(Slip Opinion) OCTOBER TERM, 2014 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS, 

ZIVOTOFSKY ET UX. v. KERRY, SECRETARY OF STATE 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT

No. 13–628. Argued November 3, 2014—Decided June 8, 2015 

Petitioner Zivotofsky was born to United States citizens living in Jerusalem. Pursuant to §214(d) of the Foreign Relations Authorization 

Act, Fiscal Year 2003, his mother asked American Embassy officials 

to list his place of birth as “Israel” on, inter alia, his passport. Section 214(d) states 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 shall, upon the request of 

the citizen or the citizen’s legal guardian, record the place of birth as 

Israel.” The Embassy officials refused to list Zivotofsky’s place of 

birth as “Israel” on his passport, citing the Executive Branch’s 

longstanding position that the United States does not recognize any 

country as having sovereignty over Jerusalem. Zivotofsky’s parents 

brought suit on his behalf in federal court, seeking to enforce §214(d). 

Ultimately, the D. C. Circuit held the statute unconstitutional, concluding that it contradicts the Executive Branch’s exclusive power to 

recognize foreign sovereigns. 

Held: 

 1. The President has the exclusive power to grant formal recognition to a foreign sovereign. Pp. 6–26. 

 (a) Where, as here, the President’s action is “incompatible with 

the expressed or implied will of Congress,” the President “can rely 

[for his authority] 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 (Jackson, J., concurring). His asserted power must be both “exclusive” and “conclusive” 

on the issue, id., at 637–638, and he may rely solely on powers the 

Constitution grants to him alone, id., at 638. To determine whether 
 

 

 

 

 

 

2 ZIVOTOFSKY v. KERRY 

Syllabus 

the President’s power of recognition is exclusive, this Court examines 

the Constitution’s text and structure and relevant precedent and history. Pp. 6–7.

(b) The Constitution’s text and structure grant the President the

power to recognize foreign nations and governments. The Reception 

Clause directs that the President “shall receive Ambassadors and 

other public Ministers,” Art. II, §3. And at the time of the founding, 

receiving an ambassador was considered tantamount to recognizing 

the sending state’s sovereignty. It is thus logical and proper to infer 

that the Reception Clause would be understood to acknowledge the

President’s power to recognize other nations. This inference is further supported by the President’s additional Article II powers: to negotiate treaties and to nominate the Nation’s ambassadors and dispatch other diplomatic agents. Though ratifying a treaty and

confirming an ambassador require congressional approval, Congress 

lacks authority to initiate the actions without the President’s involvement. The President, unlike Congress, also has the power to 

open diplomatic channels simply by engaging in direct diplomacy

with foreign heads of state and their ministers. The Constitution 

thus assigns the President, not Congress, means to effect recognition

on his own initiative. 

 Functional considerations also suggest that the President’s recognition power is exclusive. The Nation must “speak . . . with one 

voice” regarding which governments are legitimate in the eyes of the 

United States and which are not, American Insurance Assn. v. Garamendi, 539 U. S. 396, 424, and only the Executive has the characteristic of unity at all times. Unlike Congress, the President is also capable of engaging in the delicate and often secret diplomatic contacts 

that may lead to a recognition decision, see, e.g., United States v. 

Pink, 315 U. S. 203, 229, and is better positioned to take the decisive, 

unequivocal action necessary to recognize other states at international law. The President has also exercised unilateral recognition

power since the founding, a practice endorsed by this Court, see, e.g., 

Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 410. 

Under basic separation-of-powers principles, Congress, which has 

the central role in making laws, see Art. I, §8, cl. 18, does have substantial authority regarding many policy determinations that precede

and follow an act of recognition. The President’s recognition determination is thus only one part of a political process. Pp. 7–14. 

(b) A fair reading of relevant precedent illustrates that this

Court has long considered recognition to be the exclusive prerogative 

of the Executive. See, e.g., Williams v. Suffolk Ins. Co., 13 Pet. 415, 

420; United States v. Belmont, 301 U. S. 324, 330; United States v. 

Pink, supra, at 229; Banco Nacional de Cuba v. Sabbatino, supra, at 
 

 

 

 

Cite as: 576 U. S. ____ (2015) 3 

Syllabus 

410; National City Bank of N. Y. v. Republic of China, 348 U. S. 356, 

358. United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 

320, does not support a broader definition of the Executive’s power

over foreign relations that would permit the President alone to determine the whole content of the Nation’s foreign policy. The Executive is not free from the ordinary controls and checks of Congress

merely because foreign affairs are at issue. See, e.g., Medellín v. Texas, 552 U. S. 491, 523–532. Nonetheless, it is for the President alone 

to make the specific decision of what foreign power he will recognize

as legitimate, and his position must be clear. Pp. 14–20.

(c) The weight of historical evidence also indicates Congress has

accepted that the recognition power is exclusive to the Presidency. 

Cf. NLRB v. Noel Canning, 573 U. S. ___. Since the first Administration, the President has claimed unilateral authority to recognize foreign sovereigns. And Congress, for the most part, has acquiesced,

generally respecting the Executive’s policies and positions on formal

recognition and even defending the President’s constitutional prerogative. Pp. 20–26.

2. Because the power to recognize foreign states resides in the 

President alone, §214(d) infringes on the Executive’s consistent decision to withhold recognition with respect to Jerusalem. See Nixon v. 

Administrator of General Services, 433 U. S. 425, 443. The provision 

forces the President, through the Secretary of State, to identify, upon 

request, citizens born in Jerusalem as being born in Israel when, as a

matter of United States policy, neither Israel nor any other country is 

acknowledged as having sovereignty over Jerusalem.

If the recognition power is to mean anything, it must mean that the 

President not only makes the initial, formal recognition determination but also may maintain that determination in his and his agent’s 

statements. Under international law, recognition may be effected by

written or oral declaration. In addition, an act of recognition must

leave no doubt as to the intention to grant it. Thus, if Congress could 

alter the President’s statements on matters of recognition or force

him to contradict them, Congress in effect would exercise the recognition power. An “exclusive” Presidential power “disabl[es] the Congress from acting upon the subject.” Youngstown, supra, at 638 

(Jackson, J., concurring). If Congress may not pass a law, speaking

in its own voice, effecting formal recognition, then it may not force 

the President, through §214(d), to contradict his prior recognition determination in an official document issued by the Secretary of State.

See Urtetiqui v. D’Arcy, 9 Pet. 692, 698. 

Section 214(d)’s flaw is further underscored by the fact that the

statute’s purpose was to infringe on the President’s exclusive recognition power. While Congress may have power to enact passport legis-
 

 

4 ZIVOTOFSKY v. KERRY 

Syllabus 

lation of wide scope, it may not “aggrandiz[e] its power at the expense

of another branch” by requiring the President to contradict an earlier 

recognition determination in an official Executive Branch document. 

Freytag v. Commissioner, 501 U. S. 868, 878. Pp. 26–29.

725 F. 3d 197, affirmed. 

KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, 

BREYER, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment

in part and dissenting in part. ROBERTS, C. J., filed a dissenting opinion, in which ALITO, J., joined. SCALIA, J., filed a dissenting opinion, in 

which ROBERTS, C. J., and ALITO, J., joined. 
 

 

_________________ 

_________________ 

Cite as: 576 U. S. ____ (2015) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 13–628 

MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS 

AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN 

ZIVOTOFSKY, PETITIONER v. JOHN KERRY, 

SECRETARY OF STATE 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
 

[June 8, 2015]

 JUSTICE KENNEDY delivered the opinion of the Court. 

A delicate subject lies in the background of this case. 

That subject is Jerusalem. Questions touching upon the

history of the ancient city and its present legal and international status are among the most difficult and complex 

in international affairs. In our constitutional system these

matters are committed to the Legislature and the Executive, not the Judiciary. As a result, in this opinion the

Court does no more, and must do no more, than note the 

existence of international debate and tensions respecting 

Jerusalem. Those matters are for Congress and the President to discuss and consider as they seek to shape the

Nation’s foreign policies.

The Court addresses two questions to resolve the interbranch dispute now before it. First, it must determine 

whether the President has the exclusive power to grant

formal recognition to a foreign sovereign. Second, if he 

has that power, the Court must determine whether Congress can command the President and his Secretary of 
 

2 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

State to issue a formal statement that contradicts the 

earlier recognition. The statement in question here is a 

congressional mandate that allows a United States citizen

born in Jerusalem to direct the President and Secretary of

State, when issuing his passport, to state that his place of

birth is “Israel.” 

I 

A 

Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy, and indeed it is one of the most delicate issues

in current international affairs. In 1948, President Truman formally recognized Israel in a signed statement of 

“recognition.” See Statement by the President Announcing Recognition of the State of Israel, Public Papers of the

Presidents, May 14, 1948, p. 258 (1964). That statement 

did not recognize Israeli sovereignty over Jerusalem. Over 

the last 60 years, various actors have sought to assert full

or partial sovereignty over the city, including Israel, Jordan, and the Palestinians. Yet, in contrast to a consistent 

policy of formal recognition of Israel, neither President 

Truman nor any later United States President has issued 

an official statement or declaration acknowledging any 

country’s sovereignty over Jerusalem. Instead, the Executive Branch has maintained that “‘the status of Jerusalem 

. . . should be decided not unilaterally but in consultation

with all concerned.’” United Nations Gen. Assembly 

Official Records, 5th Emergency Sess., 1554th Plenary 

Meetings, United Nations Doc. No. 1 A⁄PV.1554, p. 10 

(July 14, 1967); see, e.g., Remarks by President Obama in

Address to the United Nations Gen. Assembly (Sept. 21, 

2011), 2011 Daily Comp. of Pres. Doc. No. 00661, p. 4 

(“Ultimately, it is the Israelis and the Palestinians, not us, 

who must reach agreement on the issues that divide 

them,” including “Jerusalem”). In a letter to Congress 
Cite as: 576 U. S. ____ (2015) 3 

Opinion of the Court 

then-Secretary of State Warren Christopher expressed the

Executive’s concern that “[t]here is no issue related to the 

Arab-Israeli negotiations that is more sensitive than 

Jerusalem.” See 141 Cong. Rec. 28967 (1995) (letter to

Robert Dole, Majority Leader, (June 20, 1995)). He further noted the Executive’s opinion that “any effort . . . to 

bring it to the forefront” could be “very damaging to the

success of the peace process.” Ibid. 

The President’s position on Jerusalem is reflected in 

State Department policy regarding passports and consular

reports of birth abroad. Understanding that passports

will be construed as reflections of American policy, the 

State Department’s Foreign Affairs Manual instructs its

employees, in general, to record the place of birth on a

passport as the “country [having] present sovereignty over 

the actual area of birth.” Dept. of State, 7 Foreign Affairs 

Manual (FAM) §1383.4 (1987). If a citizen objects to the 

country listed as sovereign by the State Department, he or 

she may list the city or town of birth rather than the 

country. See id., §1383.6. The FAM, however, does not 

allow citizens to list a sovereign that conflicts with Executive Branch policy. See generally id., §1383. Because the 

United States does not recognize any country as having 

sovereignty over Jerusalem, the FAM instructs employees 

to record the place of birth for citizens born there as “Jerusalem.” Id., §1383.5–6 (emphasis deleted).

In 2002, Congress passed the Act at issue here, the

Foreign Relations Authorization Act, Fiscal Year 2003,

116 Stat. 1350. Section 214 of the Act is titled “United 

States Policy with Respect to Jerusalem as the Capital of

Israel.” Id., at 1365. The subsection that lies at the heart 

of this case, §214(d), addresses passports. That subsection 

seeks to override the FAM by allowing citizens born in

Jerusalem to list their place of birth as “Israel.” Titled 

“Record of Place of Birth as Israel for Passport Purposes,” 

§214(d) states “[f]or purposes of the registration of birth, 
 

 

4 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

certification of nationality, or issuance of a passport of a 

United States citizen born in the city of Jerusalem, the 

Secretary shall, upon the request of the citizen or the 

citizen’s legal guardian, record the place of birth as Israel.” 

Id., at 1366. 

When he signed the Act into law, President George W. 

Bush issued a statement declaring his position that §214

would, “if construed as mandatory rather than advisory,

impermissibly interfere with the President’s constitutional 

authority to formulate the position of the United States,

speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign

states.” Statement on Signing the Foreign Relations 

Authorization Act, Fiscal Year 2003, Public Papers of the 

Presidents, George W. Bush, Vol. 2, Sept. 30, 2002, p. 1698

(2005). The President concluded, “U. S. policy regarding 

Jerusalem has not changed.” Ibid. 

Some parties were not reassured by the President’s 

statement. A cable from the United States Consulate in 

Jerusalem noted that the Palestine Liberation Organization Executive Committee, Fatah Central Committee, and 

the Palestinian Authority Cabinet had all issued statements claiming that the Act “‘undermines the role of the 

U. S. as a sponsor of the peace process.’” App. 231. In the 

Gaza Strip and elsewhere residents marched in protest. 

See The Associated Press and Reuters, Palestinians Stone 

Police Guarding Western Wall, The Seattle Times, Oct. 5,

2002, p. A7.

In response the Secretary of State advised diplomats to

express their understanding of “Jerusalem’s importance to

both sides and to many others around the world.” App.

228. He noted his belief that America’s “policy towards 

Jerusalem” had not changed. Ibid. 

B 

In 2002, petitioner Menachem Binyamin Zivotofsky was 
 

 

Cite as: 576 U. S. ____ (2015) 5 

Opinion of the Court 

born to United States citizens living in Jerusalem. App.

24–25. In December 2002, Zivotofsky’s mother visited the 

American Embassy in Tel Aviv to request both a passport 

and a consular report of birth abroad for her son. Id., at 

25. She asked that his place of birth be listed as “‘Jerusalem, Israel.’” Ibid. The Embassy clerks explained that,

pursuant to State Department policy, the passport would 

list only “Jerusalem.” Ibid. Zivotofsky’s parents objected

and, as his guardians, brought suit on his behalf in the

United States District Court for the District of Columbia, 

seeking to enforce §214(d).

Pursuant to §214(d), Zivotofsky claims the right to have 

“Israel” recorded as his place of birth in his passport. See 

Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 

4) (“[W]hile Zivotofsky had originally asked that ‘Jerusalem, Israel’ be recorded on his passport, ‘[b]oth sides agree

that the question now is whether §214(d) entitles [him] to

have just ‘Israel’ listed’ ”). The arguments in Zivotofsky’s

brief center on his passport claim, as opposed to the consular report of birth abroad. Indeed, in the court below, 

Zivotofsky waived any argument that his consular report 

of birth abroad should be treated differently than his 

passport. Zivotofsky v. Secretary of State, 725 F. 3d 197, 

203, n. 3 (CADC 2013). He has also waived the issue here 

by failing to differentiate between the two documents. As 

a result, the Court addresses Zivotofsky’s passport arguments and need not engage in a separate analysis of the

validity of §214(d) as applied to consular reports of birth

abroad. 

After Zivotofsky brought suit, the District Court dismissed his case, reasoning that it presented a nonjusticiable political question and that Zivotofsky lacked standing. 

App. 28–39. The Court of Appeals for the District of Columbia Circuit reversed on the standing issue, Zivotofsky 

v. Secretary of State, 444 F. 3d 614, 617–619 (2006), but 

later affirmed the District Court’s political question de-
 

6 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

termination. See Zivotofsky v. Secretary of State, 571 F. 

3d 1227, 1228 (2009).

This Court granted certiorari, vacated the judgment,

and remanded the case. Whether §214(d) is constitutional,

the Court held, is not a question reserved for the political branches. In reference to Zivotofsky’s claim the Court 

observed “the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute 

is constitutional”—not whether Jerusalem is, in fact, part 

of Israel. Zivotofsky v. Clinton, supra, at___ (slip op., at 7).

On remand the Court of Appeals held the statute unconstitutional. It determined that “the President exclusively 

holds the power to determine whether to recognize a foreign sovereign,” 725 F. 3d, at 214, and that “section 214(d) 

directly contradicts a carefully considered exercise of the 

Executive branch’s recognition power.” Id., at 217. 

This Court again granted certiorari. 572 U. S. ___ 

(2014). 

II 

In considering claims of Presidential power this Court

refers to Justice Jackson’s familiar tripartite framework 

from Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 

579, 635–638 (1952) (concurring opinion). The framework 

divides exercises of Presidential power into three categories: First, when “the President acts pursuant to an express or implied authorization of Congress, his authority

is at its maximum, for it includes all that he possesses in

his own right plus all that Congress can delegate.” Id., at 

635. Second, “in absence of either a congressional grant or 

denial of authority” there is a “zone of twilight in which he 

and Congress may have concurrent authority,” and where 

“congressional inertia, indifference or quiescence may” 

invite the exercise of executive power. Id., at 637. Finally,

when “the President takes measures incompatible with

the expressed or implied will of Congress . . . he can rely 
Cite as: 576 U. S. ____ (2015) 7 

Opinion of the Court 

only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Ibid. To 

succeed in this third category, the President’s asserted

power must be both “exclusive” and “conclusive” on the 

issue. Id., at 637–638. 

In this case the Secretary contends that §214(d) infringes on the President’s exclusive recognition power by

“requiring the President to contradict his recognition position regarding Jerusalem in official communications with

foreign sovereigns.” Brief for Respondent 48. In so doing 

the Secretary acknowledges the President’s power is “at 

its lowest ebb.” Youngstown, 343 U. S., at 637. Because 

the President’s refusal to implement §214(d) falls into

Justice Jackson’s third category, his claim must be “scrutinized with caution,” and he may rely solely on powers

the Constitution grants to him alone. Id., at 638. 

To determine whether the President possesses the 

exclusive power of recognition the Court examines the 

Constitution’s text and structure, as well as precedent and 

history bearing on the question. 

A 

Recognition is a “formal acknowledgement” that a particular “entity possesses the qualifications for statehood” 

or “that a particular regime is the effective government of 

a state.” Restatement (Third) of Foreign Relations Law of

the United States §203, Comment a, p. 84 (1986). It may

also involve the determination of a state’s territorial 

bounds. See 2 M. Whiteman, Digest of International Law 

§1, p. 1 (1963) (Whiteman) (“[S]tates may recognize or 

decline to recognize territory as belonging to, or under the 

sovereignty of, or having been acquired or lost by, other 

states”). Recognition is often effected by an express “written or oral declaration.” 1 J. Moore, Digest of International

Law §27, p. 73 (1906) (Moore). It may also be implied— 

for example, by concluding a bilateral treaty or by sending 
 

8 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

or receiving diplomatic agents. Ibid.; I. Brownlie, Principles of Public International Law 93 (7th ed. 2008)

(Brownlie).

Legal consequences follow formal recognition. Recognized sovereigns may sue in United States courts, see 

Guaranty Trust Co. v. United States, 304 U. S. 126, 137 

(1938), and may benefit from sovereign immunity when

they are sued, see National City Bank of N. Y. v. Republic 

of China, 348 U. S. 356, 358–359 (1955). The actions of a 

recognized sovereign committed within its own territory

also receive deference in domestic courts under the act of 

state doctrine. See Oetjen v. Central Leather Co., 246 

U. S. 297, 302–303 (1918). Recognition at international

law, furthermore, is a precondition of regular diplomatic 

relations. 1 Moore §27, at 72. Recognition is thus “useful,

even necessary,” to the existence of a state. Ibid. 

Despite the importance of the recognition power in

foreign relations, the Constitution does not use the term

“recognition,” either in Article II or elsewhere. The Secretary asserts that the President exercises the recognition

power based on the Reception Clause, which directs that 

the President “shall receive Ambassadors and other public

Ministers.” Art. II, §3. As Zivotofsky notes, the Reception 

Clause received little attention at the Constitutional 

Convention. See Reinstein, Recognition: A Case Study on 

the Original Understanding of Executive Power, 45 U.

Rich. L. Rev. 801, 860–862 (2011). In fact, during the 

ratification debates, Alexander Hamilton claimed that the 

power to receive ambassadors was “more a matter of 

dignity than of authority,” a ministerial duty largely

“without consequence.” The Federalist No. 69, p. 420 (C. 

Rossiter ed. 1961).

At the time of the founding, however, prominent international scholars suggested that receiving an ambassador

was tantamount to recognizing the sovereignty of the 

sending state. See E. de Vattel, The Law of Nations §78, 
 

Cite as: 576 U. S. ____ (2015) 9 

Opinion of the Court 

p. 461 (1758) (J. Chitty ed. 1853) (“[E]very state, truly

possessed of sovereignty, has a right to send ambassadors” 

and “to contest their right in this instance” is equivalent to 

“contesting their sovereign dignity”); see also 2 C. van

Bynkershoek, On Questions of Public Law 156–157 (1737) 

(T. Frank ed. 1930) (“Among writers on public law it is 

usually agreed that only a sovereign power has a right to 

send ambassadors”); 2 H. Grotius, On the Law of War and 

Peace 440–441 (1625) (F. Kelsey ed. 1925) (discussing the 

duty to admit ambassadors of sovereign powers). It is a 

logical and proper inference, then, that a Clause directing 

the President alone to receive ambassadors would be 

understood to acknowledge his power to recognize other 

nations. 

This in fact occurred early in the Nation’s history when

President Washington recognized the French Revolutionary Government by receiving its ambassador. See A. 

Hamilton, Pacificus No. 1, in The Letters of Pacificus and 

Helvidius 5, 13–14 (1845) (reprint 1976) (President 

“acknowledged the republic of France, by the reception of

its minister”). After this incident the import of the Reception Clause became clear—causing Hamilton to change his

earlier view. He wrote that the Reception Clause “includes th[e power] of judging, in the case of a revolution of

government in a foreign country, whether the new rulers 

are competent organs of the national will, and ought to be

recognised, or not.” See id., at 12; see also 3 J. Story,

Commentaries on the Constitution of the United States 

§1560, p. 416 (1833) (“If the executive receives an ambassador, or other minister, as the representative of a new 

nation . . . it is an acknowledgment of the sovereign authority de facto of such new nation, or party”). As a result, 

the Reception Clause provides support, although not the 

sole authority, for the President’s power to recognize other 

nations. 

The inference that the President exercises the recogni-
 

10 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

tion power is further supported by his additional Article II 

powers. It is for the President, “by and with the Advice

and Consent of the Senate,” to “make Treaties, provided 

two thirds of the Senators present concur.” Art. II, §2, cl.

2. In addition, “he shall nominate, and by and with the

Advice and Consent of the Senate, shall appoint Ambassadors” as well as “other public Ministers and Consuls.” 

Ibid. 

As a matter of constitutional structure, these additional 

powers give the President control over recognition decisions. At international law, recognition may be effected by

different means, but each means is dependent upon Presidential power. In addition to receiving an ambassador,

recognition may occur on “the conclusion of a bilateral

treaty,” or the “formal initiation of diplomatic relations,”

including the dispatch of an ambassador. Brownlie 93; see 

also 1 Moore §27, at 73. The President has the sole power

to negotiate treaties, see United States v. Curtiss-Wright 

Export Corp., 299 U. S. 304, 319 (1936), and the Senate 

may not conclude or ratify a treaty without Presidential 

action. The President, too, nominates the Nation’s ambassadors and dispatches other diplomatic agents. Congress

may not send an ambassador without his involvement. 

Beyond that, the President himself has the power to open

diplomatic channels simply by engaging in direct diplomacy with foreign heads of state and their ministers. The 

Constitution thus assigns the President means to effect

recognition on his own initiative. Congress, by contrast,

has no constitutional power that would enable it to initiate

diplomatic relations with a foreign nation. Because these 

specific Clauses confer the recognition power on the President, the Court need not consider whether or to what 

extent the Vesting Clause, which provides that the “executive Power” shall be vested in the President, provides

further support for the President’s action here. Art. II, §1, 

cl. 1. 
 

Cite as: 576 U. S. ____ (2015) 11 

Opinion of the Court 

The text and structure of the Constitution grant the

President the power to recognize foreign nations and 

governments. The question then becomes whether that 

power is exclusive. The various ways in which the President may unilaterally effect recognition—and the lack of

any similar power vested in Congress—suggest that it is. 

So, too, do functional considerations. Put simply, the

Nation must have a single policy regarding which governments are legitimate in the eyes of the United States

and which are not. Foreign countries need to know, before

entering into diplomatic relations or commerce with the

United States, whether their ambassadors will be received; whether their officials will be immune from suit in 

federal court; and whether they may initiate lawsuits here

to vindicate their rights. These assurances cannot be 

equivocal.

Recognition is a topic on which the Nation must “‘speak

. . . with one voice.’” American Ins. Assn. v. Garamendi, 

539 U. S. 396, 424 (2003) (quoting Crosby v. National 

Foreign Trade Council, 530 U. S. 363, 381 (2000)). That 

voice must be the President’s. Between the two political

branches, only the Executive has the characteristic of

unity at all times. And with unity comes the ability to

exercise, to a greater degree, “[d]ecision, activity, secrecy,

and dispatch.” The Federalist No. 70, p. 424 (A. Hamilton). The President is capable, in ways Congress is not, of

engaging in the delicate and often secret diplomatic contacts that may lead to a decision on recognition. See, e.g., 

United States v. Pink, 315 U. S. 203, 229 (1942). He is 

also better positioned to take the decisive, unequivocal 

action necessary to recognize other states at international 

law. 1 Oppenheim’s International Law §50, p. 169 (R. 

Jennings & A. Watts eds., 9th ed. 1992) (act of recognition 

must “leave no doubt as to the intention to grant it”).

These qualities explain why the Framers listed the traditional avenues of recognition—receiving ambassadors, 
 

12 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

making treaties, and sending ambassadors—as among the

President’s Article II powers.

As described in more detail below, the President since 

the founding has exercised this unilateral power to recognize new states—and the Court has endorsed the practice. 

See Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 

410 (1964); Pink, supra, at 229; Williams v. Suffolk Ins. 

Co., 13 Pet. 415, 420 (1839). Texts and treatises on international law treat the President’s word as the final word 

on recognition. See, e.g., Restatement (Third) of Foreign

Relations Law §204, at 89 (“Under the Constitution of the 

United States the President has exclusive authority to 

recognize or not to recognize a foreign state or government”); see also L. Henkin, Foreign Affairs and the U. S. 

Constitution 43 (2d ed. 1996) (“It is no longer questioned 

that the President does not merely perform the ceremony

of receiving foreign ambassadors but also determines 

whether the United States should recognize or refuse to

recognize a foreign government”). In light of this authority all six judges who considered this case in the Court of

Appeals agreed that the President holds the exclusive 

recognition power. See 725 F. 3d, at 214 (“[W]e conclude 

that the President exclusively holds the power to determine whether to recognize a foreign sovereign”); Zivotofsky, 571 F. 3d, at 1231 (“That this power belongs solely 

to the President has been clear from the earliest days of

the Republic”); id., at 1240 (Edwards, J., concurring) (“The

Executive has exclusive and unreviewable authority to 

recognize foreign sovereigns”).

It remains true, of course, that many decisions affecting

foreign relations—including decisions that may determine 

the course of our relations with recognized countries—

require congressional action. Congress may “regulate 

Commerce with foreign Nations,” “establish an uniform

Rule of Naturalization,” “define and punish Piracies and

Felonies committed on the high Seas, and Offences against 
 

Cite as: 576 U. S. ____ (2015) 13 

Opinion of the Court 

the Law of Nations,” “declare War,” “grant Letters of 

Marque and Reprisal,” and “make Rules for the Government and Regulation of the land and naval Forces.” U. S. 

Const., Art. I, §8. In addition, the President cannot make 

a treaty or appoint an ambassador without the approval of

the Senate. Art. II, §2, cl. 2. The President, furthermore, 

could not build an American Embassy abroad without 

congressional appropriation of the necessary funds. Art. I, 

§8, cl. 1. Under basic separation-of-powers principles, it is 

for the Congress to enact the laws, including “all Laws

which shall be necessary and proper for carrying into

Execution” the powers of the Federal Government. §8,

cl. 18. 

In foreign affairs, as in the domestic realm, the Constitution “enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown, 343 

U. S., at 635 (Jackson, J., concurring). Although the President alone effects the formal act of recognition, Congress’ 

powers, and its central role in making laws, give it substantial authority regarding many of the policy determinations that precede and follow the act of recognition itself. 

If Congress disagrees with the President’s recognition 

policy, there may be consequences. Formal recognition

may seem a hollow act if it is not accompanied by the 

dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties. And those decisions require action by the Senate or the whole Congress. 

In practice, then, the President’s recognition determination is just one part of a political process that may require 

Congress to make laws. The President’s exclusive recognition power encompasses the authority to acknowledge, in a 

formal sense, the legitimacy of other states and governments, including their territorial bounds. Albeit limited, 

the exclusive recognition power is essential to the conduct

of Presidential duties. The formal act of recognition is an

executive power that Congress may not qualify. If the 
 

14 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

President is to be effective in negotiations over a formal 

recognition determination, it must be evident to his counterparts abroad that he speaks for the Nation on that

precise question.

A clear rule that the formal power to recognize a foreign

government subsists in the President therefore serves a

necessary purpose in diplomatic relations. All this, of 

course, underscores that Congress has an important role 

in other aspects of foreign policy, and the President may

be bound by any number of laws Congress enacts. In this 

way ambition counters ambition, ensuring that the democratic will of the people is observed and respected in foreign affairs as in the domestic realm. See The Federalist 

No. 51, p. 322 (J. Madison). 

B 

No single precedent resolves the question whether the

President has exclusive recognition authority and, if so,

how far that power extends. In part that is because, until 

today, the political branches have resolved their disputes 

over questions of recognition. The relevant cases, though

providing important instruction, address the division of 

recognition power between the Federal Government and 

the States, see, e.g., Pink, 315 U. S. 203, or between the 

courts and the political branches, see, e.g., Banco Nacional 

de Cuba, 376 U. S., at 410—not between the President and 

Congress. As the parties acknowledge, some isolated 

statements in those cases lend support to the position that 

Congress has a role in the recognition process. In the end, 

however, a fair reading of the cases shows that the President’s role in the recognition process is both central and

exclusive. 

During the administration of President Van Buren, in a

case involving a dispute over the status of the Falkland 

Islands, the Court noted that “when the executive branch 

of the government” assumes “a fact in regard to the sover-
 

Cite as: 576 U. S. ____ (2015) 15 

Opinion of the Court 

eignty of any island or country, it is conclusive on the 

judicial department.” Williams, 13 Pet., at 420. Once the 

President has made his determination, it “is enough to

know, that in the exercise of his constitutional functions, 

he has decided the question. Having done this under the

responsibilities which belong to him, it is obligatory on the 

people and government of the Union.” Ibid. 

Later, during the 1930’s and 1940’s, the Court addressed issues surrounding President Roosevelt’s decision 

to recognize the Soviet Government of Russia. In United 

States v. Belmont, 301 U. S. 324 (1937), and Pink, 315 

U. S. 203, New York state courts declined to give full effect 

to the terms of executive agreements the President had 

concluded in negotiations over recognition of the Soviet 

regime. In particular the state courts, based on New York 

public policy, did not treat assets that had been seized by

the Soviet Government as property of Russia and declined 

to turn those assets over to the United States. The Court 

stated that it “may not be doubted” that “recognition,

establishment of diplomatic relations, . . . and agreements 

with respect thereto” are “within the competence of the

President.” Belmont, 301 U. S., at 330. In these matters, 

“the Executive ha[s] authority to speak as the sole organ of 

th[e] government.” Ibid. The Court added that the President’s authority “is not limited to a determination of the 

government to be recognized. It includes the power to

determine the policy which is to govern the question of 

recognition.” Pink, supra, at 229; see also Guaranty Trust 

Co., 304 U. S., at 137–138 (The “political department[’s] 

. . . action in recognizing a foreign government and in 

receiving its diplomatic representatives is conclusive on all

domestic courts”). Thus, New York state courts were 

required to respect the executive agreements.

It is true, of course, that Belmont and Pink are not 

direct holdings that the recognition power is exclusive. 

Those cases considered the validity of executive agree-
 

16 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

ments, not the initial act of recognition. The President’s 

determination in those cases did not contradict an Act of 

Congress. And the primary issue was whether the executive agreements could supersede state law. Still, the 

language in Pink and Belmont, which confirms the President’s competence to determine questions of recognition, is 

strong support for the conclusion that it is for the President alone to determine which foreign governments are 

legitimate. 

Banco Nacional de Cuba contains even stronger statements regarding the President’s authority over recognition. There, the status of Cuba’s Government and its acts 

as a sovereign were at issue. As the Court explained,

“Political recognition is exclusively a function of the Executive.” 376 U. S., at 410. Because the Executive had 

recognized the Cuban Government, the Court held that it

should be treated as sovereign and could benefit from the

“act of state” doctrine. See also Baker v. Carr, 369 U. S. 

186, 213 (1962) (“[I]t is the executive that determines a 

person’s status as representative of a foreign government”); National City Bank of N. Y., 348 U. S., at 358 

(“The status of the Republic of China in our courts is a 

matter for determination by the Executive and is outside 

the competence of this Court”). As these cases illustrate, 

the Court has long considered recognition to be the exclusive prerogative of the Executive. 

The Secretary now urges the Court to define the executive power over foreign relations in even broader terms. 

He contends that under the Court’s precedent the President has “exclusive authority to conduct diplomatic relations,” along with “the bulk of foreign-affairs powers.” 

Brief for Respondent 18, 16. In support of his submission

that the President has broad, undefined powers over 

foreign affairs, the Secretary quotes United States v. 

Curtiss-Wright Export Corp., which described the President as “the sole organ of the federal government in the 
Cite as: 576 U. S. ____ (2015) 17 

Opinion of the Court 

field of international relations.” 299 U. S., at 320. This 

Court declines to acknowledge that unbounded power. A 

formulation broader than the rule that the President alone 

determines what nations to formally recognize as legitimate—and that he consequently controls his statements 

on matters of recognition—presents different issues and is

unnecessary to the resolution of this case.

The Curtiss-Wright case does not extend so far as the 

Secretary suggests. In Curtiss-Wright, the Court considered whether a congressional delegation of power to the

President was constitutional. Congress had passed a joint 

resolution giving the President the discretion to prohibit

arms sales to certain militant powers in South America. 

The resolution provided criminal penalties for violation of 

those orders. Id., at 311–312. The Court held that the 

delegation was constitutional, reasoning that Congress

may grant the President substantial authority and discretion in the field of foreign affairs. Id., at 315–329. Describing why such broad delegation may be appropriate,

the opinion stated: 

“In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the 

advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot 

intrude; and Congress itself is powerless to invade it. 

As Marshall said in his great argument of March 7,

1800, in the House of Representatives, ‘The President 

is the sole organ of the nation in its external relations,

and its sole representative with foreign nations.’ [10

Annals of Cong.] 613. ” Id., at 319. 

This description of the President’s exclusive power was 

not necessary to the holding of Curtiss-Wright—which, 

after all, dealt with congressionally authorized action, not 
 

18 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

a unilateral Presidential determination. Indeed, CurtissWright did not hold that the President is free from Congress’ lawmaking power in the field of international 

relations. The President does have a unique role in communicating with foreign governments, as then-Congressman

John Marshall acknowledged. See 10 Annals of Cong. 613 

(1800) (cited in Curtiss-Wright, supra, at 319). But 

whether the realm is foreign or domestic, it is still the

Legislative Branch, not the Executive Branch, that makes

the law. 

In a world that is ever more compressed and interdependent, it is essential the congressional role in foreign 

affairs be understood and respected. For it is Congress

that makes laws, and in countless ways its laws will and 

should shape the Nation’s course. The Executive is not 

free from the ordinary controls and checks of Congress 

merely because foreign affairs are at issue. See, e.g., 

Medellín v. Texas, 552 U. S. 491, 523–532 (2008); Youngstown, 343 U. S., at 589; Little v. Barreme, 2 Cranch 170, 

177–179 (1804); Glennon, Two Views of Presidential Foreign Affairs Power: Little v. Barreme or Curtiss-Wright? 

13 Yale J. Int’l L. 5, 19–20 (1988); cf. Dames & Moore v. 

Regan, 453 U. S. 654, 680–681 (1981). It is not for the 

President alone to determine the whole content of the 

Nation’s foreign policy.

That said, judicial precedent and historical practice

teach that it is for the President alone to make the specific 

decision of what foreign power he will recognize as legitimate, both for the Nation as a whole and for the purpose 

of making his own position clear within the context of

recognition in discussions and negotiations with foreign

nations. Recognition is an act with immediate and powerful significance for international relations, so the President’s position must be clear. Congress cannot require

him to contradict his own statement regarding a determination of formal recognition. 
 

 

Cite as: 576 U. S. ____ (2015) 19 

Opinion of the Court 

Zivotofsky’s contrary arguments are unconvincing. The 

decisions he relies upon are largely inapposite. This 

Court’s cases do not hold that the recognition power is

shared. Jones v. United States, 137 U. S. 202 (1890), and 

Boumediene v. Bush, 553 U. S. 723 (2008), each addressed 

the status of territories controlled or acquired by the 

United States—not whether a province ought to be recognized as part of a foreign country. See also VermilyaBrown Co. v. Connell, 335 U. S. 377, 380 (1948) 

(“[D]etermination of [American] sovereignty over an area

is for the legislative and executive departments”). And no 

one disputes that Congress has a role in determining the 

status of United States territories. See U. S. Const., Art. 

IV, §3, cl. 2 (Congress may “dispose of and make all needful Rules and Regulations respecting the Territory or 

other Property belonging to the United States”). Other 

cases describing a shared power address the recognition of 

Indian tribes—which is, similarly, a distinct issue from

the recognition of foreign countries. See Cherokee Nation 

v. Georgia, 5 Pet. 1 (1831). 

To be sure, the Court has mentioned both of the political

branches in discussing international recognition, but it 

has done so primarily in affirming that the Judiciary is

not responsible for recognizing foreign nations. See Oetjen, 246 U. S., at 302 (“‘Who is the sovereign, de jure or 

de facto, of a territory is not a judicial, but is a political

question, the determination of which by the legislative and 

executive departments of any government conclusively

binds the judges’” (quoting Jones, supra, at 212)); United 

States v. Palmer, 3 Wheat. 610, 643 (1818) (“[T]he courts 

of the union must view [a] newly constituted government

as it is viewed by the legislative and executive departments of the government of the United States”). This is 

consistent with the fact that Congress, in the ordinary

course, does support the President’s recognition policy, for

instance by confirming an ambassador to the recognized 
 

20 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

foreign government. Those cases do not cast doubt on the 

view that the Executive Branch determines whether the 

United States will recognize foreign states and governments and their territorial bounds. 

C 

Having examined the Constitution’s text and this 

Court’s precedent, it is appropriate to turn to accepted

understandings and practice. In separation-of-powers

cases this Court has often “put significant weight upon

historical practice.” NLRB v. Noel Canning, 573 U. S. ___, 

___ (2014) (slip op., at 6) (emphasis deleted). Here, history

is not all on one side, but on balance it provides strong

support for the conclusion that the recognition power is 

the President’s alone. As Zivotofsky argues, certain historical incidents can be interpreted to support the position 

that recognition is a shared power. But the weight of

historical evidence supports the opposite view, which is 

that the formal determination of recognition is a power to

be exercised only by the President. 

The briefs of the parties and amici, which have been of 

considerable assistance to the Court, give a more complete

account of the relevant history, as do the works of scholars

in this field. See, e.g., Brief for Respondent 26–39; Brief 

for Petitioner 34–57; Brief for American Jewish Committee as Amicus Curiae 6–24; J. Goebel, The Recognition

Policy of the United States 97–170 (1915) (Goebel); 1

Moore §§28–58, 74–164; Reinstein, Is the President’s 

Recognition Power Exclusive? 86 Temp. L. Rev. 1, 3–50 

(2013). But even a brief survey of the major historical

examples, with an emphasis on those said to favor Zivotofsky, establishes no more than that some Presidents 

have chosen to cooperate with Congress, not that Congress 

itself has exercised the recognition power. 

From the first Administration forward, the President 

has claimed unilateral authority to recognize foreign 
 

Cite as: 576 U. S. ____ (2015) 21 

Opinion of the Court 

sovereigns. For the most part, Congress has acquiesced in

the Executive’s exercise of the recognition power. On 

occasion, the President has chosen, as may often be prudent, to consult and coordinate with Congress. As Judge

Tatel noted in this case, however, “the most striking

thing” about the history of recognition “is what is absent 

from it: a situation like this one,” where Congress has

enacted a statute contrary to the President’s formal and

considered statement concerning recognition. 725 F. 3d, 

at 221 (concurring opinion).

The first debate over the recognition power arose in

1793, after France had been torn by revolution. See Prakash & Ramsey, The Executive Power over Foreign Affairs, 111 Yale L. J. 231, 312 (2001). Once the Revolutionary Government was established, Secretary of State

Jefferson and President Washington, without consulting 

Congress, authorized the American Ambassador to resume

relations with the new regime. See Letter to Gouverneur 

Morris (Mar. 12, 1793), in 25 Papers of Thomas Jefferson

367, 367–368 (J. Catanzariti ed. 1992); Goebel 99–104. 

Soon thereafter, the new French Government proposed to

send an ambassador, Citizen Genet, to the United States. 

See id., at 105. Members of the President’s Cabinet 

agreed that receiving Genet would be a binding and public 

act of recognition. See Opinion on the Treaties with 

France (Apr. 28, 1793), in 25 Papers of Thomas Jefferson,

at 608, 612 (“The reception of the Minister at all . . . is an

ackno[w]le[d]gement of the legitimacy of their government”); see also Letter from A. Hamilton to G. Washington

(Cabinet Paper) (Apr. 1793), in 4 Works of Alexander

Hamilton 369, 369–396 (H. Lodge ed. 1904). They decided, however, both that Genet should be received and that 

consultation with Congress was not necessary. See T. 

Jefferson, Anas (Apr. 18, 1793), in 1 Writings of Thomas 

Jefferson 226, 227 (P. Ford ed. 1892); Cabinet Opinion on 

Washington’s Questions on Neutrality and the Alliance 
 

 

 

 

 

 

22 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

with France (Apr. 19, 1793), in 25 Papers of Thomas Jefferson, at 570. Congress expressed no disagreement with 

this position, and Genet’s reception marked the Nation’s 

first act of recognition—one made by the President alone.

See Prakash, supra, at 312–313. 

The recognition power again became relevant when yet 

another revolution took place—this time, in South America, 

as several colonies rose against Spain. In 1818, Speaker 

of the House Henry Clay announced he “intended moving the recognition of Buenos Ayres and probably of

Chile.” Goebel 121. Clay thus sought to appropriate 

money “‘[f]or one year’s salary’” for “‘a Minister’” to 

present-day Argentina. 32 Annals of Cong. 1500 (1818).

President Monroe, however, did not share that view. 

Although Clay gave “one of the most remarkable speeches 

of his career,” his proposed bill was defeated. Goebel 

123; 32 Annals of Cong. 1655. That action has been attributed, in part, to the fact that Congress agreed the

recognition power rested solely with the President. Goebel 

124; see, e.g., 32 Annals of Cong. 1570 (statement of Rep.

Alexander Smyth) (“[T]he acknowledgment of the independence of a new Power is an exercise of Executive authority; consequently, for Congress to direct the Executive

how he shall exercise this power, is an act of usurpation”).

Four years later, after the President had decided to recognize the South American republics, Congress did pass a

resolution, on his request, appropriating funds for “such 

missions to the independent nations on the American 

continent, as the President of the United States may deem

proper.” Act of May 4, 1822, ch. 52, 3 Stat. 678.

A decade later, President Jackson faced a recognition

crisis over Texas. In 1835, Texas rebelled against Mexico 

and formed its own government. See Goebel 144–147. 

But the President feared that recognizing the new government could ignite a war. See A. Jackson, To the Senate 

and House of Representatives of the United States (Dec. 
 

 

Cite as: 576 U. S. ____ (2015) 23 

Opinion of the Court 

21, 1836), in 3 Messages and Papers of the Presidents 265,

266–267 (J. Richardson ed. 1899). After Congress urged

him to recognize Texas, see Cong. Globe, 24th Cong., 1st 

Sess., 453 (1836); H. R. Rep. No. 854, 24th Cong., 1st Sess. 

(1836), the President delivered a message to the Legislature. He concluded there had not been a “deliberate inquiry” into whether the President or Congress possessed 

the recognition power. See A. Jackson, in 3 Messages and 

Papers of the Presidents, at 267. He stated, however, “on 

the ground of expediency, I am disposed to concur” with

Congress’ preference regarding Texas. Ibid. In response

Congress appropriated funds for a “diplomatic agent to be

sent to the Republic of Texas, whenever the President of

the United States . . . shall deem it expedient to appoint 

such minister.” Act of Mar. 3, 1837, 5 Stat. 170. Thus, 

although he cooperated with Congress, the President was

left to execute the formal act of recognition.

President Lincoln, too, sought to coordinate with Congress when he requested support for his recognition of 

Liberia and Haiti. In his first annual message to Congress 

he said he could see no reason “why we should persevere

longer in withholding our recognition of the independence 

and sovereignty of Hayti and Liberia.” Lincoln’s First 

Annual Message to Congress (Dec. 3, 1861), in 6 Messages

and Papers of the Presidents 44, 47. Nonetheless, he was 

“[u]nwilling” to “inaugurate a novel policy in regard to

them without the approbation of Congress.” Ibid. In 

response Congress concurred in the President’s recognition determination and enacted a law appropriating funds

to appoint diplomatic representatives to the two countries—leaving, as usual, the actual dispatch of ambassadors and formal statement of recognition to the President. 

Act of June 5, 1862, 12 Stat. 421. 

Three decades later, the branches again were able to 

reach an accord, this time with regard to Cuba. In 1898, 

an insurgency against the Spanish colonial government 
 

24 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

was raging in Cuba. President McKinley determined to

ask Congress for authorization to send armed forces to

Cuba to help quell the violence. See 31 Cong. Rec. 3699– 

3702 (1898). Although McKinley thought Spain was to

blame for the strife, he opposed recognizing either Cuba or

its insurgent government. Id., at 3701. At first, the 

House proposed a resolution consistent with McKinley’s 

wishes. Id., at 3810. The Senate countered with a resolution that authorized the use of force but that did recognize 

both Cuban independence and the insurgent government. 

Id., at 3993. When the Senate’s version reached the 

House, the House again rejected the language recognizing 

Cuban independence. Id., at 4017. The resolution went to 

Conference, which, after debate, reached a compromise. 

See Reinstein, 86 Temp. L. Rev., at 40–41. The final 

resolution stated “the people of the Island of Cuba are, and 

of right ought to be, free and independent,” but made no

mention of recognizing a new Cuban Government. Act of 

Apr. 20, 1898, 30 Stat. 738. Accepting the compromise, 

the President signed the joint resolution. See Reinstein, 

86 Temp. L. Rev., at 41.

For the next 80 years, “[P]residents consistently recognized new states and governments without any serious 

opposition from, or activity in, Congress.” Ibid.; see 2 

Whiteman §§6–60, at 133–242 (detailing over 50 recognition decisions made by the Executive). The next debate 

over recognition did not occur until the late 1970’s. It 

concerned China. 

President Carter recognized the People’s Republic of 

China (PRC) as the government of China, and derecognized the Republic of China, located on Taiwan. See S. 

Kan, Cong. Research Serv., China/Taiwan: Evolution of 

the “One China” Policy—Key Statements from Washington, Beijing, and Taipei 1, 10 (Oct. 10, 2014). As to the 

status of Taiwan, the President “acknowledge[d] the Chinese position” that “Taiwan is part of China,” id., at 39 
Cite as: 576 U. S. ____ (2015) 25 

Opinion of the Court 

(text of U. S.–PRC Joint Communique on the Establishment of Diplomatic Relations (Jan. 1, 1979)), but he did 

not accept that claim. The President proposed a new law

defining how the United States would conduct business

with Taiwan. See Hearings on Taiwan Legislation before 

the House Committee on Foreign Affairs, 96th Cong., 1st 

Sess., 2–6 (1979) (statement of Warren Christopher, Deputy Secretary of State). After extensive revisions, Congress 

passed, and the President signed, the Taiwan Relations

Act, 93 Stat. 14 (1979) (codified as amended at 22 U. S. C.

§§3301–3316). The Act (in a simplified summary) treated

Taiwan as if it were a legally distinct entity from China—

an entity with which the United States intended to maintain strong ties. See, e.g., §§3301, 3303(a), (b)(1), (b)(7). 

Throughout the legislative process, however, no one 

raised a serious question regarding the President’s exclusive authority to recognize the PRC—or to decline to grant

formal recognition to Taiwan. See, e.g., 125 Cong. Rec.

6709 (1979) (statement of Sen. Jacob Javits) (“Neither bill

[proposed by either Chamber] sought to reestablish official

relations between the United States and the Republic of 

China on Taiwan; Congress . . . does not have the authority to do that even if it wanted to do so”). Rather, Congress

accepted the President’s recognition determination as a 

completed, lawful act; and it proceeded to outline the trade

and policy provisions that, in its judgment, were appropriate in light of that decision.

This history confirms the Court’s conclusion in the

instant case that the power to recognize or decline to

recognize a foreign state and its territorial bounds resides 

in the President alone. For the most part, Congress has 

respected the Executive’s policies and positions as to

formal recognition. At times, Congress itself has defended 

the President’s constitutional prerogative. Over the last 

100 years, there has been scarcely any debate over the 

President’s power to recognize foreign states. In this 
 

26 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

respect the Legislature, in the narrow context of recognition, on balance has acknowledged the importance of

speaking “with one voice.” Crosby, 530 U. S., at 381. The 

weight of historical evidence indicates Congress has accepted that the power to recognize foreign states and 

governments and their territorial bounds is exclusive to 

the Presidency. 

III 

As the power to recognize foreign states resides in the

President alone, the question becomes whether §214(d) 

infringes on the Executive’s consistent decision to withhold recognition with respect to Jerusalem. See Nixon v. 

Administrator of General Services, 433 U. S. 425, 443 

(1977) (action unlawful when it “prevents the Executive

Branch from accomplishing its constitutionally assigned

functions”).

Section 214(d) requires that, in a passport or consular 

report of birth abroad, “the Secretary shall, upon the 

request of the citizen or the citizen’s legal guardian, record 

the place of birth as Israel” for a “United States citizen 

born in the city of Jerusalem.” 116 Stat. 1366. That is, 

§214(d) requires the President, through the Secretary, to 

identify citizens born in Jerusalem who so request as

being born in Israel. But according to the President, those

citizens were not born in Israel. As a matter of United 

States policy, neither Israel nor any other country is 

acknowledged as having sovereignty over Jerusalem. In 

this way, §214(d) “directly contradicts” the “carefully 

calibrated and longstanding Executive branch policy of 

neutrality toward Jerusalem.” 725 F. 3d, at 217, 216. 

If the power over recognition 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. This conclusion is a matter of both common sense 
 

Cite as: 576 U. S. ____ (2015) 27 

Opinion of the Court 

and necessity. If Congress could command the President 

to state a recognition position inconsistent with his own,

Congress could override the President’s recognition determination. Under international law, recognition may be 

effected by “written or oral declaration of the recognizing

state.” 1 Moore §27, at 73. In addition an act of recognition must “leave no doubt as to the intention to grant it.”

1 Oppenheim’s International Law §50, at 169. Thus, if 

Congress could alter the President’s statements on matters of recognition or force him to contradict them, Congress in effect would exercise the recognition power. 

As Justice Jackson wrote in Youngstown, when a Presidential power is “exclusive,” it “disabl[es] the Congress 

from acting upon the subject.” 343 U. S., at 637–638 

(concurring opinion). Here, the subject is quite narrow:

The Executive’s exclusive power extends no further than 

his formal recognition determination. But as to that 

determination, Congress may not enact a law that directly

contradicts it. This is not to say Congress may not express

its disagreement with the President in myriad ways. For 

example, it may enact an embargo, decline to confirm an

ambassador, or even declare war. But none of these acts 

would alter the President’s recognition decision. 

If Congress may not pass a law, speaking in its own 

voice, that effects formal recognition, then it follows that it 

may not force the President himself to contradict his 

earlier statement. That congressional command would not 

only prevent the Nation from speaking with one voice but 

also prevent the Executive itself from doing so in conducting foreign relations.

Although the statement required by §214(d) would not

itself constitute a formal act of recognition, it is a mandate 

that the Executive contradict his prior recognition determination in an official document issued by the Secretary of

State. See Urtetiqui v. D’Arcy, 9 Pet. 692, 699 (1835) (a

passport “from its nature and object, is addressed to for-
 

 

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Opinion of the Court 

eign powers” and “is to be considered . . . in the character

of a political document”). As a result, it is unconstitutional. This is all the more clear in light of the longstanding treatment of a passport’s place-of-birth section as an

official executive statement implicating recognition. See 

725 F. 3d, at 224 (Tatel, J., concurring). The Secretary’s

position on this point has been consistent: He will not 

place information in the place-of-birth section of a passport that contradicts the President’s recognition policy.

See 7 FAM §1383. If a citizen objects to the country listed

as sovereign over his place of birth, then the Secretary will 

accommodate him by listing the city or town of birth rather than the country. See id., §1383.6. But the Secretary 

will not list a sovereign that contradicts the President’s

recognition policy in a passport. Thus, the Secretary will

not list “Israel” in a passport as the country containing

Jerusalem. 

The flaw in §214(d) is further underscored by the undoubted fact that that the purpose of the statute was to

infringe on the recognition power—a power the Court now 

holds is the sole prerogative of the President. The statute 

is titled “United States Policy with Respect to Jerusalem

as the Capital of Israel.” §214, 116 Stat. 1365. The House 

Conference Report proclaimed that §214 “contains four

provisions related to the recognition of Jerusalem as Israel’s capital.” H. R. Conf. Rep. No. 107–671, p. 123 (2002). 

And, indeed, observers interpreted §214 as altering United

States policy regarding Jerusalem—which led to protests 

across the region. See supra, at 4. From the face of §214,

from the legislative history, and from its reception, it is 

clear that Congress wanted to express its displeasure with 

the President’s policy by, among other things, commanding the Executive to contradict his own, earlier stated 

position on Jerusalem. This Congress may not do.

It is true, as Zivotofsky notes, that Congress has substantial authority over passports. See Haig v. Agee, 453 
 

 

Cite as: 576 U. S. ____ (2015) 29 

Opinion of the Court 

U. S. 280 (1981); Zemel v. Rusk, 381 U. S. 1 (1965); Kent v. 

Dulles, 357 U. S. 116 (1958). The Court does not question

the power of Congress to enact passport legislation of wide 

scope. In Kent v. Dulles, for example, the Court held that 

if a person’s “‘liberty’” to travel “is to be regulated”

through a passport, “it must be pursuant to the lawmaking functions of the Congress.” See id., at 129. Later 

cases, such as Zemel v. Rusk and Haig v. Agee, also proceeded on the assumption that Congress must authorize

the grounds on which passports may be approved or denied. See Zemel, supra, at 7–13; Haig, supra, at 289–306. 

This is consistent with the extensive lawmaking power the 

Constitution vests in Congress over the Nation’s foreign 

affairs. 

The problem with §214(d), however, lies in how Congress exercised its authority over passports. It was an 

improper act for Congress to “aggrandiz[e] its power at the 

expense of another branch” by requiring the President to

contradict an earlier recognition determination in an 

official document issued by the Executive Branch. Freytag 

v. Commissioner, 501 U. S. 868, 878 (1991). To allow 

Congress to control the President’s communication in the 

context of a formal recognition determination is to allow 

Congress to exercise that exclusive power itself. As a 

result, the statute is unconstitutional. 

* * * 

In holding §214(d) invalid the Court does not question 

the substantial powers of Congress over foreign affairs in

general or passports in particular. This case is confined 

solely to the exclusive power of the President to control 

recognition determinations, including formal statements 

by the Executive Branch acknowledging the legitimacy of

a state or government and its territorial bounds. Congress 

cannot command the President to contradict an earlier 

recognition determination in the issuance of passports. 
 

30 ZIVOTOFSKY v. KERRY 

Opinion of the Court 

The judgment of the Court of Appeals for the District of

Columbia Circuit is 

Affirmed. 
_________________ 

_________________ 

Cite as: 576 U. S. ____ (2015) 1 

BREYER, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 13–628 

MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS 

AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN 

ZIVOTOFSKY, PETITIONER v. JOHN KERRY, 

SECRETARY OF STATE 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
 

[June 8, 2015]

 JUSTICE BREYER, concurring. 

I continue to believe that this case presents a political 

question inappropriate for judicial resolution. See Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (BREYER, J., 

dissenting). But because precedent precludes resolving 

this case on political question grounds, see id., at ___ 

(majority opinion) (slip op., at 1), I join the Court’s opinion. 
_________________ 

_________________ 

Cite as: 576 U. S. ____ (2015) 1 

Opinion of THOMAS, J. 

SUPREME COURT OF THE UNITED STATES 

No. 13–628 

MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS 

AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN 

ZIVOTOFSKY, PETITIONER v. JOHN KERRY, 

SECRETARY OF STATE 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
 

[June 8, 2015]

 JUSTICE THOMAS, concurring in the judgment in part

and dissenting in part. 

Our Constitution allocates the powers of the Federal

Government over foreign affairs in two ways. First, it 

expressly identifies certain foreign affairs powers and

vests them in particular branches, either individually or

jointly. Second, it vests the residual foreign affairs powers

of the Federal Government—i.e., those not specifically

enumerated in the Constitution—in the President by way

of Article II’s Vesting Clause.

Section 214(d) of the Foreign Relations Authorization

Act, Fiscal Year 2003, ignores that constitutional allocation of power insofar as it directs the President, contrary to

his wishes, to list “Israel” as the place of birth of Jerusalemborn citizens on their passports. The President has 

long 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 
 

2 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

U. S. citizenship. The regulation of these reports does not

fall within the President’s foreign affairs powers, but

within Congress’ enumerated powers under the Naturalization and Necessary and Proper Clauses.

Rather than adhere to the Constitution’s division of 

powers, the Court relies on a distortion of the President’s 

recognition power to hold both of these parts of §214(d) 

unconstitutional. Because I cannot join this faulty analysis, I concur only in the portion of the Court’s judgment 

holding §214(d) unconstitutional as applied to passports. I 

respectfully dissent from the remainder of the Court’s 

judgment. 

I 

A 

The Constitution specifies a number of foreign affairs

powers and divides them between the political branches.

Among others, Article I allocates to Congress the powers 

“[t]o regulate Commerce with foreign Nations,” “[t]o establish an uniform Rule of Naturalization,” “[t]o define and

punish Piracies and Felonies committed on the high Seas, 

and Offenses against the Law of Nations,” and “[t]o declare War, grant Letters of Marque and Reprisal, and 

make Rules concerning Captures on Land and Water.” 

Art. I, §8. For his part, the President has certain express

powers relating to foreign affairs, including the powers,

“by and with the Advice and Consent of the Senate,” to 

“appoint Ambassadors,” and “to make Treaties, provided

two thirds of the Senators present concur.” Art. II, §2. He 

is also assigned certain duties with respect to foreign

affairs, including serving as “Commander in Chief of

the 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 
Cite as: 576 U. S. ____ (2015) 3 

Opinion of THOMAS, J. 

Federal Government. Neither of the political branches is 

expressly authorized, for instance, to communicate with

foreign ministers, to issue passports, or to repel sudden 

attacks. Yet the President has engaged in such conduct,

with the support of Congress, since the earliest days of the 

Republic. Prakash & Ramsey, The Executive Power Over

Foreign Affairs, 111 Yale L. J. 231, 298–346 (2001) (Prakash & Ramsey). 

The President’s longstanding practice of exercising 

unenumerated foreign affairs powers reflects a constitutional directive that “the President ha[s] primary responsibility—along with the necessary power—to protect the 

national security and to conduct the Nation’s foreign 

relations.” Hamdi v. Rumsfeld, 542 U. S. 507, 580 (2004) 

(THOMAS, J., dissenting). Specifically, the Vesting Clause 

of Article II provides that “[t]he executive Power shall be

vested in a President of the United States.” Art. II, §1. 

This Clause is notably different from the Vesting Clause of

Article I, which provides only that “[a]ll legislative Powers 

herein granted shall be vested in a Congress of the United

States,” Art. I, §1 (emphasis added). By omitting the

words “herein granted” in Article II, the Constitution 

indicates that the “executive Power” vested in the President is not confined to those powers expressly identified in

the document. Instead, it includes all powers originally

understood as falling within the “executive Power” of the 

Federal Government. 

B 

Founding-era evidence reveals that the “executive 

Power” included the foreign affairs powers of a sovereign 

State. See Prakash & Ramsey 253. John Locke’s 17thcentury 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 
 

 

4 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

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 receiving 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 
 

Cite as: 576 U. S. ____ (2015) 5 

Opinion of THOMAS, J. 

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 
 

6 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

operations of war . . . and other matters of a like nature” 

are “executive details” that “fal[l] peculiarly within the 

province of the executive department.” The Federalist No. 

72, pp. 435–436 (C. Rossiter ed. 1961).

Given this pervasive view of executive power, it is unsurprising that those who ratified the Constitution understood the “executive Power” vested by Article II to include 

those foreign affairs powers not otherwise allocated in the 

Constitution. James Iredell, for example, told the North

Carolina ratifying convention that, under the new Constitution, the President would “regulate all intercourse with 

foreign powers” and act as the “primary agent” of the

United States, though no specific allocation of foreign 

affairs powers in the document so provided. 4 Elliot, 

supra, at 127, 128. And Alexander Hamilton presumed as

much when he argued that the “[e]nergy” created in the 

Constitution’s Executive would be “essential to the protection of the community against foreign attacks,” even

though no specific allocation of foreign affairs powers 

provided for the Executive to repel such assaults. See The 

Federalist No. 70, p. 423. These statements confirm that 

the “executive Power” vested in the President by Article II

includes the residual foreign affairs powers of the Federal

Government not otherwise allocated by the Constitution.1 

C 

Early practice of the founding generation also supports

this understanding of the “executive Power.” Upon taking

office, President Washington assumed the role of chief

diplomat; began to direct the Secretary of Foreign Affairs 

who, under the Articles of Confederation, had reported to 

—————— 

1This 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. 
Cite as: 576 U. S. ____ (2015) 7 

Opinion of THOMAS, J. 

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, 1

Stat. 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 
 

 

 

8 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

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, 1 Stat. 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. 
 

Cite as: 576 U. S. ____ (2015) 9 

Opinion of THOMAS, J. 

Washington’s control over foreign affairs extended 

beyond communications with other governments. When 

confronted with the question whether to recognize the

French Republic as the lawful government of France, he

received the French Republic’s emissary without the involvement of Congress. Id., at 312. When he later concluded that the emissary had acted inappropriately, he

again acted without the involvement of Congress to ask 

the French executive to recall him. Id., at 314–315. 

Washington also declared neutrality on behalf of the

United States during the war between England and 

France in 1793, see Proclamation of Neutrality (Apr. 22,

1793), an action Hamilton pseudonymously defended as a 

proper exercise of the power vested in the President by the

“general grant” of executive power in the Vesting Clause. 

Pacificus No. 1 (June 29, 1793), Letters of Pacificus and 

Helvidius 10 (1845); id., at 3. For its part, Congress applauded the President’s decision. 4 Annals of Cong. 18, 

138 (1793).

In short, the practices of the Washington administration

and First Congress confirm that Article II’s Vesting

Clause was originally understood to include a grant of

residual foreign affairs power to the Executive. 

II 

The statutory provision at issue implicates the President’s residual foreign affairs power. Section 214(d) instructs the Secretary of State, upon request of a citizen 

born in Jerusalem (or that citizen’s legal guardian), to list 

that citizen’s place of birth as Israel on his passport and 

consular report of birth abroad, even though it is the

undisputed position of the United States that Jerusalem is 

not a part of Israel. The President argues that this provision violates his foreign affairs powers generally and his

recognition power specifically. Zivotofsky rejoins that 

Congress passed §214(d) pursuant to its enumerated 
 

10 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

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 applies 

to 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 consular reports of birth abroad because those documents

do not fall within the President’s foreign affairs authority

but do fall within Congress’ enumerated powers over 

naturalization.2 

A 

1 

In the Anglo-American legal tradition, passports have

consistently been issued and controlled by the body exercising executive power—in England, by the King; in the

colonies, by the Continental Congress; and in the United 

States, by President Washington and every President

since. 

Historically, “passports were classed with those documents known as safe conducts or letters of protection, by 

—————— 

2The 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. 
 

 

Cite as: 576 U. S. ____ (2015) 11 

Opinion of THOMAS, J. 

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 
 

 

 

12 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

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, 1 Stat. 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, 11 Stat.

60. The President has continued to designate and prescribe the rules for passports ever since. 

—————— 

3Until 1978, passports were not generally required to enter or exit 

the country except during wartime. §707, 92 Stat. 993. 
 

Cite as: 576 U. S. ____ (2015) 13 

Opinion of THOMAS, J. 

2 

That the President has the power to regulate passports

under his residual foreign affairs powers does not, however,

end the matter, for Congress has repeatedly legislated

on 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, 12 Stat. 754, and 

then eliminated that exception, Act of May 30, 1866, ch. 

102, 14 Stat. 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, 47 Stat. 157; Act 

of June 4, 1920, §1, 41 Stat. 750; Act of June 15, 1917, ch.

30, Title IX, §1, 40 Stat. 227; Act of Aug. 18, 1856, §23, 11

Stat. 60; Act of Mar. 1, 1855, §12, 10 Stat. 624. It also 

enacted legislation addressing the duration for which

passports may remain valid. §116, 96 Stat. 279; Pub. L. 

90–428, 82 Stat. 446; Pub. L. 86–267, 73 Stat. 552; Act of 

July 3, 1926, 44 Stat. 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, 62 

Stat. 771; Act of Mar. 28, 1940, §7, 54 Stat. 80; 40 Stat.

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. 

—————— 

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. 
 

14 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

a 

 Zivotofsky and congressional amici identify three potential sources of congressional power to enact the portion of 

§214(d) dealing with passports. Zivotofsky first argues

that it falls within Congress’ power “to regulate the issuance and content of United States passports.” Brief for 

Petitioner 17. The U. S. Senate, as amicus curiae, likewise contends that it can be justified under Congress’ 

“plenary authority over passports,” which it derives from

the penumbras of its powers “‘[t]o regulate Commerce 

with foreign Nations’” and “‘[t]o establish an uniform Rule

of Naturalization.’” Brief for United States Senate 3 

(quoting U. S. Const., Art. I, §8, cls. 3, 4). None of these 

arguments withstands scrutiny.

The Constitution contains no Passport Clause, nor does

it explicitly vest Congress with “plenary authority over 

passports.” Because our Government is one of enumerated 

powers, “Congress has no power to act unless the Constitution authorizes it to do so.” United States v. Comstock, 

560 U. S. 126, 159 (2010) (THOMAS, J., dissenting). And 

“[t]he Constitution plainly sets forth the ‘few and defined’ 

powers that Congress may exercise.” Ibid. A “passport 

power” is not one of them. 

Section 214(d)’s passport directive fares no better under 

those powers actually included in Article I. To start, it 

does not fall within the power “[t]o regulate Commerce 

with foreign Nations.” “At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying,

and bartering, as well as transporting for these purposes.” 

United States v. Lopez, 514 U. S. 549, 585 (1995) (THOMAS, 

J., concurring). The listing of the place of birth of an 

applicant—whether born in Jerusalem or not—does not 

involve selling, buying, bartering, or transporting for those 

purposes. Cf. United States v. Morrison, 529 U. S. 598, 

613 (2000) (“[O]ur cases have upheld Commerce Clause 

regulation of intrastate activity [under the power to regu-
 

Cite as: 576 U. S. ____ (2015) 15 

Opinion of THOMAS, J. 

late commerce among the several States] only where that 

activity is economic in nature”). 

True, a passport is frequently used by persons who may 

intend to engage in commerce abroad, but that use is

insufficient to bring §214(d)’s passport directive within the

scope of this power. The specific conduct at issue here—

the listing of the birthplace of a U. S. citizen born in Jerusalem on a passport by the President—is not a commercial 

activity. Any commercial activities subsequently undertaken by the bearer of a passport are yet further removed

from that regulation.

The power “[t]o establish an uniform Rule of Naturalization” is similarly unavailing. At the founding, the word

“naturalization” meant “[t]he act of investing aliens with 

the privileges of native subjects.” 2 S. Johnson, A Dictionary of the English Language 1293 (4th ed. 1773); see also 

T. Dyche & W. Pardon, A New General English Dictionary

(1771) (“the making a foreigner or alien, a denizen or 

freeman of any kingdom or city, and so becoming, as it 

were, both a subject and a native of a king or country, that

by nature he did not belong to”). A passport has never

been issued as part of the naturalization process. It is— 

and has always been—a “travel document,” Dept. of State, 

7 Foreign Affairs Manual (or FAM) §1311(b) (2013), issued

for the same purpose it has always served: a request from 

one sovereign to another for the protection of the bearer. 

See supra, at 10–12. 

b 

For similar reasons, the Necessary and Proper Clause

gives Congress no authority here. That Clause provides,

“The Congress shall have Power . . . [t]o make all Laws

which shall be necessary and proper for carrying into

Execution the foregoing Powers, and all other Powers 

vested by this Constitution in the Government of the 

United States, or in any Department or Officer thereof.” 
 

16 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

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 
Cite as: 576 U. S. ____ (2015) 17 

Opinion of THOMAS, J. 

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, 
 

18 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

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 unusual 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 
 

Cite as: 576 U. S. ____ (2015) 19 

Opinion of THOMAS, J. 

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 
 

 

 

20 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

constitutionally empowered actors how they can implement their exclusive powers”). Second, a law could be 

“improper” if it takes one of those actions and the branch 

to which the power is allocated objects to the action. See 

Prakash & Ramsey 255–256 (“Congress has the general 

power to legislate in support of the President’s foreign

policy goals. But . . . [s]ince it is derivative of the President’s power, it must be exercised in coordination with,

and not in opposition to, the President”).

I need not resolve that question today, as the application of §214(d) to passports would be improper under 

either approach. The President has made a determination 

that the “place of birth” on a passport should list the 

country of present sovereignty. 7 FAM, §1300, App. D, 

§1330 (2014). And the President has determined that no 

country is presently exercising sovereignty over the area 

of Jerusalem. Thus, the President has provided that 

passports for persons born in Jerusalem should list “Jerusalem” as the place of birth in the passport. Id., §1360(f ).

Section 214(d) directs the President to exercise his power 

to issue and regulate the content of passports in a particular way, and the President has objected to that direction.

Under either potential mechanism for evaluating the

propriety of a law under the separation-of-powers limitation, this law would be improper.5 

c 

In support of his argument that the President must

enforce §214(d), Zivotofsky relies heavily on a similar 

statute addressing the place of birth designation for persons born in Taiwan. See Foreign Relations Authorization 

Act, Fiscal Years 1994 and 1995, §132, 108 Stat. 395. 

That statute provided, “For purposes of the registration of 

—————— 

5Because §214(d) is not proper, I need not resolve whether such a law

could be understood to “carry into execution” the President’s power. 
Cite as: 576 U. S. ____ (2015) 21 

Opinion of THOMAS, J. 

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 

—————— 

6This 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. 
 

22 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

prohibited that action. 

d 

JUSTICE SCALIA would locate Congress’ power to enact

the passport directive of §214(d) in Congress’ power under 

the Necessary and Proper Clause to bring into effect its

enumerated power over naturalization. Post, at 3–4 (dissenting opinion). As an initial matter, he asserts that 

“[t]he naturalization power . . . enables Congress to furnish the people it makes citizens with papers verifying 

their citizenship,” post, at 3, yet offers no support for this

interpretation of a clause that, by its terms, grants Congress only the “Power . . . To establish an uniform Rule of 

Naturalization,” U. S. Const., Art. I, §8, cl. 4. He then 

concludes that, if Congress can grant such documents, “it

may also require these [documents] to record his birthplace as ‘Israel’” pursuant to its power under the Necessary and Proper Clause, post, at 3. But this theory does 

not account for the President’s power to act in this area,

nor does it confront difficult questions about the application of the Necessary and Proper Clause in the case of

conflict among the branches. 

JUSTICE SCALIA disapproves of my “assertion of broad,

unenumerated ‘residual powers’ in the President,” post, at 

19, but offers no response to my interpretation of the 

words “executive Power” in the Constitution. Instead, he 

claims that I have argued for “Presidential primacy over

passports” and then rejects that position based on two 

postratification English statutes, the early practice of

nonfederal actors issuing passports in this country, and

the same congressional statutes that I have already discussed, most of which were enacted after the Civil War. 

Post, at 16–17; supra, at 13, and n. 4. But I do not argue 

that the President possesses primary power over passports. I need not argue that. I argue only that Congress

did not act according to any of the powers granted to it in 
 

 

Cite as: 576 U. S. ____ (2015) 23 

Opinion of THOMAS, J. 

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 
 

 

 

24 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

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-ofpowers 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 
 

Cite as: 576 U. S. ____ (2015) 25 

Opinion of THOMAS, J. 

SCALIA—has seriously contended that those provisions 

would afford a basis for the passport provision of §214(d). 

In the end, JUSTICE SCALIA characterizes my interpretation of the executive power, the naturalization power, and

the Necessary and Proper Clause as producing “a presidency more reminiscent of George III than George Washington.” Post, at 19. But he offers no competing interpretation of either the Article II Vesting Clause or the 

Necessary and Proper Clause. And his decision about the 

Constitution’s resolution of conflict among the branches 

could itself be criticized as creating a supreme legislative

body more reminiscent of the Parliament in England than

the Congress in America. 

* * * 

Because the President has residual foreign affairs authority to regulate passports and because there appears to

be no congressional power that justifies §214(d)’s application to passports, Zivotofsky’s challenge to the Executive’s

designation of his place of birth on his passport must fail. 

B 

Although the consular report of birth abroad shares 

some features with a passport, it is historically associated 

with naturalization, not foreign affairs. In order to establish a “uniform Rule of Naturalization,” Congress must be

able to identify the categories of persons who are eligible 

for naturalization, along with the rules for that process. 

Congress thus has always regulated the “acquisition of

citizenship by being born abroad of American parents . . .

in the exercise of the power conferred by the Constitution 

to establish a uniform rule of naturalization.” United 

States v. Wong Kim Ark, 169 U. S. 649, 688 (1898); see 

also Miller v. Albright, 523 U. S. 420, 456 (1998) (SCALIA, 

J., concurring in judgment) (recognizing that “Congress

has the power to set the requirements for acquisition of 
 

26 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

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 United 

States App. No. IV, p. 288 (1870); see also id., §109, at

38–39. 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, 34 Stat. 1229. Because of 

the importance of this registration requirement, consular 

—————— 

7The 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, 1 

Stat. 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, 10

Stat. 604, and it continues to exist to this day, see Immigration and

Nationality Act, §301(a), 66 Stat. 235. 
 

Cite as: 576 U. S. ____ (2015) 27 

Opinion of THOMAS, J. 

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, 96 Stat. 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 
 

28 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

has no historical pedigree uniquely associated with the 

President, contains no communication directed at a foreign power, and is primarily used for domestic purposes. 

To the extent that a citizen born abroad seeks a document 

to use as evidence of his citizenship abroad, he must obtain a passport. See generally 7 FAM §1311.

Because regulation of the consular report of birth 

abroad is justified as an exercise of Congress’ powers

under the Naturalization and Necessary and Proper

Clauses and does not fall within the President’s foreign

affairs powers, §214(d)’s treatment of that document is

constitutional.8 

III 

The majority does not perform this analysis, but instead 

relies on a variation of the recognition power. That power

is among the foreign affairs powers vested in the President

by Article II’s Vesting Clause, as is confirmed by Article 

II’s express assignment to the President of the duty of 

receiving foreign Ambassadors, Art. II, §3. But I cannot 

join the majority’s analysis because no act of recognition is

implicated here.9 

—————— 

8As 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. 
 

 

Cite as: 576 U. S. ____ (2015) 29 

Opinion of THOMAS, J. 

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 interna-

—————— 

10Scholars 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. 
 

30 ZIVOTOFSKY v. KERRY 

Opinion of THOMAS, J. 

tional persons or a partial loss of independence. Id., §58,

at 206. 

Assuming for the sake of argument that listing a nonrecognized 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 recogni-

—————— 

11The 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. 
 

Cite as: 576 U. S. ____ (2015) 31 

Opinion of THOMAS, J. 

tion. 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. 
 

_________________ 

_________________ 

Cite as: 576 U. S. ____ (2015) 1 

ROBERTS, C. J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 13–628 

MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS 

AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN 

ZIVOTOFSKY, PETITIONER v. JOHN KERRY, 

SECRETARY OF STATE 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
 

[June 8, 2015]

 CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO 

joins, dissenting. 

Today’s decision is a first: Never before has this Court 

accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs. We have instead 

stressed that the President’s power reaches “its lowest

ebb” when he contravenes the express will of Congress, 

“for what is at stake is the equilibrium established by our 

constitutional system.” Youngstown Sheet & Tube Co. v. 

Sawyer, 343 U. S. 579, 637–638 (1952) (Jackson, J.,

concurring).

JUSTICE SCALIA’s principal dissent, which I join in full, 

refutes the majority’s unprecedented holding in detail. I 

write separately to underscore the stark nature of the

Court’s error on a basic question of separation of powers. 

The first principles in this area are firmly established. 

The Constitution allocates some foreign policy powers to 

the Executive, grants some to the Legislature, and enjoins

the President to “take Care that the Laws be faithfully

executed.” Art. II, §3. The Executive may disregard “the 

expressed or implied will of Congress” only if the Constitution grants him a power “at once so conclusive and preclusive” as to “disabl[e] the Congress from acting upon the 
 

 

2 ZIVOTOFSKY v. KERRY 

ROBERTS, C. J., dissenting 

subject.” Youngstown, 343 U. S., at 637–638 (Jackson, J., 

concurring).

Assertions of exclusive and preclusive power leave the 

Executive “in the least favorable of possible constitutional 

postures,” and such claims have been “scrutinized with

caution” throughout this Court’s history. Id., at 640, 638; 

see Dames & Moore v. Regan, 453 U. S. 654, 668–669 

(1981). For our first 225 years, no President prevailed 

when contradicting a statute in the field of foreign affairs. 

See Medellín v. Texas, 552 U. S. 491, 524–532 (2008); 

Hamdan v. Rumsfeld, 548 U. S. 557, 590–595, 613–625 

(2006); Youngstown, 343 U. S., at 587–589 (majority opinion); Little v. Barreme, 2 Cranch 170, 177–179 (1804). 

In this case, the President claims the exclusive and 

preclusive power to recognize foreign sovereigns. The 

Court devotes much of its analysis to accepting the Executive’s contention. Ante, at 6–26. I have serious doubts 

about that position. The majority places great weight on

the Reception Clause, which directs that the Executive

“shall receive Ambassadors and other public Ministers.”

Art. II, §3. But that provision, framed as an obligation 

rather than an authorization, appears alongside the duties 

imposed on the President by Article II, Section 3, not the 

powers granted to him by Article II, Section 2. Indeed, the 

People ratified the Constitution with Alexander Hamilton’s assurance that executive reception of ambassadors 

“is more a matter of dignity than of authority” and “will be 

without consequence in the administration of the government.” The Federalist No. 69, p. 420 (C. Rossiter ed. 

1961). In short, at the time of the founding, “there was no 

reason to view the reception clause as a source of discretionary authority for the president.” Adler, The President’s Recognition Power: Ministerial or Discretionary? 25

Presidential Studies Q. 267, 269 (1995). 

The majority’s other asserted textual bases are even 

more tenuous. The President does have power to make 
 

 

Cite as: 576 U. S. ____ (2015) 3 

ROBERTS, C. J., dissenting 

treaties and appoint ambassadors. Art. II, §2. But 

those authorities are shared with Congress, ibid., so they

hardly support an inference that the recognition power is 

exclusive. 

Precedent and history lend no more weight to the

Court’s position. The majority cites dicta suggesting an

exclusive executive recognition power, but acknowledges 

contrary dicta suggesting that the power is shared. See, 

e.g., United States v. Palmer, 3 Wheat. 610, 643 (1818) 

(“the courts of the union must view [a] newly constituted

government as it is viewed by the legislative and executive 

departments of the government of the United States” 

(emphasis added)). When the best you can muster is

conflicting dicta, precedent can hardly be said to support

your side.

As for history, the majority admits that it too points in 

both directions. Some Presidents have claimed an exclusive recognition power, but others have expressed uncertainty about whether such preclusive authority exists.

Those in the skeptical camp include Andrew Jackson and 

Abraham Lincoln, leaders not generally known for their 

cramped conceptions of Presidential power. Congress has

also asserted its authority over recognition determinations

at numerous points in history. The majority therefore

falls short of demonstrating that “Congress has accepted”

the President’s exclusive recognition power. Ante, at 26. 

In any event, we have held that congressional acquiescence is only “pertinent” when the President acts in the 

absence of express congressional authorization, not when 

he asserts power to disregard a statute, as the Executive 

does here. Medellín, 552 U. S., at 528; see Dames & 

Moore, 453 U. S., at 678–679. 

In sum, although the President has authority over

recognition, I am not convinced that the Constitution 

provides the “conclusive and preclusive” power required to

justify defiance of an express legislative mandate. 
 

 

 

 

4 ZIVOTOFSKY v. KERRY 

ROBERTS, C. J., dissenting 

Youngstown, 343 U. S., at 638 (Jackson, J., concurring).

As the leading scholar on this issue has concluded, the 

“text, original understanding, post-ratification history,

and structure of the Constitution do not support the . . .

expansive claim that this executive power is plenary.” 

Reinstein, Is the President’s Recognition Power Exclusive?

86 Temp. L. Rev. 1, 60 (2013).

But even if the President does have exclusive recognition power, he still cannot prevail in this case, because the

statute at issue does not implicate recognition. See Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (ALITO, J., 

concurring in judgment) (slip op., at 1); post, at 5–10 

(SCALIA, J., dissenting). The relevant provision, §214(d),

simply gives an American citizen born in Jerusalem the

option to designate his place of birth as Israel “[f]or purposes of ” passports and other documents. Foreign Relations Authorization Act, Fiscal Year 2003, 116 Stat. 1366. 

The State Department itself has explained that “identification”—not recognition—“is the principal reason that

U. S. passports require ‘place of birth.’” App. 42. Congress has not disputed the Executive’s assurances that 

§214(d) does not alter the longstanding United States

position on Jerusalem. And the annals of diplomatic

history record no examples of official recognition accomplished via optional passport designation.

The majority acknowledges both that the “Executive’s 

exclusive power extends no further than his formal recognition determination” and that §214(d) does “not itself 

constitute a formal act of recognition.” Ante, at 27. Taken 

together, these statements come close to a confession of 

error. The majority attempts to reconcile its position by 

reconceiving §214(d) as a “mandate that the Executive 

contradict his prior recognition determination in an official document issued by the Secretary of State.” Ante, at 

27. But as just noted, neither Congress nor the Executive

Branch regards §214(d) as a recognition determination, so 
 

 

 

Cite as: 576 U. S. ____ (2015) 5 

ROBERTS, C. J., dissenting 

it is hard to see how the statute could contradict any such 

determination. 

At most, the majority worries that there may be a perceived contradiction based on a mistaken understanding of 

the effect of §214(d), insisting that some “observers interpreted §214 as altering United States policy regarding 

Jerusalem.” Ante, at 28. To afford controlling weight to

such impressions, however, is essentially to subject a duly 

enacted statute to an international heckler’s veto. 

Moreover, expanding the President’s purportedly exclusive recognition power to include authority to avoid potential misunderstandings of legislative enactments proves 

far too much. Congress could validly exercise its enumerated powers in countless ways that would create more 

severe perceived contradictions with Presidential recognition decisions than does §214(d). If, for example, the

President recognized a particular country in opposition to 

Congress’s wishes, Congress could declare war or impose a

trade embargo on that country. A neutral observer might

well conclude that these legislative actions had, to put it 

mildly, created a perceived contradiction with the President’s recognition decision. And yet each of them would

undoubtedly be constitutional. See ante, at 27. So too 

would statements by nonlegislative actors that might be

seen to contradict the President’s recognition positions, 

such as the declaration in a political party platform that 

“Jerusalem is and will remain the capital of Israel.” Landler, Pushed by Obama, Democrats Alter Platform Over

Jerusalem, N. Y. Times, Sept. 6, 2012, p. A14. 

Ultimately, the only power that could support the President’s position is the one the majority purports to reject:

the “exclusive authority to conduct diplomatic relations.”

Brief for Respondent 18. The Government offers a single

citation for this allegedly exclusive power: United States v. 

Curtiss-Wright Export Corp., 299 U. S. 304, 319–320 

(1936). But as the majority rightly acknowledges, Curtiss­
 

 

 

6 ZIVOTOFSKY v. KERRY 

ROBERTS, C. J., dissenting 

Wright did not involve a claim that the Executive could 

contravene a statute; it held only that he could act pursuant to a legislative delegation. Ante, at 17. 

The expansive language in Curtiss-Wright casting the

President as the “sole organ” of the Nation in foreign

affairs certainly has attraction for members of the Executive Branch. The Solicitor General invokes the case no 

fewer than ten times in his brief. Brief for Respondent 9,

10, 18, 19, 23, 24, 53, 54. But our precedents have never 

accepted such a sweeping understanding of executive 

power. See Hamdan, 548 U. S., at 591–592; Dames & 

Moore, 453 U. S., at 661–662; Youngstown, 343 U. S., at 

587 (majority opinion); id., at 635, n. 2 (Jackson, J., concurring); cf. Little, 2 Cranch, at 179 (Marshall, C. J.) (“I 

confess the first bias of my mind was very strong in favour

of . . . the executive . . . [b]ut I have been convinced that I

was mistaken.”).

Just a few Terms ago, this Court rejected the President’s argument that a broad foreign relations power 

allowed him to override a state court decision that contradicted U. S. international law obligations. Medellín, 552 

U. S., at 523–532. If the President’s so-called general

foreign relations authority does not permit him to countermand a State’s lawful action, it surely does not authorize him to disregard an express statutory directive enacted

by Congress, which—unlike the States—has extensive

foreign relations powers of its own. Unfortunately, despite 

its protest to the contrary, the majority today allows the

Executive to do just that.

Resolving the status of Jerusalem may be vexing, but 

resolving this case is not. Whatever recognition power the

President may have, exclusive or otherwise, is not implicated by §214(d). It has not been necessary over the past 

225 years to definitively resolve a dispute between Congress and the President over the recognition power. Perhaps we could have waited another 225 years. But instead 
 

Cite as: 576 U. S. ____ (2015) 7 

ROBERTS, C. J., dissenting 

the majority strains to reach the question based on the 

mere possibility that observers overseas might misperceive the significance of the birthplace designation at issue

in this case. And in the process, the Court takes the perilous step—for the first time in our history—of allowing the

President to defy an Act of Congress in the field of foreign 

affairs. 

I respectfully dissent. 
_________________ 

_________________ 

Cite as: 576 U. S. ____ (2015) 1 

SCALIA, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 13–628 

MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS 

AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN 

ZIVOTOFSKY, PETITIONER v. JOHN KERRY, 

SECRETARY OF STATE 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
 

[June 8, 2015]

 JUSTICE 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 fleets 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 
 

 

2 ZIVOTOFSKY v. KERRY 

SCALIA, J., dissenting 

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 Article I, §8 grants Congress 

deal in some way with foreign affairs.” L. Tribe, American 

Constitutional Law, §5–18, p. 965.

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. 
Cite as: 576 U. S. ____ (2015) 3 

SCALIA, J., dissenting 

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 confirms, 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

specification promotes the document’s citizenshipauthenticating 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 

Zivotovsky’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 
 

4 ZIVOTOFSKY v. KERRY 

SCALIA, J., dissenting 

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 find 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 20. But even with 

its attention confined to formal recognition, the Court is 
 

 

Cite as: 576 U. S. ____ (2015) 5 

SCALIA, J., dissenting 

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 “recognize 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 ratification of an international agreement or the

termination of a treaty, it is a formal legal act with effects

under international law. It signifies 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. 
 

 

6 ZIVOTOFSKY v. KERRY 

SCALIA, J., dissenting 

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). 
 

Cite as: 576 U. S. ____ (2015) 7 

SCALIA, J., dissenting 

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 recognized 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 
 

 

8 ZIVOTOFSKY v. KERRY 

SCALIA, J., dissenting 

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 28. 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 
 

Cite as: 576 U. S. ____ (2015) 9 

SCALIA, J., dissenting 

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 11. 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 
 

 

10 ZIVOTOFSKY v. KERRY 

SCALIA, J., dissenting 

power to make what the Court calls “formal statements”

about “the legitimacy of a state or government and its

territorial bounds,” ante, at 29. 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 “unjustifiable” 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 
Cite as: 576 U. S. ____ (2015) 11 

SCALIA, J., dissenting 

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 

29. 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 27. 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.” Ibid. 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 
 

12 ZIVOTOFSKY v. KERRY 

SCALIA, J., dissenting 

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-ofbirth 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 27. 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. Ros-
Cite as: 576 U. S. ____ (2015) 13 

SCALIA, J., dissenting 

siter 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 26. 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 respon-
 

 

14 ZIVOTOFSKY v. KERRY 

SCALIA, J., dissenting 

sibility 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 11 (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 Con-
 

Cite as: 576 U. S. ____ (2015) 15 

SCALIA, J., dissenting 

gress 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 10 

(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 persons 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 
 

16 ZIVOTOFSKY v. KERRY 

SCALIA, J., dissenting 

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 10–11. 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 “AngloAmerican legal tradition,” travel documents have “consistently been issued and controlled by the body exercising

executive power,” ante, at 10 (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 28. This statement overlooks the reality that, until Congress restricted 
 

Cite as: 576 U. S. ____ (2015) 17 

SCALIA, J., dissenting 

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 11–12. 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 28. 

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 
 

 

18 ZIVOTOFSKY v. KERRY 

SCALIA, J., dissenting 

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 “conflict[s]” with the President’s passport policy. 

Ante, at 24. 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 
 

Cite as: 576 U. S. ____ (2015) 19 

SCALIA, J., dissenting 

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 

2–9; (b) its parsimonious interpretation of Congress’s enumerated powers, see ante, at 13–17; 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 17–20; 

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 
 

20 ZIVOTOFSKY v. KERRY 

SCALIA, J., dissenting 

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.