# Zivotofsky v. Kerry/Dissent Scalia

​Justice Scalia, with whom The Chief Justice and Justice Alito join, dissenting.
Before this country declared independence, the law of England entrusted the King with the exclusive care of his kingdom's foreign affairs. The royal prerogative included the “sole power of sending ambassadors to foreign states, and receiving them at home,” the sole authority to “make treaties, leagues, and alliances with foreign states and princes,” “the sole prerogative of making war and peace,” and the “sole power of raising and regulating feets and armies.” 1 W. Blackstone, Commentaries *253, *257, *262. The People of the United States had other ideas when they organized our Government. They considered a sound structure of balanced powers essential to the preservation of just government, and international relations formed no exception to that principle.
The People therefore adopted a Constitution that divides responsibility for the Nation's foreign concerns between the legislative and executive departments. The Constitution gave the President the “executive Power,” authority to send and responsibility to receive ambassadors, power to make treaties, and command of the Army and Navy—though they qualified some of these powers by requiring consent of the Senate. Art. II, §§ 1–3. At the same time, they gave Congress powers over war, foreign commerce, naturalization, and more. Art. I, § 8. “Fully eleven of the powers that Ar- ​ticle I, § 8 grants Congress deal in some way with foreign affairs.” 1 L. Tribe, American Constitutional Law § 5–18, p. 965 (3d ed. 2000).
This case arises out of a dispute between the Executive and Legislative Branches about whether the United States should treat Jerusalem as a part of Israel. The Constitution contemplates that the political branches will make policy about the territorial claims of foreign nations the same way they make policy about other international matters: The President will exercise his powers on the basis of his views, Congress its powers on the basis of its views. That is just what has happened here.
I
The political branches of our Government agree on the real-world fact that Israel controls the city of Jerusalem. See Jerusalem Embassy Act of 1995, 109 Stat. 398; Brief for Respondent 3. They disagree, however, about how official documents should record the birthplace of an American citizen born in Jerusalem. The Executive does not accept any state's claim to sovereignty over Jerusalem, and it maintains that the birthplace designation “Israel” would clash with this stance of neutrality. But the National Legislature has enacted a statute that provides: “For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel.” Foreign Relations Authorization Act, Fiscal Year 2003, § 214(d), 116 Stat. 1366. Menachem Zivotofsky's parents seek enforcement of this statutory right in the issuance of their son's passport and consular report of birth abroad. They regard their son's birthplace as a part of Israel and insist as “a matter of conscience” that his Israeli nativity “not be erased” from his identity documents. App. 26.
​Before turning to Presidential power under Article II, I think it well to establish the statute's basis in congressional power under Article I. Congress's power to “establish an uniform Rule of Naturalization,” Art. I, § 8, cl. 4, enables it to grant American citizenship to someone born abroad. United States v. Wong Kim Ark, 169 U. S. 649, 702–703 (1898). The naturalization power also enables Congress to furnish the people it makes citizens with papers verifying their citizenship—say a consular report of birth abroad (which certifies citizenship of an American born outside the United States) or a passport (which certifies citizenship for purposes of international travel). As the Necessary and Proper Clause confrms, every congressional power “carries with it all those incidental powers which are necessary to its complete and effectual execution.” Cohens v. Virginia, 6 Wheat. 264, 429 (1821). Even on a miserly understanding of Congress's incidental authority, Congress may make grants of citizenship “effectual” by providing for the issuance of certificates authenticating them.
One would think that if Congress may grant Zivotofsky a passport and a birth report, it may also require these papers to record his birthplace as “Israel.” The birthplace specifcation promotes the document's citizenship-authenticating function by identifying the bearer, distinguishing people with similar names but different birthplaces from each other, helping authorities uncover identity fraud, and facilitating retrieval of the Government's citizenship records. See App. 70. To be sure, recording Zivotofsky's birthplace as “Jerusalem” rather than “Israel” would fulfill these objectives, but when faced with alternative ways to carry its powers into execution, Congress has the “discretion” to choose the one it deems “most beneficial to the people.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). It thus has the right to decide that recording birthplaces as “Israel” makes for better foreign policy. Or that regardless of international politics, ​a passport or birth report should respect its bearer's conscientious belief that Jerusalem belongs to Israel.
No doubt congressional discretion in executing legislative powers has its limits; Congress's chosen approach must be not only “necessary” to carrying its powers into execution, but also “proper.” Congress thus may not transcend boundaries upon legislative authority stated or implied elsewhere in the Constitution. But as we shall see, § 214(d) does not transgress any such restriction.
II
The Court frames this case as a debate about recognition. Recognition is a sovereign's official acceptance of a status under international law. A sovereign might recognize a foreign entity as a state, a regime as the other state's government, a place as part of the other state's territory, rebel forces in the other state as a belligerent power, and so on. 2 M. Whiteman, Digest of International Law § 1 (1963) (hereinafter Whiteman). President Truman recognized Israel as a state in 1948, but Presidents have consistently declined to recognize Jerusalem as a part of Israel's (or any other state's) sovereign territory.
The Court holds that the Constitution makes the President alone responsible for recognition and that § 214(d) invades this exclusive power. I agree that the Constitution empowers the President to extend recognition on behalf of the United States, but I fnd it a much harder question whether it makes that power exclusive. The Court tells us that “the weight of historical evidence” supports exclusive executive authority over “the formal determination of recognition.” Ante, at 23. But even with its attention confned to formal recognition, the Court is forced to admit that “history is not all on one side.” Ibid. To take a stark example, Congress legislated in 1934 to grant independence to the Philippines, which were then an American colony. 48 Stat. 456. In the course of doing so, Congress directed the President to “rec​ognize the independence of the Philippine Islands as a separate and self governing nation” and to “acknowledge the authority and control over the same of the government instituted by the people thereof.” § 10, id., at 463. Constitutional? And if Congress may control recognition when exercising its power “to dispose of . . . the Territory or other Property belonging to the United States,” Art. IV, § 3, cl. 2, why not when exercising other enumerated powers? Neither text nor history nor precedent yields a clear answer to these questions. Fortunately, I have no need to confront these matters today—nor does the Court—because § 214(d) plainly does not concern recognition.
Recognition is more than an announcement of a policy. Like the ratifcation of an international agreement or the termination of a treaty, it is a formal legal act with effects under international law. It signifes acceptance of an international status, and it makes a commitment to continued acceptance of that status and respect for any attendant rights. See, e. g., Convention on the Rights and Duties of States, Art. 6, Dec. 26, 1933, 49 Stat. 3100, T. S. No. 881. “Its legal effect is to create an estoppel. By granting recognition, [states] debar themselves from challenging in future whatever they have previously acknowledged.” 1 G. Schwarzenberger, International Law 127 (3d ed. 1957). In order to extend recognition, a state must perform an act that unequivocally manifests that intention. Whiteman § 3. That act can consist of an express conferral of recognition, or one of a handful of acts that by international custom imply recognition—chiefly, entering into a bilateral treaty, and sending or receiving an ambassador. Ibid.
To know all this is to realize at once that § 214(d) has nothing to do with recognition. Section 214(d) does not require the Secretary to make a formal declaration about Israel's sovereignty over Jerusalem. And nobody suggests that international custom infers acceptance of sovereignty from the birthplace designation on a passport or birth report, as it ​does from bilateral treaties or exchanges of ambassadors. Recognition would preclude the United States (as a matter of international law) from later contesting Israeli sovereignty over Jerusalem. But making a notation in a passport or birth report does not encumber the Republic with any international obligations. It leaves the Nation free (so far as international law is concerned) to change its mind in the future. That would be true even if the statute required all passports to list “Israel.” But in fact it requires only those passports to list “Israel” for which the citizen (or his guardian) requests “Israel”; all the rest, under the Secretary's policy, list “Jerusalem.” It is utterly impossible for this deference to private requests to constitute an act that unequivocally manifests an intention to grant recognition.
Section 214(d) performs a more prosaic function than extending recognition. Just as foreign countries care about what our Government has to say about their borders, so too American citizens often care about what our Government has to say about their identities. Cf. Bowen v. Roy, 476 U. S. 693 (1986). The State Department does not grant or deny recognition in order to accommodate these individuals, but it does make exceptions to its rules about how it records birthplaces. Although normal protocol requires specifying the bearer's country of birth in his passport, Dept. of State, 7 Foreign Affairs Manual (FAM) § 1300, App. D, § 1330(a) (2014), the State Department will, if the bearer protests, specify the city of birth instead so that an Irish nationalist may have his birthplace recorded as “Belfast” rather than “United Kingdom,” id., § 1380(a). And although normal protocol requires specifying the country with present sovereignty over the bearer's place of birth, id., § 1330(b), a special exception allows a bearer born before 1948 in what was then Palestine to have his birthplace listed as “Palestine,” id., § 1360(g). Section 214(d) requires the State Department to make a further accommodation. Even though the Department normally refuses to specify a country that lacks recog​nized sovereignty over the bearer's birthplace, it must suspend that policy upon the request of an American citizen born in Jerusalem. Granting a request to specify “Israel” rather than “Jerusalem” does not recognize Israel's sovereignty over Jerusalem, just as granting a request to specify “Belfast” rather than “United Kingdom” does not derecognize the United Kingdom's sovereignty over Northern Ireland.
The best indication that § 214(d) does not concern recognition comes from the State Department's policies concerning Taiwan. According to the Solicitor General, the United States “acknowledges the Chinese position” that Taiwan is a part of China, but “does not take a position” of its own on that issue. Brief for Respondent 51–52. Even so, the State Department has for a long time recorded the birthplace of a citizen born in Taiwan as “China.” It indeed insisted on doing so until Congress passed a law (on which § 214(d) was modeled) giving citizens the option to have their birthplaces recorded as “Taiwan.” See § 132, 108 Stat. 395, as amended by § 1(r), 108 Stat. 4302. The Solicitor General explains that the designation “China” “involves a geographic description, not an assertion that Taiwan is . . . part of sovereign China.” Brief for Respondent 51–52. Quite so. Section 214(d) likewise calls for nothing beyond a “geographic description”; it does not require the Executive even to assert, never mind formally recognize, that Jerusalem is a part of sovereign Israel. Since birthplace specifications in citizenship documents are matters within Congress's control, Congress may treat Jerusalem as a part of Israel when regulating the recording of birthplaces, even if the President does not do so when extending recognition. Section 214(d), by the way, expressly directs the Secretary to “record the place of birth as Israel” “[f]or purposes of the registration of birth, certification of nationality, or issuance of a passport.” (Emphasis added.) And the law bears the caption, “Record of Place of Birth as Israel for Passport Purposes.” (Emphasis added.) ​Finding recognition in this provision is rather like finding admission to the Union in a provision that treats American Samoa as a State for purposes of a federal highway safety program, 23 U. S. C. § 401.
III
The Court complains that § 214(d) requires the Secretary of State to issue official documents implying that Jerusalem is a part of Israel; that it appears in a section of the statute bearing the title “United States Policy with Respect to Jerusalem as the Capital of Israel”; and that foreign “observers interpreted [it] as altering United States policy regarding Jerusalem.” Ante, at 31. But these features do not show that § 214(d) recognizes Israel's sovereignty over Jerusalem. They show only that the law displays symbolic support for Israel's territorial claim. That symbolism may have tremendous significance as a matter of international diplomacy, but it makes no difference as a matter of constitutional law.
Even if the Constitution gives the President sole power to extend recognition, it does not give him sole power to make all decisions relating to foreign disputes over sovereignty. To the contrary, a fair reading of Article I allows Congress to decide for itself how its laws should handle these controversies. Read naturally, power to “regulate Commerce with foreign Nations,” § 8, cl. 3, includes power to regulate imports from Gibraltar as British goods or as Spanish goods. Read naturally, power to “regulate the Value . . . of foreign Coin,” § 8, cl. 5, includes power to honor (or not) currency issued by Taiwan. And so on for the other enumerated powers. These are not airy hypotheticals. A trade statute from 1800, for example, provided that “the whole of the island of Hispaniola”—whose status was then in controversy—“shall for purposes of [the] act be considered as a dependency of the French Republic.” § 7, 2 Stat. 10. In 1938, Congress allowed admission of the Vatican City's public records in federal courts, decades before the United States extended formal recognition. Ch. 682, 52 Stat. 1163; Whiteman § 68. ​The Taiwan Relations Act of 1979 grants Taiwan capacity to sue and be sued, even though the United States does not recognize it as a state. 22 U. S. C. § 3303(b)(7). Section 214(d) continues in the same tradition.
The Constitution likewise does not give the President exclusive power to determine which claims to statehood and territory “are legitimate in the eyes of the United States,” ante, at 14. Congress may express its own views about these matters by declaring war, restricting trade, denying foreign aid, and much else besides. To take just one example, in 1991, Congress responded to Iraq's invasion of Kuwait by enacting a resolution authorizing use of military force. 105 Stat. 3. No doubt the resolution reflected Congress's views about the legitimacy of Iraq's territorial claim. The preamble referred to Iraq's “illegal occupation” and stated that “the international community has demanded . . . that Kuwait's independence and legitimate government be restored.” Ibid. These statements are far more categorical than the caption “United States Policy with Respect to Jerusalem as the Capital of Israel.” Does it follow that the authorization of the use of military force invaded the President's exclusive powers? Or that it would have done so had the President recognized Iraqi sovereignty over Kuwait?
History does not even support an exclusive Presidential power to make what the Court calls “formal statements” about “the legitimacy of a state or government and its territorial bounds,” ante, at 32. For a long time, the Houses of Congress have made formal statements announcing their own positions on these issues, again without provoking constitutional objections. A recent resolution expressed the House of Representatives' “strong support for the legitimate, democratically-elected Government of Lebanon” and condemned an “illegitimate” and “unjustifable” insurrection by “the terrorist group Hizballah.” H. Res. 1194, 110th Cong, 2d Sess., 1, 4 (2008). An earlier enactment declared “the sense of the Congress that . . . Tibet . . . is an occupied ​country under the established principles of international law” and that “Tibet's true representatives are the Dalai Lama and the Tibetan Government in exile.” § 355, 105 Stat. 713 (1991). After Texas won independence from Mexico, the Senate resolved that “the State of Texas having established and maintained an independent Government, . . . it is expedient and proper . . . that the independent political existence of the said State be acknowledged by the Government of the United States.” Cong. Globe, 24th Cong., 2d Sess., 83 (1837); see id., at 270.
In the final analysis, the Constitution may well deny Congress power to recognize—the power to make an international commitment accepting a foreign entity as a state, a regime as its government, a place as a part of its territory, and so on. But whatever else § 214(d) may do, it plainly does not make (or require the President to make) a commitment accepting Israel's sovereignty over Jerusalem.
IV
The Court does not try to argue that § 214(d) extends recognition; nor does it try to argue that the President holds the exclusive power to make all nonrecognition decisions relating to the status of Jerusalem. As just shown, these arguments would be impossible to make with a straight face.
The Court instead announces a rule that is blatantly gerrymandered to the facts of this case. It concludes that, in addition to the exclusive power to make the “formal recognition determination,” the President holds an ancillary exclusive power “to control . . . formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds.” Ante, at 32. It follows, the Court explains, that Congress may not “requir[e] the President to contradict an earlier recognition determination in an official document issued by the Executive Branch.” Ibid. So requiring imports from Jerusalem to be taxed like goods from Israel is fine, but requiring Customs to issue an official invoice to that effect is not? Nonsense.
​Recognition is a type of legal act, not a type of statement. It is a leap worthy of the Mad Hatter to go from exclusive authority over making legal commitments about sovereignty to exclusive authority over making statements or issuing documents about national borders. The Court may as well jump from power over issuing declaratory judgments to a monopoly on writing law-review articles.
No consistent or coherent theory supports the Court's decision. At times, the Court seems concerned with the possibility of congressional interference with the President's ability to extend or withhold legal recognition. The Court concedes, as it must, that the notation required by § 214(d) “would not itself constitute a formal act of recognition.” Ante, at 30. It still frets, however, that Congress could try to regulate the President's “statements” in a way that “override[s] the President's recognition determination.” Ante, at 29. But “[t]he circumstance, that . . . [a] power may be abused, is no answer. All powers may be abused.” 2 J. Story, Commentaries on the Constitution of the United States § 921, p. 386 (1833). What matters is whether this law interferes with the President's ability to withhold recognition. It would be comical to claim that it does. The Court identifies no reason to believe that the United States—or indeed any other country—uses the place-of-birth field in passports and birth reports as a forum for performing the act of recognition. That is why nobody thinks the United States withdraws recognition from Canada when it accommodates a Quebec nationalist's request to have his birthplace recorded as “Montreal.”
To the extent doubts linger about whether the United States recognizes Israel's sovereignty over Jerusalem, § 214(d) leaves the President free to dispel them by issuing a disclaimer of intent to recognize. A disclaimer always suffices to prevent an act from effecting recognition. Restatement (Second) of Foreign Relations Law of the United States § 104(1) (1962). Recall that an earlier law grants citizens born in Taiwan the right to have their birthplaces recorded ​as “Taiwan.” The State Department has complied with the law, but states in its Foreign Affairs Manual: “The United States does not officially recognize Taiwan as a `state' or `country,' although passport issuing officers may enter `Taiwan' as a place of birth.” 7 FAM § 1300, App. D, § 1340(d)(6). Nothing stops a similar disclaimer here.
At other times, the Court seems concerned with Congress's failure to give effect to a recognition decision that the President has already made. The Court protests, for instance, that § 214(d) “directly contradicts” the President's refusal to recognize Israel's sovereignty over Jerusalem. Ante, at 30. But even if the Constitution empowers the President alone to extend recognition, it nowhere obliges Congress to align its laws with the President's recognition decisions. Because the President and Congress are “perfectly co-ordinate by the terms of their common commission,” The Federalist No. 49, p. 314 (C. Rossiter ed. 1961) (Madison), the President's use of the recognition power does not constrain Congress's use of its legislative powers.
Congress has legislated without regard to recognition for a long time and in a range of settings. For example, responding in 1817 and 1818 to revolutions in Latin America, Congress amended federal neutrality laws—which originally prohibited private military action for or against recognized states—to prohibit private hostilities against unrecognized states too. Ch. 58, 3 Stat. 370; ch. 88, 3 Stat. 447; see The Three Friends, 166 U. S. 1, 52–59 (1897). Legislation from 90 years ago provided for the revision of national immigration quotas upon one country's surrender of territory to another, even if “the transfer . . . has not been recognized by the United States.” § 12(c), 43 Stat. 161 (1924). Federal law today prohibits murdering a foreign government's officials, 18 U. S. C. § 1116, counterfeiting a foreign government's bonds, § 478, and using American vessels to smuggle goods in violation of a foreign government's laws, § 546—all “irrespective of recognition by the United States,” §§ 11, 1116. ​Just as Congress may legislate independently of recognition in all of those areas, so too may it legislate independently of recognition when regulating the recording of birthplaces.
The Court elsewhere objects that § 214(d) interferes with the autonomy and unity of the Executive Branch, setting the branch against itself. The Court suggests, for instance, that the law prevents the President from maintaining his neutrality about Jerusalem in “his and his agent's statements.” Ante, at 29. That is of no constitutional significance. As just shown, Congress has power to legislate without regard to recognition, and where Congress has the power to legislate, the President has a duty to “take Care” that its legislation “be faithfully executed,” Art. II, § 3. It is likewise “the duty of the secretary of state to conform to the law”; where Congress imposes a responsibility on him, “he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.” Marbury v. Madison, 1 Cranch 137, 158, 166 (1803). The Executive's involvement in carrying out this law does not affect its constitutionality; the Executive carries out every law.
The Court's error could be made more apparent by applying its reasoning to the President's power “to make Treaties,” Art. II, § 2, cl. 2. There is no question that Congress may, if it wishes, pass laws that openly flout treaties made by the President. Head Money Cases, 112 U. S. 580, 597 (1884). Would anyone have dreamt that the President may refuse to carry out such laws—or, to bring the point closer to home, refuse to execute federal courts' judgments under such laws—so that the Executive may “speak with one voice” about the country's international obligations? To ask is to answer. Today's holding puts the implied power to recognize territorial claims (which the Court infers from the power to recognize states, which it infers from the responsibility to receive ambassadors) on a higher footing than the express power to make treaties. And this, even though the ​Federalist describes the making of treaties as a “delicate and important prerogative,” but the reception of ambassadors as “more a matter of dignity than of authority,” “a circumstance which will be without consequence in the administration of the government.” The Federalist No. 69, p. 420 (Hamilton).
In the end, the Court's decision does not rest on text or history or precedent. It instead comes down to “functional considerations”—principally the Court's perception that the Nation “must speak with one voice” about the status of Jerusalem. Ante, at 14 (ellipsis and internal quotation marks omitted). The vices of this mode of analysis go beyond mere lack of footing in the Constitution. Functionalism of the sort the Court practices today will systematically favor the unitary President over the plural Congress in disputes involving foreign affairs. It is possible that this approach will make for more effective foreign policy, perhaps as effective as that of a monarchy. It is certain that, in the long run, it will erode the structure of separated powers that the People established for the protection of their liberty.
V
Justice Thomas's concurrence deems § 214(d) constitutional to the extent it regulates birth reports, but unconstitutional to the extent it regulates passports. Ante, at 41 (opinion concurring in judgment in part and dissenting in part). The concurrence finds no congressional power that would extend to the issuance or contents of passports. Including the power to regulate foreign commerce even though passports facilitate the transportation of passengers, “a part of our commerce with foreign nations,” Henderson v. Mayor of New York, 92 U. S. 259, 270 (1876). Including the power over naturalization—even though passports issued to citizens, like birth reports, “have the same force and effect as proof of United States citizenship as certificates of naturalization,” 22 U. S. C. § 2705. Including the power to enforce the Fourteenth Amendment's guarantee that “[a]ll per​sons born or naturalized in the United States . . . are citizens of the United States”—even though a passport provides evidence of citizenship and so helps enforce this guarantee abroad. Including the power to exclude persons from the territory of the United States, see Art. I, § 9, cl. 1 even though passports are the principal means of identifying citizens entitled to entry. Including the powers under which Congress has restricted the ability of various people to leave the country (fugitives from justice, for example, see 18 U. S. C. § 1073)—even though passports are the principal means of controlling exit. Including the power to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” Art. IV, § 3, cl. 2—even though “[a] passport remains at all times the property of the United States,” 7 FAM § 1317 (2013). The concurrence's stingy interpretation of the enumerated powers forgets that the Constitution does not “partake of the prolixity of a legal code,” that “only its great outlines [are] marked, its important objects designated, and the minor ingredients which compose those objects [left to] be deduced from the nature of the objects themselves.” McCulloch, 4 Wheat., at 407. It forgets, in other words, “that it is a constitution we are expounding.” Ibid.
Defending Presidential primacy over passports, the concurrence says that the royal prerogative in England included the power to issue and control travel documents akin to the modern passport. Ante, at 42. Perhaps so, but that power was assuredly not exclusive. The Aliens Act 1793, for example, enacted almost contemporaneously with our Constitution, required an alien traveling within England to obtain “a passport from [a] mayor or . . . [a] justice of [the] peace,” “in which passport shall be expressed the name and rank, occupation or description, of such alien.” 33 Geo. III, ch. 4, § 8, in 39 Eng. Stat. at Large 12. The Aliens Act 1798 prohibited aliens from leaving the country without “a passport . . . first obtained from one of his Majesty's principal ​secretaries of state,” and instructed customs officers to mark, sign, and date passports before allowing their bearers to depart. 38 Geo. III, ch. 50, § 8, in 41 Eng. Stat. at Large 684. These and similar laws discredit any claim that, in the “Anglo-American legal tradition,” travel documents have “consistently been issued and controlled by the body exercising executive power,” ante, at 41 (emphasis added).
Returning to this side of the Atlantic, the concurrence says that passports have a “historical pedigree uniquely associated with the President.” Ante, at 58. This statement overlooks the reality that, until Congress restricted the issuance of passports to the State Department in 1856, “passports were also issued by governors, mayors, and even . . . notaries public.” Assn. of the Bar of the City of New York, Special Committee to Study Passport Procedures, Freedom to Travel 6 (1958). To be sure, early Presidents granted passports without express congressional authorization. Ante, at 43. But this point establishes Presidential authority over passports in the face of congressional silence, not Presidential authority in the face of congressional opposition. Early in the Republic's history, Congress made it a crime for a consul to “grant a passport or other paper certifying that any alien, knowing him or her to be such, is a citizen of the United States.” § 8, 2 Stat. 205 (1803). Closer to the Civil War, Congress expressly authorized the granting of passports, regulated passport fees, and prohibited the issuance of passports to foreign citizens. § 23, 11 Stat. 60–61 (1856). Since then, Congress has made laws about eligibility to receive passports, the duration for which passports remain valid, and even the type of paper used to manufacture passports. 22 U. S. C. §§ 212, 217a; § 617(b), 102 Stat. 1755. (The concurrence makes no attempt to explain how these laws were supported by congressional powers other than those it rejects in the present case.) This Court has held that the President may not curtail a citizen's travel by withholding a passport, except on grounds approved by Congress. ​Kent v. Dulles, 357 U. S. 116, 129 (1958). History and precedent thus refute any suggestion that the Constitution disables Congress from regulating the President's issuance and formulation of passports.
The concurrence adds that a passport “contains [a] communication directed at a foreign power.” Ante, at 58. The “communication” in question is a message that traditionally appears in each passport (though no statute, to my knowledge, expressly requires its inclusion): “The Secretary of State of the United States of America hereby requests all whom it may concern to permit the citizen/national of the United States named herein to pass without delay or hindrance and in case of need to give all lawful aid and protection.” App. 22. I leave it to the reader to judge whether a request to “all whom it may concern” qualifies as a “communication directed at a foreign power.” Even if it does, its presence does not affect § 214(d)'s constitutionality. Requesting protection is only a “subordinate” function of a passport. Kent, supra, at 129. This subordinate function has never been thought to invalidate other laws regulating the contents of passports; why then would it invalidate this one?
That brings me, in analytic crescendo, to the concurrence's suggestion that even if Congress's enumerated powers otherwise encompass § 214(d), and even if the President's power to regulate the contents of passports is not exclusive, the law might still violate the Constitution, because it “confict[s]” with the President's passport policy. Ante, at 55. It turns the Constitution upside-down to suggest that in areas of shared authority, it is the executive policy that preempts the law, rather than the other way around. Congress may make laws necessary and proper for carrying into execution the President's powers, Art. I, § 8, cl. 18, but the President must “take Care” that Congress's legislation “be faithfully executed,” Art. II, § 3. And Acts of Congress made in pursuance of the Constitution are the “supreme Law of the Land”; ​acts of the President (apart from treaties) are not. Art. VI, cl. 2. That is why Chief Justice Marshall was right to think that a law prohibiting the seizure of foreign ships trumped a military order requiring it. Little v. Barreme, 2 Cranch 170, 178–179 (1804). It is why Justice Jackson was right to think that a President who “takes measures incompatible with the expressed or implied will of Congress” may “rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (concurring opinion) (emphasis added). And it is why Justice Thomas is wrong to think that even if § 214(d) operates in a field of shared authority the President might still prevail.
Whereas the Court's analysis threatens congressional power over foreign affairs with gradual erosion, the concurrence's approach shatters it in one stroke. The combination of (a) the concurrence's assertion of broad, unenumerated “residual powers” in the President, see ante, at 33–40; (b) its parsimonious interpretation of Congress's enumerated powers, see ante, at 44–48; and (c) its even more parsimonious interpretation of Congress's authority to enact laws “necessary and proper for carrying into Execution” the President's executive powers, see ante, at 48–51; produces (d) a presidency more reminiscent of George III than George Washington.
International disputes about statehood and territory are neither rare nor obscure. Leading foreign debates during the 19th century concerned how the United States should respond to revolutions in Latin America, Texas, Mexico, Hawaii, Cuba. During the 20th century, attitudes toward Communist governments in Russia and China became conspicuous subjects of agitation. Disagreements about Taiwan, Kashmir, and Crimea remain prominent today. A President empowered to decide all questions relating to these matters, immune from laws embodying congressional ​disagreement with his position, would have uncontrolled mastery of a vast share of the Nation's foreign affairs.
That is not the chief magistrate under which the American People agreed to live when they adopted the national charter. They believed that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 301 (Madison). For this reason, they did not entrust either the President or Congress with sole power to adopt uncontradictable policies about any subject—foreign-sovereignty disputes included. They instead gave each political department its own powers, and with that the freedom to contradict the other's policies. Under the Constitution they approved, Congress may require Zivotofsky's passport and birth report to record his birthplace as Israel, even if that requirement clashes with the President's preference for neutrality about the status of Jerusalem.
I dissent.