SUPREME COURT OF THE UNITED STATES
_________________
No. 13–628
_________________
MENACHEM BINYAMIN ZIVOTOFSKY, by his parents
and guardians, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER
v. JOHN KERRY, SECRETARY OF STATE
on writ of certiorari to the united states
court of appeals for the district of columbia circuit
[June 8, 2015]
Justice Thomas, concurring in the judgment in
part and dissenting in part.
Our Constitution allocates the powers of the
Federal Government over foreign affairs in two ways. First, it
expressly identifies certain foreign affairs powers and vests them
in particular branches, either individually or jointly. Second, it
vests the residual foreign affairs powers of the Federal
Government—
i.e., those not specifically enumerated in
the Constitution—in the President by way of Article
II’s Vesting Clause.
Section 214(d) of the Foreign Relations
Authorization Act, Fiscal Year 2003, ignores that constitutional
allocation of power insofar as it directs the President, contrary
to his wishes, to list “Israel” as the place of birth
of Jerusalem-born citizens on their passports. The President
haslong regulated passports under his residual foreign affairs
power, and this portion of §214(d) does not fall within any of
Congress’ enumerated powers.
By contrast, §214(d) poses no such problem
insofar as it regulates consular reports of birth abroad. Unlike
passports, these reports were developed to effectuate the
naturalization laws, and they continue to serve the role of
identifying persons who need not be naturalized to obtain
U. S. citizenship. The regulation of these reports does not
fall within the President’s foreign affairs powers, but
within Congress’ enumerated powers under the Naturalization
and Necessary and Proper Clauses.
Rather than adhere to the Constitution’s
division of powers, the Court relies on a distortion of the
President’s recognition power to hold both of these parts of
§214(d) unconstitutional. Because I cannot join this faulty
analysis, I concur only in the portion of the Court’s
judgment holding §214(d) unconstitutional as applied to
passports. I respectfully dissent from the remainder of the
Court’s judgment.
I
A
The Constitution specifies a number of foreign
affairs powers and divides them between the political branches.
Among others, Article I allocates to Congress the powers
“[t]o regulate Commerce with foreign Nations,”
“[t]o establish an uniform Rule of Naturalization,”
“[t]o define and punish Piracies and Felonies committed on
the high Seas, and Offenses against the Law of Nations,” and
“[t]o declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water.”
Art. I, §8. For his part, the President has certain
express powers relating to foreign affairs, including the powers,
“by and with the Advice and Consent of the Senate,” to
“appoint Ambassadors,” and “to make Treaties,
provided two thirds of the Senators present concur.”
Art. II, §2. He is also assigned certain duties with
respect to foreign affairs, including serving as “Commander
in Chief ofthe Army and Navy of the United States,”
ibid., and“receiv[ing] Ambassadors and other public
Ministers,” Art. II, §3.
These specific allocations, however, cannot
account for the entirety of the foreign affairs powers exercised by
the Federal Government. Neither of the political branches is
expressly authorized, for instance, to communicate with foreign
ministers, to issue passports, or to repel sudden attacks. Yet the
President has engaged in such conduct, with the support of
Congress, since the earliest days of the Republic. Prakash &
Ramsey, The Executive Power Over Foreign Affairs, 111 Yale
L. J. 231, 298–346 (2001) (Prakash & Ramsey).
The President’s longstanding practice of
exercising unenumerated foreign affairs powers reflects a
constitutional directive that “the President ha[s] primary
responsibility—along with the necessary power—to
protect the national security and to conduct the Nation’s
foreign relations.”
Hamdi v.
Rumsfeld, 542
U. S. 507, 580 (2004) (Thomas, J., dissenting). Specifically,
the Vesting Clause of Article II provides that “[t]he
executive Power shall be vested in a President of the United
States.” Art. II, §1. This Clause is notably
different from the Vesting Clause of Article I, which provides only
that “[a]ll legislative Powers
herein granted shall be
vested in a Congress of the United States,” Art. I,
§1 (emphasis added). By omitting the words “herein
granted” in Article II, the Constitution indicates that the
“executive Power” vested in the President is not
confined to those powers expressly identified in the document.
Instead, it includes all powers originally understood as falling
within the “executive Power” of the Federal
Government.
B
Founding-era evidence reveals that the
“executivePower” included the foreign affairs powers of
a sovereign State. See Prakash & Ramsey 253. John Locke’s
17th-century writings laid the groundwork for this understanding of
executive power. Locke described foreign affairs
powers—including the powers of “war and peace, leagues
and alliances, and all the transactions with all persons and
communities without the commonwealth”—as
“federative” power. Second Treatise of Civil Government
§146,p. 73 (J. Gough ed. 1947). He defined the
“executive” power as “comprehending the execution
of the municipal laws of the society within itself upon all that
are parts of it.”
Id., §147, at 73. Importantly,
however, Locke explained that the federative and executive powers
must be lodged together, lest “disorder and ruin” erupt
from the division of the “force of the public.”
Id., §148, at 73–74.
Subsequent thinkers began to refer to both of
these powers as aspects of “executive power.” William
Blackstone, for example, described the executive power in England
as including foreign affairs powers, such as the“power of
sending embassadors to foreign states, and receiv-ing embassadors
at home”; making “treaties, leagues, and alliances with
foreign states and princes”; “making war and
peace”; and “issu[ing] letters of marque and
reprisal.” 1 Commentaries on the Laws of England 245, 249,
250, 242–252 (1765) (Blackstone). Baron de Montesquieu
similarly described executive power as including the power to
“mak[e] peace or war, sen[d] or receiv[e] embassies,
establis[h] the public security, and provid[e] against
invasions.” The Spirit of the Laws bk. XI, ch. 6, p. 151 (O.
Piest ed., T. Nugent transl. 1949). In fact, “most writers of
[Montesquieu’s] tim[e] w[ere] inclined to think of the
executive branch of government as being concerned nearly entirely
with foreign affairs.” W. Gwyn, The Meaning of the Separation
of Powers 103 (1965).
That understanding of executive power prevailed
in America. Following independence, Congress assumed control over
foreign affairs under the Articles of Confederation. See,
e.g., Articles of Confederation, Art. IX, cl. 1. At that
time, many understood that control to be an exercise of executive
power. See Prakash & Ramsey 272, 275–278. Letters among
Members of the Continental Congress, for instance, repeatedly
referred to the Department of Foreign Affairs, established under
the control of the Continental Congress, as an “Executive
departmen[t]” and to its officers as
“ ‘Executives or Ministers.’ ”
Id., at 276, and nn. 194–196. Similarly, the Essex
Result of 1778—an influential report on the proposed
Constitution for Massachusetts—described executive power as
including both “external” and “internal”
powers: The external executive power “comprehends war, peace,
the sending and receiving ambassadors, and whatever concerns the
transactions of the state with any other independent state,”
while the internal executive power “is employed in the peace,
security and protection of the subject and his property.”
Essex Result, in The Popular Sources of Political Authority:
Documents on the Massachusetts Constitution of 1780, pp. 324, 337
(O. Handlin & M. Handlin eds. 1966).
This view of executive power was widespread at
the time of the framing of the Constitution. Thomas
Rutherforth’s Institutes of Natural Law—a treatise
routinely cited by the Founders, McDowell, The Limits of Natural
Law: Thomas Rutherforth and the American Legal Tradition, 37 Am. J.
Juris. 57, 59, and n. 10 (1992)—explained that
“external executive power” includes “not only
what is properly called military power, but the power likewise of
making war or peace, the power of engaging in alliances for an
encrease of strength, . . . the power of entering into
treaties, and of making leagues to restore peace . . .
and the power of adjusting the rights of a nation in respect of
navigation, trade, etc.,” 2 Institutes of Natural Law
55–56, 54–61 (1756). During the ratification debates,
James Wilson likewise referred to the “executive powers of
government” as including the external powers of a nation. 2
J. Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 500–502 (1863). And
Alexander Hamilton, writing as Publius, asserted that “[t]he
actual conduct of foreign negotiations,” “the
arrangement of the army and navy, the directions of the operations
of war . . . and other matters of a like nature”
are “executive details” that “fal[l] peculiarly
within the province of the executive department.” The
Federalist No. 72, pp. 435–436 (C. Rossiter ed. 1961).
Given this pervasive view of executive power, it
is unsurprising that those who ratified the Constitution understood
the “executive Power” vested by Article II to include
those foreign affairs powers not otherwise allocated in the
Constitution. James Iredell, for example, told the North Carolina
ratifying convention that, under the new Constitution, the
President would “regulate all intercourse with foreign
powers” and act as the “primary agent” of the
United States, though no specific allocation of foreign affairs
powers in the document so provided. 4 Elliot,
supra, at 127,
128. And Alexander Hamilton presumed as much when he argued that
the “[e]nergy” created in the Constitution’s
Executive would be “essential to the protection of the
community against foreign attacks,” even though no specific
allocation of foreign affairs powers provided for the Executive to
repel such assaults. See The Federalist No. 70, p. 423. These
statements confirm that the “executive Power” vested in
the President by Article II includes the residual foreign affairs
powers of the Federal Government not otherwise allocated by the
Constitution.[
1]
C
Early practice of the founding generation also
supports this understanding of the “executive Power.”
Upon taking office, President Washington assumed the role of chief
diplomat; began to direct the Secretary of Foreign Affairs who,
under the Articles of Confederation, had reported to the Congress;
and established the foreign policy of the United States. Prakash
& Ramsey 296–297. At the same time, he respected
Congress’ prerogatives to declare war, regulate foreign
commerce, and appropriate funds.
Id.,at 296.
For its part, Congress recognized a broad
Presidential role in foreign affairs.
Id., at 297–298.
It created an “Executive department” called the
“Department of Foreign Affairs,” with a Secretary
wholly subordinate to the President. An Act for Establishing an
Executive Department, to be denominated the Department of Foreign
Affairs, 1Stat. 28. The enabling Act provided that the Secretary
was to “perform and execute such duties as shall from time to
time be enjoined on or intrusted to him by the President,”
including those “relative to correspondences, commissions or
instructions to or with public ministers or consuls, from the
United States, or to negotiations with public ministers from
foreign states or princes, or to memorials or other applications
from foreign public ministers or other foreigners, or to such other
matters respecting foreign affairs.” §1,
id., at
29. By referring to those duties as those “the President of
the United States shall assign to the said department,”
ibid., the Act presumed the President inherently possessed
power to engage in those tasks.
Subsequent interactions between President
Washington and Congress indicated that the parties involved
believed the Constitution vested the President with authority to
regulate dealings with foreign nations. In his first State of the
Union Address, President Washington told Congress that “[t]he
interests of the United States require, that our intercourse with
other nations should be facilitated by such provisions as will
enable me to fulfil my duty in that respect.” First Annual
Message (Jan. 8, 1790), in George Washington: A Collection 467, 468
(W. Allen ed. 1988). To that end, he asked for compensation for
employees and a fund designated for “defraying the expenses
incident to the conduct of our foreign affairs.”
Ibid.
Congress responded by passing “An Act providing the means of
intercourse between the United States and foreign nations.”
Ch. 22, 1Stat. 128.
During the congressional debate over that bill,
the President sought an opinion from Thomas Jefferson—at that
time, Secretary of State—about the scope of the
Senate’s power in this area. Jefferson responded that
“[t]he transaction of business with foreign nations is
executive altogether.” Opinion on the Powers of the Senate
(Apr. 24, 1790), in 5 Writings of Thomas Jefferson 161 (P. Ford ed.
1895). As such, Jefferson concluded that it properly belonged
“to the head” of the executive department,
“except as to such portions of it as are specially submitted
to the senate.”
Ibid. According to Washington’s
diaries, he received similar advice from John Jay and James Madison
about “the propriety of consulting the Senate on the places
to which it would be necessary to send persons in the Diplomatic
line, and Consuls.” 6 The Diaries of George Washington 68 (D.
Jackson & D. Twohig eds. 1979). All agreed that the Senate
lacked a “Constitutional right to interfere with either,
& that it might be impolitic to draw it into a precedent their
powers extending no farther than to an approbation or
disapprobation of the person nominated by the President all the
rest being Executive and vested in the President by the
Constitution.”
Ibid.
Washington followed this advice. He corresponded
directly with U. S. ministers, moved them among countries, and
removed them from their positions at will. Prakash & Ramsey
308–309. He also corresponded with foreign leaders,
representing that his role as the “ ‘supreme
executive authority’ ” authorized him to receive
and respond to their letters on behalf of the United States.
Id., at 317. When foreign ministers addressed their
communications to Congress, he informed them of their error.
Id., at 321.
Washington’s control over foreign affairs
extended beyond communications with other governments. When
confronted with the question whether to recognize the French
Republic as the lawful government of France, he received the French
Republic’s emissary without the involvement of Congress.
Id., at 312. When he later concluded that the emissary had
acted inappropriately, he again acted without the involvement of
Congress to ask the French executive to recall him.
Id., at
314–315. Washington also declared neutrality on behalf of the
United States during the war between England and France in 1793,
see Proclamation of Neutrality (Apr. 22, 1793), an action Hamilton
pseudonymously defended as a proper exercise of the power vested in
the President by the “general grant” of executive power
in the Vesting Clause. Pacificus No. 1 (June 29, 1793), Letters of
Pacificus and Helvidius 10 (1845);
id., at 3. For its part,
Congress applauded the President’s decision. 4 Annals of
Cong. 18, 138 (1793).
In short, the practices of the Washington
administration and First Congress confirm that Article II’s
Vesting Clause was originally understood to include a grant of
residual foreign affairs power to the Executive.
II
The statutory provision at issue implicates
the President’s residual foreign affairs power. Section
214(d) instructs the Secretary of State, upon request of a citizen
born in Jerusalem (or that citizen’s legal guardian), to list
that citizen’s place of birth as Israel on his passport and
consular report of birth abroad, even though it is the undisputed
position of the United States that Jerusalem is not a part of
Israel. The President argues that this provision violates his
foreign affairs powers generally and his recognition power
specifically. Zivotofsky rejoins that Congress passed §214(d)
pursuant to its enumerated powers and its action must therefore
take precedence.
Neither has it quite right. The President is not
constitutionally compelled to implement §214(d) as it
appliesto passports because passport regulation falls squarely
within his residual foreign affairs power and Zivotofsky has
identified no source of congressional power to require the
President to list Israel as the place of birth for a citizen born
in Jerusalem on that citizen’s passport. Section 214(d) can,
however, be constitutionally applied to con-sular reports of birth
abroad because those documentsdo not fall within the
President’s foreign affairs authority but do fall within
Congress’ enumerated powers over naturalization.[
2]
A
1
In the Anglo-American legal tradition,
passports have consistently been issued and controlled by the body
exercising executive power—in England, by the King; in the
colonies, by the Continental Congress; and in the United States, by
President Washington and every President since.
Historically, “passports were classed with
those documents known as safe conducts or letters of protection, by
which the person of an enemy might be rendered safe and
inviolable.” G. Hunt, U. S. Dept. of State, The American
Passport: Its History 3 (1898). Letters of safe conduct and
passports performed different functions in England, but both grew
out of the King’s prerogative to regulate the
“nation’s intercourse with foreign nations,” see
1 Blackstone 251–253. The King issued letters of safe conduct
during times of war,
id., at 252, whereas passports were
heirs to a tradition of requiring the King’s license to
depart the country, see,
e.g., Richard II, Feb. 26, 1383, 2
Calendar of Close Rolls, pp. 281–282 (1920); 1 E. Turner, The
Privy Council of England in the Seventeenth and Eighteenth
Centuries 1603–1784, p. 151 (1927); see also K. Diplock,
Passports and Protection in International Law, in 32 The Grotius
Society, Transactions for the Year 1946, Problems of Public and
Private International Law 42, 44 (1947).
Both safe conducts and passports were in use at
the time of the founding. Passports were given “for greater
security” “on ordinary occasions [to] persons who meet
with no special interference in going and coming,” whereas
“safe-conduct[s]” were “given to persons who
could not otherwise enter with safety the dominions of the
sovereign granting it.” 3 E. de Vattel, The Law of Nations
§265, p. 331 (1758 ed. C. Fenwick transl. 1916) (emphasis
deleted). Both were issued by the person exercising the external
sovereign power of a state. See
id., §§162, 275,
at 69, 332. In the absence of a separate executive branch of
government, the Continental Congress issued passports during the
American Revolution, see,
e.g., Resolution (May 9, 1776), in
4 Journals of the Continental Congress 340–341; Resolution
(May 24, 1776), in
id., at 385; as did the Congress under
the Articles of Confederation, see,
e.g., 25
id., at
859 (Jan. 24, 1783) (discussing its authority to issue passports
under the war power).
After the ratification of the Constitution,
President Washington immediately took responsibility for issuing
passports. Hunt,
supra, at 3. Although
“ ‘[p]ast practice does not, by itself, create
power,’ ” “a governmental practice [that]
has been open, widespread, and unchallenged since the early days of
the Republic . . . should guide our interpretation of an
ambiguous constitutional provision.”
NLRB v.
Noel
Canning, 573 U. S. ___, ___ (2014) (Scalia, J., concurring
in judgment) (slip op., at 5) (alteration in original; some
internal quotation marks omitted). The history of the
President’s passport regulation in this country is one such
practice. From the ratification until the end of the Civil War, the
President issued passports without any authorization from Congress.
As the Department of State later remarked, “In the absence of
any law upon the subject, the issuing of passports to Americans
going abroad naturally fell to the Department of State, as one of
its manifestly proper functions.” Hunt,
supra, at 37.
To that end, the Secretary’s authority was “entirely
discretionary.”
Urtetiqui v.
D’Arcy, 9
Pet. 692, 699 (1835). Congress acted in support of that authority
by criminalizing the “violat[ion] [of] any safe-conduct or
passport duly obtained and issued under the authority of the United
States.” An Act for the Punishment of certain Crimes against
the United States, §28, 1Stat. 118.[
3] Congress only purported to authorize the President
to issue such passports in 1856 and, even under that statute, it
provided that passports should be issued “under such rules as
the President shall designate and prescribe for and on behalf of
the United States.” An Act to regulate the Diplomatic and
Consular Systems of the United States, §23, 11Stat. 60. The
President has continued to designate and prescribe the rules for
passports ever since.
2
That the President has the power to regulate
passports under his residual foreign affairs powers does not,
however, end the matter, for Congress has repeatedly legislatedon
the subject of passports. These laws have always been narrow in
scope. For example, Congress enacted laws prohibiting the issuance
of passports to noncitizens,
id., at 61, created an
exception to that rule for “persons liable to military
duty,” Act of Mar. 3, 1863, §23, 12Stat. 754, and then
eliminated that exception, Act of May 30, 1866, ch. 102, 14Stat.
54. It passed laws regulating the fees that the State Department
should impose for issuance of the passports. Act of May 16, 1932,
ch. 187, 47Stat. 157; Act of June 4, 1920, §1, 41Stat. 750;
Act of June 15, 1917, ch. 30, Title IX, §1, 40Stat. 227; Act
of Aug. 18, 1856, §23, 11Stat. 60; Act of Mar. 1, 1855,
§12, 10Stat. 624. It also enacted legislation addressing the
duration for which passports may remain valid. §116, 96Stat.
279; Pub. L. 90–428, 82Stat. 446; Pub. L. 86–267,
73Stat. 552; Act of July 3, 1926, 44Stat. 887. And it passed laws
imposing criminal penalties for false statements made when applying
for passports, along with misuse of passports and counterfeiting or
forgery of them. Act of June 25, 1948, 62Stat. 771; Act of Mar. 28,
1940, §7, 54Stat. 80; 40Stat. 227.[
4]
As with any congressional action, however, such
legislation is constitutionally permissible only insofar as it is
promulgated pursuant to one of Congress’ enumerated powers. I
must therefore address whether Congress had constitutional
authority to enact §214(d)’s regulation of
passports.
a
Zivotofsky and congressional
amici
identify three potential sources of congressional power to enact
the portion of §214(d) dealing with passports. Zivotofsky
first argues that it falls within Congress’ power “to
regulate the issuance and content of United States
passports.” Brief for Petitioner 17. The U. S. Senate,
as
amicus curiae, likewise contends that it can be justified
under Congress’ “plenary authority over
passports,” which it derives from the penumbras of its powers
“ ‘[t]o regulate Commerce with foreign
Nations’ ” and “ ‘[t]o establish
an uniform Rule of Naturalization.’ ” Brief for
United States Senate 3 (quoting U. S. Const., Art. I, §8,
cls. 3, 4). None of these arguments withstands scrutiny.
The Constitution contains no Passport Clause,
nor does it explicitly vest Congress with “plenary authority
over passports.” Because our Government is one of enumerated
powers, “Congress has no power to act unless the Constitution
authorizes it to do so.”
United States v.
Comstock, 560 U. S. 126, 159 (2010) (Thomas, J.,
dissenting). And “[t]he Constitution plainly sets forth the
‘few and defined’ powers that Congress may
exercise.”
Ibid. A “passport power” is not
one of them.
Section 214(d)’s passport directive fares
no better under those powers actually included in Article I. To
start, it does not fall within the power “[t]o regulate
Commerce with foreign Nations.” “At the time the
original Constitution was ratified, ‘commerce’
consisted of selling, buying, and bartering, as well as
transporting for these purposes.”
United States v.
Lopez, 514 U. S. 549, 585 (1995) (Thomas, J.,
concurring). The listing of the place of birth of an
applicant—whether born in Jerusalem or not—does not
involve selling, buying, bartering, or transporting for those
purposes. Cf.
United States v.
Morrison, 529
U. S. 598, 613 (2000) (“[O]ur cases have upheld Commerce
Clause regulation of intrastate activity [under the power to
regulate commerce among the several States] only where that
activity is economic in nature”).
True, a passport is frequently used by persons
who may intend to engage in commerce abroad, but that use is
insufficient to bring §214(d)’s passport directive
within the scope of this power. The specific conduct at issue
here—the listing of the birthplace of a U. S. citizen
born in Jerusalem on a passport by the President—is not a
commercial activity. Any commercial activities subsequently
undertaken by the bearer of a passport are yet further removed from
that regulation.
The power “[t]o establish an uniform Rule
of Naturalization” is similarly unavailing. At the founding,
the word “naturalization” meant “[t]he act of
investing aliens with the privileges of native subjects.” 2
S. Johnson, A Dictionary of the English Language 1293 (4th ed.
1773); see also T. Dyche & W. Pardon, A New General English
Dictionary (1771) (“the making a foreigner or alien, a
denizen or freeman of any kingdom or city, and so becoming, as it
were, both a subject and a native of a king or country, that by
nature he did not belong to”). A passport has never been
issued as part of the naturalization process. It is—and has
always been—a “travel document,” Dept. of State,
7 Foreign Affairs Manual (or FAM) §1311(b) (2013), issued for
the same purpose it has always served: a request from one sovereign
to another for the protection of the bearer. See
supra, at
10–12.
b
For similar reasons, the Necessary and Proper
Clause gives Congress no authority here. That Clause provides,
“The Congress shall have Power . . . [t]o make all
Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any
Department or Officer thereof.” U. S. Const.,
Art. I, §8, cl. 18. As an initial matter, “Congress
lacks authority to legislate [under this provision] if the
objective is anything other than ‘carrying into
Execution’ one or more of the Federal Government’s
enumerated powers.”
Comstock,
supra, at 161
(Thomas, J., dissenting). The “end [must] be
legitimate” under our constitutional structure.
McCulloch v.
Maryland, 4 Wheat. 316, 421 (1819).
But even if the objective of a law is carrying
into execution one of the Federal Government’s enumerated
powers, the law must be both necessary and proper to that
objective. The “Clause is not a warrant to Congress to enact
any law that bears some conceivable connection to the exercise of
an enumerated power.”
Gonzales v.
Raich, 545
U. S. 1, 60 (2005) (Thomas, J., dissenting). Instead,
“there must be a necessary and proper fit between the
‘means’ (the federal law) and the ‘end’
(the enumerated power or powers) it is designed to serve.”
Comstock,
supra, at 160 (Thomas, J., dissenting). The
“means” chosen by Congress “will be deemed
‘necessary’ if they are ‘appropriate’ and
‘plainly adapted’ to the exercise of an enumerated
power, and ‘proper’ if they are not otherwise
‘prohibited’ by the Constitution and not
‘[in]consistent’ with its ‘letter and
spirit.’ ”
Id., at 160–161
(alteration in original).
The argument that §214(d), as applied to
passports, could be an exercise of Congress’ power to carry
into execution its foreign commerce or naturalization powers
falters because this aspect of §214(d) is directed at neither
of the ends served by these powers. Although at a high level of
generality, a passport could be related to foreign commerce and
naturalization, that attenuated relationship is insufficient. The
law in question must be “directly link[ed]” to the
enumerated power.
Id., at 169, n. 8. As applied to
passports, §214(d) fails that test because it does not
“ ‘carr[y] into Execution’ ”
Congress’ foreign commerce or naturalization powers.
Id., at 160. At most, it bears a tertiary relationship to an
activity Congress is permitted to regulate: It directs the
President’s formulation of a document, which, in turn, may be
used to facilitate travel, which, in turn, may facilitate foreign
commerce. And the distinctive history of the passport as a travel
rather than citizenship document makes its connection to
naturalization even more tenuous.
Nor can this aspect of §214(d) be justified
as an exercise of Congress’ power to enact laws to carry into
execution the President’s residual foreign affairs powers.
Simply put, §214(d)’s passport directive is not a
“proper” means of carrying this power into
execution.
To be “proper,” a law must fall
within the peculiar competence of Congress under the Constitution.
Though “proper” was susceptible of several definitions
at the time of the founding, only two are plausible candidates for
use in the Necessary and Proper Clause—(1) “[f]it;
accommodated; adapted; suitable; qualified” and (2)
“[p]eculiar; not belonging to more; not common.” See 2
Johnson,
supra, at 1537. Because the former would render the
word “necessary” superfluous,
McCulloch,
supra, at 413, and we ordinarily attempt to give effect
“to each word of the Constitution,”
Knowlton v.
Moore, 178 U. S. 41, 87 (1900) , the latter is the more
plausible. That is particularly true because the Constitution
elsewhere uses the term “proper” by itself,
Art. I, §9, Art. II, §§2, 3; the term
“necessary” by itself, Art. I, §7; Art. V;
and the term “necessary” as part of the phrase
“necessary and expedient,” Art. II, §3. Thus,
the best interpretation of “proper” is that a law must
fall within the peculiar jurisdiction of Congress.
Our constitutional structure imposes three key
limitations on that jurisdiction: It must conform to (1) the
allocation of authority within the Federal Government, (2) the
allocation of power between the Federal Government and the States,
and (3) the protections for retained individual rights under the
Constitution. See Lawson & Granger, The “Proper”
Scope of Federal Power: A Jurisdictional Interpretation of the
Sweeping Clause, 43 Duke L. J. 267, 291, 297 (1993). In other
words, to be “proper,” a law “must be consistent
with principles of separation of powers, principles of federalism,
and individual rights.”
Id.,at 297
.
Commentators during the ratification debates
treated “proper” as having this meaning. Writing as
Publius, Hamilton posed the question who would “judge
. . . the
necessity and
propriety of the
laws to be passed for executing the powers of the Union” and
responded that “[t]he propriety of a law, in a constitutional
light, must always be determined by the nature of the powers upon
which it is founded.” The Federalist, No. 33, pp.
203–204. For example, a law that “exceeded
[Congress’] jurisdiction” and invaded the authority of
the States would not meet that standard.
Id., at 204.
Similarly, an “impartial citizen” wrote in a Virginia
newspaper that, even if the governmental powers could not “be
executed without the aid of a law, granting commercial monopolies,
inflicting un-usual punishments, creating new crimes, or commanding
any unconstitutional act,” thus making the law necessary to
the execution of a power, “such a law would be manifestly not
proper,” and not “warranted by this clause, without
absolutely departing from the usual acceptation of words.” An
Impartial Citizen V, Petersburg Va. Gazette, Feb. 28, 1788, in 8
Documentary History of the Ratification of the Constitution 428,
431 (J. Kaminski & G. Saladino eds. 1988) (emphasis
deleted).
Early interpretations of the Clause following
ratification largely confirm that view. Lawson & Granger,
supra, at 298–308. During debate on the Bank of the
United States in the First Congress, for example, Representative
Ames declared that the correct construction of the Necessary and
Proper Clause “promotes the good of the society, and the ends
for which the Government was adopted, without impairing the rights
of any man, or the powers of any State.” 2 Annals of Cong.
1906 (1791). During the Second Congress, Representative Niles
railed against a bill that would have authorized federal mail
carriers to transport passengers for hire in order to reduce the
cost of the mails. He said that such a law would not be
“proper” to the power to establish post offices and
post roads because some States had “an exclusive right of
carrying passengers for hire” and an interpretation of the
word “proper” that would allow the bill would render
“as nugatory, all [the States’] deliberations on the
Constitution” and effectively vest Congress with
“general authority to legislate on every subject.” 3
id., at 308–310 (1792) (emphasis deleted). Each of
these comments presumed that the word “proper” imposed
a jurisdictional limit on congressional activity.
This evidence makes sense in light of the
Framers’ efforts to ensure a separation of powers, reinforced
by checks and balances, as “practical and real protectio[n]
for individual liberty in the new Constitution.”
Perez
v.
Mortgage Bankers Assn., 575 U. S. ___, ___ (2015)
(Thomas, J., concurring in judgment) (slip op., at 8). If Congress
could rely on the Necessary and Proper Clause to exercise power
expressly allocated to the other branches or to prevent the
exercise of such power by other branches, it could undermine the
constitutional allocation of powers.
That the evidence thus points to a definition of
“proper” that protects the separation of powers does
not fully explain the way that the “proper” requirement
operates when Congress seeks to facilitate the exercise of a power
allocated to another branch. I can see two potential mechanisms,
either or both of which may accurately reflect the original
understanding of the Clause. First, a law could be
“improper” if it purports to direct another
branch’s exercise of its power. See Calabresi & Prakash,
The President’s Power to Execute the Laws, 104 Yale
L. J. 541, 591 (1994) (“[T]he Clause . . .
does [not] allow Congress to tell constitutionally empowered actors
how they can implement their exclusive powers”). Second, a
law could be “improper” if it takes one of those
actions
and the branch to which the power is allocated
objects to the action. See Prakash & Ramsey 255–256
(“Congress has the general power to legislate in support of
the President’s foreign policy goals. But . . .
[s]ince it is derivative of the President’s power, it must be
exercised in coordination with, and not in opposition to, the
President”).
I need not resolve that question today, as the
application of §214(d) to passports would be improper under
either approach. The President has made a determination that the
“place of birth” on a passport should list the country
of present sovereignty. 7 FAM, §1300, App. D, §1330
(2014). And the President has determined that no country is
presently exercising sovereignty over the area of Jerusalem. Thus,
the President has provided that passports for persons born in
Jerusalem should list “Jerusalem” as the place of birth
in the passport.
Id., §1360(f). Section 214(d) directs
the President to exercise his power to issue and regulate the
content of passports in a particular way, and the President has
objected to that direction. Under either potential mechanism for
evaluating the propriety of a law under the separation-of-powers
limitation, this law would be improper.[
5]
c
In support of his argument that the President
must enforce §214(d), Zivotofsky relies heavily on a similar
statute addressing the place of birth designation for persons born
in Taiwan. See Foreign Relations Authorization Act, Fiscal Years
1994 and 1995, §132, 108Stat. 395. That statute provided,
“For purposes of the registration of birth or certification
of nationality of a United States citizen born in Taiwan, the
Secretary of State shall permit the place of birth to be recorded
as Taiwan.”
Ibid. The President has adopted that
practice.
The President’s decision to adopt that
practice, however, says nothing about the constitutionality of the
Taiwan provision in the first place. The constitutional allocation
of powers “does not depend on the views of individual
Presidents, nor on whether the encroached upon branch approves the
encroachment.”
Free Enterprise Fund v.
Public
Company Accounting Oversight Bd., 561 U. S. 477, 497
(2010) (citation and internal quotation marks omitted).[
6] And the argument from Presidential
acquiescence here is particularly weak, given that the Taiwan
statute is consistent with the President’s longstanding
policy on Taiwan. At the time Congress enacted the statute, the
Foreign Affairs Manual permitted consular officials to list
“the city or area of birth” on a passport
“[w]here the birthplace of the applicant is located in
territory disputed by another country,” 7 FAM
§1383.5–2 (1987), and to list “the city or town,
rather than the country” of an applicant’s birth
“when there are objections to the listing shown on the
birthplace guide,”
id., §1383.6. Because the
President otherwise treats Taiwan as a geographical area within the
People’s Republic of China, listing Taiwan as the place of
birth did not directly conflict with the President’s
prevailing practices. Section 214(d)
does so conflict, as it
requires the President to list citizens born in Jerusalem as born
in “Israel,” even though the Foreign Affairs Manual has
long prohibited that action.
d
Justice Scalia would locate Congress’
power to enact the passport directive of §214(d) in
Congress’ power under the Necessary and Proper Clause to
bring into effect its enumerated power over naturalization.
Post, at 3–4 (dissenting opinion). As an initial
matter, he asserts that “[t]he naturalization power
. . . enables Congress to furnish the people it makes
citizens with papers verifying their citizenship,”
post, at 3, yet offers no support for this interpretation of
a clause that, by its terms, grants Congress only the “Power
. . . To establish an uniform Rule of
Naturalization,” U. S. Const., Art. I, §8, cl.
4. He then concludes that, if Congress can grant such documents,
“it may also require these [documents] to record his
birthplace as ‘Israel’ ” pursuant to its
power under the Necessary and Proper Clause,
post, at 3. But
this theory does not account for the President’s power to act
in this area, nor does it confront difficult questions about the
application of the Necessary and Proper Clause in the case of
conflict among the branches.
Justice Scalia disapproves of my
“assertion of broad, unenumerated ‘residual
powers’ in the President,”
post, at 19, but
offers no response to my interpretation of the words
“executive Power” in the Constitution. Instead, he
claims that I have argued for “Presidential primacy over
passports” and then rejects that position based on two
postratification English statutes, the early practice of nonfederal
actors issuing passports in this country, and the same
congressional statutes that I have already discussed, most of which
were enacted after the Civil War.
Post, at 16–17;
supra, at 13, and n. 4. But I do not argue that the
President possesses primary power over passports. I need not argue
that. I argue only that Congress did not act according to any of
the powers granted to it in the Constitution and, in such
circumstances, the question of primacy does not arise.
In any event, the historical evidence cited in
Justice Scalia’s dissent does not conflict with my analysis
of the President’s power in this area. The two
postratification English statutes implicitly acknowledged that
passports are issued by executive officers in the exercise of
executive power, see 38 Geo. III, ch. 50, §8, in 41 Eng. Stat.
at Large 684; 33 Geo. III, ch. 4, §8, in 39 Eng. Stat. at
Large 12, and the practice of executive officials in the States of
this country confirms that relationship. In addition, neither piece
of historical evidence speaks to the scope of
Congress’ power to regulate passports under our
federal system. Justice Scalia’s final piece of historical
support—the increased congressional regulation of passports
following the Civil War—is perhaps more on point from an
institutional perspective, but still does not resolve the issue.
Those regulations were, as I have already described, narrow in
scope and continued to leave primary regulation of the content of
passports to the President. To draw an inference from these
“late-arising historical practices that are ambiguous at
best”—and that might conflict with the original meaning
of the “executive Power” and the “proper”
requirement in the Necessary and Proper Clause—is a dubious
way to undertake constitutional analysis. See
Noel Canning,
573 U. S., at ___ (Scalia, J., concurring in judgment) (slip
op., at 2).
Even more dubious, however, is the cursory
treatment of the Necessary and Proper Clause in Justice
Scalia’s dissent. He asserts that, in acting pursuant to that
Clause, “Congress . . . may not transcend
boundaries upon legislative authority stated or implied elsewhere
in the Constitution.”
Post, at 4. But he offers no
explanation for what those implied limits might be or how they
would operate. Does he, for example, agree that the word
“proper” requires Congress to act in a manner
“ ‘consistent with principles of separation of
powers, principles of federalism, and individual
rights’ ”?
Supra, at 18 (quoting Lawson
& Grainger, 43 Duke L. J., at 297)
. If so, then why
does he find that requirement satisfied in this case? Is it because
he views the President as having no constitutional authority to act
in this area? Or is it because he views Congress’ directive
to the President as consistent with the separation of powers,
irrespective of the President’s authority? If the latter, is
that because he perceives no separation-of-powers limitations on
Congress when it acts to carry into execution one of
its
enumerated powers, as opposed to the enumerated powers of
another branch? And if that is the case, what textual,
structural, or historical evidence exists for that interpretation?
Justice Scalia’s dissent raises more questions than it
answers.
Justice Scalia’s dissent
does at
least answer how, in his view, the Constitution would resolve a
conflict between the political branches, each acting pursuant to
the powers granted them under the Constitution. He believes that
congressional power should trump in any such conflict.
Post,
at 18. I see nothing in the Constitution that clearly mandates that
solution to a difficult separation-of-powers question, and I need
not opine on it. I find no power under which Congress could
lawfully have enacted the passport directive of §214(d), apart
from its power under the Necessary and Proper Clause to carry into
effect the President’s powers. And I have offered textual and
historical support for my conclusion that the Clause does not
include the power to direct the President’s exercise of his
passport power.
Finally, Justice Scalia faults me for failing to
consider a number of potential sources of congressional power for
§214(d) not argued by any of the parties, ranging from the
Fourteenth Amendment; to the Migration or Importation Clause, Art.
I, §9, cl. 1; to the Territories Clause, Art. IV, §3, cl.
2.
Post, at 15. But no one—not even Justice
Scalia—has seriously contended that those provisions would
afford a basis for the passport provision of §214(d).
In the end, Justice Scalia characterizes my
interpretation of the executive power, the naturalization power,
and the Necessary and Proper Clause as producing “a
presidency more reminiscent of George III than George
Washington.”
Post, at 19. But he offers no competing
interpretation of either the Article II Vesting Clause or the
Necessary and Proper Clause. And his decision about the
Constitution’s resolution of conflict among the branches
could itself be criticized as creating a supreme legislative body
more reminiscent of the Parliament in England than the Congress in
America.
* * *
Because the President has residual foreign
affairs authority to regulate passports and because there appears
to be no congressional power that justifies §214(d)’s
application to passports, Zivotofsky’s challenge to the
Executive’s designation of his place of birth on his passport
must fail.
B
Although the consular report of birth abroad
shares some features with a passport, it is historically associated
with naturalization, not foreign affairs. In order to establish a
“uniform Rule of Naturalization,” Congress must be able
to identify the categories of persons who are eligible for
naturalization, along with the rules for that process. Congress
thus has always regulated the “acquisition of citizenship by
being born abroad of American parents . . . in the exercise of the
power conferred by the Constitution to establish a uniform rule of
naturalization.”
United States v.
Wong Kim Ark,
169 U. S. 649, 688 (1898) ; see also
Miller v.
Albright, 523 U. S. 420, 456 (1998) (Scalia, J.,
concurring in judgment) (recognizing that “Congress has the
power to set the requirements for acquisition of citizenship by
persons not born within the territory of the United States”).
It has determined that children born abroad to U. S. parents,
subject to some exceptions, are natural-born citizens who do not
need to go through the naturalization process. 8 U. S. C.
§§ 1401(c), (d), (g).
The consular report of birth abroad is well
suited to carrying into execution the power conferred on Congress
in the Naturalization Clause. The report developed in response to
Congress’ requirement that children born abroad to U. S.
citizens register with the consulate or lose their citizenship. And
it continues to certify the acquisition of U. S. citizenship
at birth by a person born abroad to a U. S. citizen. See 22
U. S. C. §2705(2).
Although such persons have possessed a statutory
right to citizenship at birth for much of this country’s
history,[
7] the process by
which that citizenship is evidenced has varied over time. Under the
1870 consular regulations, for instance, children born abroad to
U. S. citizens were issued no certificates. If they applied
for a U. S. passport, then they were issued one
“qualified by the obligations and duties” that attached
to those citizens by virtue of their residence in a foreign nation.
Regulations Prescribed For The Use Of The Consular Service of the
UnitedStates App. No. IV, p. 288 (1870); see also
id.,
§109, at38–39. Congress acted in 1907 to require
children residing abroad to register with their local consulate at
the age of 18. Act of Mar. 2, 1907, §6, 34Stat. 1229. Because
of the importance of this registration requirement, consular
officials began to issue reports to citizens confirming their
registration. See generally National Archives, General Records of
the Dept. of State, Record Group 59, Passport Office, Decimal File,
1910–1949.
In 1919, the Department of State acted to
standardize the consular registration of children born abroad.
Report of Birth of Children to American Citizens Residing Abroad,
General Instruction No. 652. It urged consulates to impress upon
U. S. citizens abroad the need to record the birth of their
children within two years.
Id., at 2. To encourage that
effort, the Department permitted consular officials to issue
reports attesting that the parents of U. S. citizens born
abroad had presented sufficient evidence of citizenship for their
children.
Ibid.
The 1960’s brought additional regulations
of consular reports of birth abroad, 31 Fed. Reg. 13538 (1966),
which continue in a substantially similar form to this day. See 22
CFR §§50.5, 50.7 (2014). As currently issued, the
consular report of birth abroad includes the applicant’s
name, sex, place of birth, date of birth, and parents. It has had
the “same force and effect as proof of United States
citizenship as [a] certificat[e] of naturalization” since
1982. §117, 96Stat. 279.
Thus, although registration is no longer
required to maintain birthright citizenship, the consular report of
birth abroad remains the primary means by which children born
abroad may obtain official acknowledgement of their citizenship.
See 22 CFR §51.43. Once acknowledged as U. S. citizens,
they need not pursue the naturalization process to obtain the
rights and privileges of citizenship in this country. Regulation of
the report is thus “appropriate” and “plainly
adapted” to the exercise of the naturalization power. See
Comstock, 560 U. S., at 161 (Thomas, J.,
dissenting).
By contrast, regulation of the report bears no
relationship to the President’s residual foreign affairs
power. It has no historical pedigree uniquely associated with the
President, contains no communication directed at a foreign power,
and is primarily used for domestic purposes. To the extent that a
citizen born abroad seeks a document to use as evidence of his
citizenship abroad, he must obtain a passport. See generally 7 FAM
§1311.
Because regulation of the consular report of
birth abroad is justified as an exercise of Congress’ powers
under the Naturalization and Necessary and Proper Clauses and does
not fall within the President’s foreign affairs powers,
§214(d)’s treatment of that document is
constitutional.[
8]
III
The majority does not perform this analysis,
but instead relies on a variation of the recognition power. That
power is among the foreign affairs powers vested in the President
by Article II’s Vesting Clause, as is confirmed by Article
II’s express assignment to the President of the duty of
receiving foreign Ambassadors, Art. II, §3. But I cannot
join the majority’s analysis because no act of recognition is
implicated here.[
9]
Under international law, “recognition of a
state signifies acceptance of its position within the international
community and the possession by it of the full range of rights and
obligations which are the normal attributes of statehood.” 1
Oppenheim’s International Law §47, 158 (R. Jennings
& A. Watts eds., 9th ed. 1992) (footnote omitted)
(Oppenheim).[
10] It can be
accomplished expressly or implicitly, but the key is to discern a
clear intention on the part of one state to recognize another.
Id., §50, at 169. Important consequences are understood
to flow from one state’s recognition of another: The new
state, for instance, acquires the capacity to engage in diplomatic
relations, including the negotiation of treaties, with the
recognizing state.
Id., §47, at 158. The new state is
also entitled to sue in, invoke sovereign immunity from, and demand
acceptance of official acts in the courts of the recognizing state.
Ibid.; see also I. Brownlie, Principles of Public
International Law 95–96 (7th ed. 2008).
Changes in territory generally do not affect the
status of a state as an international person. Oppenheim §57,
at 204–205. France, for example, “has over the
centuries retained its identity although it acquired, lost and
regained parts of its territory, changed its dynasty, was a
kingdom, a republic, an empire, again a kingdom, again a republic,
again an empire, and is now once more a republic.”
Ibid. “Even such loss of territory as occasions the
reduction of a major power to a lesser status does not affect the
state as an international person.”
Id., §57, at
205. Changes that
would affect the status as an
international person include the union of two separate
international persons or a partial loss of independence.
Id., §58, at 206.
Assuming for the sake of argument that listing a
non-recognized foreign sovereign as a citizen’s place of
birth on a U. S. passport could have the effect of recognizing
that sovereign under international law, no such recognition would
occur under the circumstances presented here. The United States has
recognized Israel as a foreign sovereign since May 14, 1948.
Statement by the President Announcing the Recognition of the State
of Israel, Public Papers of the Presidents, Harry S. Truman, p. 258
(1964). That the United States has subsequently declined to
acknowledge Israel’s sovereignty over Jerusalem has not
changed its recognition of Israel as a sovereign state. And even if
the United States were to acknowledge Israel’s sovereignty
over Jerusalem, that action would not change its recognition of
Israel as a sovereign state. That is because the United States has
already afforded Israel the rights and responsibilities attendant
to its status as a sovereign State. Taking a different position on
the Jerusalem question will have no effect on that
recognition.[
11]
Perhaps recognizing that a formal recognition is
not implicated here, the majority reasons that, if the
Executive’s exclusive recognition power “is to mean
anything, it must mean that the President not only makes the
initial, formal recognition determination but also that he may
maintain that determination in his and his agent’s
statements.”
Ante, at 26. By “alter[ing] the
President’s statements on matters of recognition or forc[ing]
him to contradict them,” the majority reasons,
“Congress in effect would exercise the recognition
power.”
Ante, at 27. This argument stretches the
recognition power beyond all recognition. Listing a Jerusalem-born
citizen’s place of birth as “Israel” cannot
amount to recognition because the United States already recognizes
Israel as an international person. Rather than adopt a novel
definition of the recognition power, the majority should have
looked to other foreign affairs powers in the Constitution to
resolve this dispute.
* * *
Adhering to the Constitution’s
allocation of powers leads me to reach a different conclusion in
this case from my colleagues: Section 214(d) can be
constitutionally applied to consular reports of birth abroad, but
not passports. I therefore respectfully concur in the judgment in
part and dissent in part.