The case of Menachem Binyamin Zivotofsky v. Hillary Rodham Clinton, Secretary of State, 2011 revolved around the issue of whether Congress could require the U.S. Department of State to record "Israel" as the place of birth on a passport for a child born in Jerusalem upon request from his parents. The Supreme Court was asked to decide if this requirement infringed upon the President's constitutional power over foreign affairs and recognition powers. The Obama administration argued that it did infringe because recognizing Jerusalem as part of Israel would undermine its ability to act as an honest broker in Middle East peace negotiations. In contrast, Zivotofsky's parents claimed that not allowing their son’s passport to list “Israel” violated federal law enacted by Congress which gave them this right. This case highlighted tension between executive and legislative branches regarding control over foreign policy decisions.

In the dissenting opinion for Zivotofsky v. Clinton, Justice Scalia argued that the case was not a political question and thus should be decided by the courts. He contended that it was within Congress's power to regulate passports and therefore they had authority to pass legislation allowing U.S citizens born in Jerusalem to list Israel as their place of birth on their passports if they so wished. According to him, this did not infringe upon executive powers or interfere with foreign policy decisions because it did not force recognition of Israeli sovereignty over Jerusalem but merely allowed individuals a choice in how they identified themselves. Furthermore, he stated that even if such an act could potentially cause diplomatic issues, this would still fall under legislative jurisdiction as part of its role in managing international commerce.