Zivotofsky v. Kerry,
576 U.S. ___ (2015)

Annotate this Case
  • Syllabus  | 
  • Opinion (Anthony M. Kennedy)  | 
  • Concurrence (Stephen G. Breyer)  | 
  • Dissent (Antonin Scalia)  | 
  • Dissent (John G. Roberts, Jr.)  | 
  • Concurrence & Dissent In Part (Clarence Thomas)



No. 13–628



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.



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.


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]


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.


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]



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.


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.


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.


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]


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.


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.


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]


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.


1  This discussion of the allocation of federal foreign affairs powers should not be understood to address the allocation of foreign affairs powers between the Federal Government and the States. The extent to which the States retained foreign affairs powers following ratification is not before us today.
2  The majority asserts that Zivotofsky “waived any argument that his consular report of birth abroad should be treated differently than his passport” in the court below and in this Court because he “fail[ed] to differentiate between the two documents.” Ante, at 5. But at every stage of the proceedings, Zivotofsky has pressed his claim that he is entitled to have his place of birth listed as “Israel” on both his passport and his consular report of birth abroad, and the consular report issue is fairly included in the question presented. Parties cannot waive the correct interpretation of the law simply by failing to invoke it. See, e.g., EEOC v. FLRA, 476 U. S. 19, 23 (1986) (per curiam). That the parties have argued the case as if the same analysis should apply to both documents does not relieve this Court of its responsibility to interpret the law correctly.
3  Until 1978, passports were not generally required to enter or exit the country except during wartime. §707, 92Stat. 993.
4  Justice Scalia, in his dissent, faults me for failing to identify the enumerated power under which these laws were permissible, but the question presented in this case is whether §214(d) is a constitutional exercise of Congress’ power, and that is the question I address.
5  Because §214(d) is not proper, I need not resolve whether such a law could be understood to “carry into execution” the President’s power.
6  This principle is not necessarily inconsistent with the second mechanism for evaluating congressional action under the Necessary and Proper Clause discussed above. Although that mechanism would tie the propriety of congressional action to the objection (or nonobjection) of another branch, the point of that tying feature is to determine whether, in fact, Congress has encroached upon another branch, not whether such encroachment is acceptable.
7  The First Congress passed a law recognizing citizenship at birth for children born abroad to U. S. citizens. Act of Mar. 26, 1790, ch. 3, §1, 1Stat. 104. An 1802 amendment to the provision rendered the availability of this citizenship uncertain. Binney, The Alienigenae of the United States, 2 Am. L. Reg. 193, 193 (1854). But Congress acted to clarify the availability of such citizenship in 1855, Act of Feb. 10, 1855, ch. 71, 10Stat. 604, and it continues to exist to this day, see Immigration and Nationality Act, §301(a), 66Stat. 235.
8  As the issue is not presented, I need not decide how a direct conflict between action pursuant to an enumerated power of Congress and action pursuant to the residual foreign affairs power of the President should be resolved.
9  I assume, as the majority does, that the recognition power conferred on the President by the Constitution is the power to accomplish the act of recognition as that act is defined under international law. It is possible, of course, that the Framers had a fixed understanding of the act of recognition that is at odds with the definition of that act under international law. But the majority does not make that argument, nor does the majority even specifically address how consular reports of birth abroad are related to recognition. Lacking any evidence that the modern practice of recognition deviates in any relevant way from the historical practice, or that the original understanding of the recognition power was something other than the power to take part in that practice, I proceed on the same assumption as the majority.
10  Scholars have long debated the extent to which official recognition by the sovereign states that make up the international community is necessary to bring a new “state” into the international community and thereby subject it to international law. Oppenheim §39, at 128–129. Resolving this debate is not necessary to resolve the issue at hand, so I describe the modern view of recognition without endorsing it.
11  The analysis might look different if §214(d) required the President to list as a “place of birth” a country that the United States has never officially recognized. That is not the case here.
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