hospital in which he was born, Shaare Zedeck, is in Jerusalem. Secretary of State Clinton doesn’t want to issue the document, even though she voted for the law back when she was in the Senate, because she now fears it would rile the Arabs.

What a wonderful argument erupted over the question in a chamber that was packed to the gunwales. At first, we don’t mind saying, it didn’t look good for Master Zivotofsky. His lawyer, Nathan Lewin, was the first to speak. The justices were all over him as he tried to suggest that this is a much less cataclysmic case than Mrs. Clinton seems to fear. He sought to avoid the suggestion that it’s a great test of who has the final power in foreign affairs. Rather, he portrayed it as simply a matter of Congress regulating the content of a passport that the Congress itself creates and pays for.

The justices, however, clearly saw at least the possibility that the case was about a lot more than that. The legislation, however narrow its focus, was passed in the context of the vast struggle over a city that is Judaism’s holiest and the capital of the Jewish state. There was some discussion of whether the matter was too much of a political question to be justiciable, which would have left in place the rulings of the lower courts, which found for Mrs. Clinton. But the solicitor general of the United States, Donald Verrilli, wanted more than that, a ruling by the Supreme Court that the president has sole authority in the matter.

If there was an ideological dimension to the case, it was hard to detect from the to and fro of the hearing this morning. Justices Sotomayor, Kagan, Ginsburg, Kennedy, Alito and Breyer, not to mention the Chief Justice, jumped into the fray with keen questions. Feature, for example, this exchange, in which General Verrilli seemed to suggest that Congress has no role — at all — in the recognition of foreign governments:

JUSTICE GINSBURG: Then, Mister — General Verrilli, then you are taking the position that this is not a shared authority; it’s an exclusive authority; that there is no role for Congress. Am I right? Or is there some role in recognition for Congress?

GEN. VERRILLI: Our position, Justice Ginsburg, is that the recognition power is exclusive to the President.

JUSTICE SCALIA: What if — what if the recognition of a breakaway province of a foreign country by the United States will clearly provoke a war with that country. Would Congress have the power to decree that the President shall not recognize that breakaway province, knowing — knowing that if he does recognize it, that country will declare war on the United States?

GEN. VERRILLI: I think, Justice Scalia, that’s a situation in which the President would exercise that recognition power very carefully —

JUSTICE SCALIA: No, no. We have a foolish President. [Laughter.] Contrary to our entire history, we have a —[Laughter.]

GEN. VERRILLI: I think — although I don’t — I just don’t think that in a situation like that, the President would exercise a recognition power, but if — but if the President did, it’s the President’s judgment to make.

It’s hard to say whether the Justices in the end will buy the argument that legislature is completely without a role. At another point, Justice Sotomayor posed this point: “Let’s assume that a dozen nations said this designation on the passport as we view is an act of war. If the United States is going to do this, we’re going to view it as an act of war. Would that then permit the President to ignore Congress’s — ” The court’s transcript indicates she let the last word hang in the air. Mr. Lewin replied that “if Congress determines that in any event this is what the passport should say, then that is Congress . . . ” He was interrupted by the justice, but his point was clear enough. It is to Congress, after all, that the Constitution delegates the enumerated power to declare war in the first place.