Zivotofsky v. Kerry

(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 Jeru-
salem. 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. Sec-
tion 214(d) states for “purposes of the registration of birth, certifica-
tion 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, con-
cluding that it contradicts the Executive Branch’s exclusive power to
recognize foreign sovereigns.
Held:
1. The President has the exclusive power to grant formal recogni-
tion 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., concur-
ring). 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 his-
tory. 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 fur-
ther supported by the President’s additional Article II powers: to ne-
gotiate treaties and to nominate the Nation’s ambassadors and dis-
patch 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 in-
volvement. 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 recog-
nition 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. Gara­
mendi, 539 U. S. 396, 424, and only the Executive has the character-
istic of unity at all times. Unlike Congress, the President is also ca-
pable 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 interna-
tional 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 sub-
stantial authority regarding many policy determinations that precede
and follow an act of recognition. The President’s recognition deter-
mination 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 de-
termine the whole content of the Nation’s foreign policy. The Execu-
tive is not free from the ordinary controls and checks of Congress
merely because foreign affairs are at issue. See, e.g., Medellín v. Tex­
as, 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 Administra-
tion, the President has claimed unilateral authority to recognize for-
eign 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 prerog-
ative. Pp. 20–26.
2. Because the power to recognize foreign states resides in the
President alone, §214(d) infringes on the Executive’s consistent deci-
sion 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 determina-
tion 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 recogni-
tion power. An “exclusive” Presidential power “disabl[es] the Con-
gress 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 de-
termination 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 recogni-
tion 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 concur-
ring opinion. THOMAS, J., filed an opinion concurring in the judgment
in part and dissenting in part. ROBERTS, C. J., filed a dissenting opin-
ion, 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, Wash-
ington, 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 inter-
national status are among the most difficult and complex
in international affairs. In our constitutional system these
matters are committed to the Legislature and the Execu-
tive, 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 Presi-
dent to discuss and consider as they seek to shape the
Nation’s foreign policies.
The Court addresses two questions to resolve the inter-
branch 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 Con-
gress 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 re-
mains, one of the most sensitive issues in American for-
eign policy, and indeed it is one of the most delicate issues
in current international affairs. In 1948, President Tru-
man formally recognized Israel in a signed statement of
“recognition.” See Statement by the President Announc-
ing 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, Jor-
dan, 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 Execu-
tive 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 fur-
ther 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 Execu-
tive 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 “Jeru-
salem.” 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 deter-
mine 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 Organiza-
tion Executive Committee, Fatah Central Committee, and
the Palestinian Authority Cabinet had all issued state-
ments 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 “ ‘Jerusa-
lem, 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 ‘Jerusa-
lem, 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 consu-
lar 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 argu-
ments 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 dis-
missed his case, reasoning that it presented a nonjusticia-
ble political question and that Zivotofsky lacked standing.
App. 28–39. The Court of Appeals for the District of Co-
lumbia 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 politi-
cal branches. In reference to Zivotofsky’s claim the Court
observed “the Judiciary must decide if Zivotofsky’s inter-
pretation 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 uncon-
stitutional. It determined that “the President exclusively
holds the power to determine whether to recognize a for-
eign 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 catego-
ries: First, when “the President acts pursuant to an ex-
press 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 consti-
tutional 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) in-
fringes on the President’s exclusive recognition power by
“requiring the President to contradict his recognition posi-
tion 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 “scru-
tinized 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 par-
ticular “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 “writ-
ten 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, Prin-
ciples of Public International Law 93 (7th ed. 2008)
(Brownlie).
Legal consequences follow formal recognition. Recog-
nized 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 Secre-
tary 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 inter-
national 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 Revolution-
ary 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 Recep-
tion Clause became clear—causing Hamilton to change his
earlier view. He wrote that the Reception Clause “in-
cludes 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 ambas-
sador, or other minister, as the representative of a new
nation . . . it is an acknowledgment of the sovereign au-
thority 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 Ambassa-
dors” as well as “other public Ministers and Consuls.”
Ibid.
As a matter of constitutional structure, these additional
powers give the President control over recognition deci-
sions. At international law, recognition may be effected by
different means, but each means is dependent upon Presi-
dential 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 ambas-
sadors 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 diplo-
macy 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 Presi-
dent, the Court need not consider whether or to what
extent the Vesting Clause, which provides that the “execu-
tive 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 Presi-
dent 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 gov-
ernments 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 re-
ceived; 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. Hamil-
ton). The President is capable, in ways Congress is not, of
engaging in the delicate and often secret diplomatic con-
tacts 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 tradi-
tional 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 recog-
nize 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 inter-
national 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 govern-
ment”); 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 author-
ity 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 deter-
mine whether to recognize a foreign sovereign”); Zivo­
tofsky, 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
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Opinion of the Court
the Law of Nations,” “declare War,” “grant Letters of
Marque and Reprisal,” and “make Rules for the Govern-
ment 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 Consti-
tution “enjoins upon its branches separateness but inter-
dependence, autonomy but reciprocity.” Youngstown, 343
U. S., at 635 (Jackson, J., concurring). Although the Pres-
ident alone effects the formal act of recognition, Congress’
powers, and its central role in making laws, give it sub-
stantial authority regarding many of the policy determina-
tions 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 re-
strictions, and the conclusion of treaties. And those deci-
sions require action by the Senate or the whole Congress.
In practice, then, the President’s recognition determina-
tion is just one part of a political process that may require
Congress to make laws. The President’s exclusive recogni-
tion power encompasses the authority to acknowledge, in a
formal sense, the legitimacy of other states and govern-
ments, 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 coun-
terparts 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 demo-
cratic will of the people is observed and respected in for-
eign 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 Presi-
dent’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 ad-
dressed 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 Presi-
dent’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 execu-
tive agreements could supersede state law. Still, the
language in Pink and Belmont, which confirms the Presi-
dent’s competence to determine questions of recognition, is
strong support for the conclusion that it is for the Presi-
dent alone to determine which foreign governments are
legitimate.
Banco Nacional de Cuba contains even stronger state-
ments regarding the President’s authority over recogni-
tion. 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 Exec-
utive.” 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 govern-
ment”); 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 exclu-
sive prerogative of the Executive.
The Secretary now urges the Court to define the execu-
tive power over foreign relations in even broader terms.
He contends that under the Court’s precedent the Presi-
dent has “exclusive authority to conduct diplomatic rela-
tions,” 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 Presi-
dent 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 legiti-
mate—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 consid-
ered 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 discre-
tion in the field of foreign affairs. Id., at 315–329. De-
scribing why such broad delegation may be appropriate,
the opinion stated:
“In this vast external realm, with its important, com-
plicated, delicate and manifold problems, the Presi-
dent alone has the power to speak or listen as a repre-
sentative of the nation. He makes treaties with the
advice and consent of the Senate; but he alone negoti-
ates. 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, Curtiss-
Wright did not hold that the President is free from Con-
gress’ lawmaking power in the field of international
relations. The President does have a unique role in communi-
cating 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 interde-
pendent, 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); Youngs­
town, 343 U. S., at 589; Little v. Barreme, 2 Cranch 170,
177–179 (1804); Glennon, Two Views of Presidential For-
eign 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 legiti-
mate, 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 power-
ful significance for international relations, so the Presi-
dent’s position must be clear. Congress cannot require
him to contradict his own statement regarding a determi-
nation of formal recognition.
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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 recog-
nized as part of a foreign country. See also Vermilya-
Brown 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 need-
ful 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 Oet­
jen, 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 depart-
ments 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 govern-
ments 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 his-
torical 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 Commit-
tee 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 Zivo-
tofsky, 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 pru-
dent, 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 Pra-
kash & Ramsey, The Executive Power over Foreign Af-
fairs, 111 Yale L. J. 231, 312 (2001). Once the Revolution-
ary 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 govern-
ment”); 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 de-
cided, 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 Jef-
ferson, 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 mov-
ing 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 at-
tributed, 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 inde-
pendence of a new Power is an exercise of Executive au-
thority; 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 recog-
nize 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 gov-
ernment 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 Legisla-
ture. He concluded there had not been a “deliberate in-
quiry” 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 Con-
gress 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 recogni-
tion determination and enacted a law appropriating funds
to appoint diplomatic representatives to the two coun-
tries—leaving, as usual, the actual dispatch of ambassa-
dors 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 resolu-
tion 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 recog-
nized 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 recogni-
tion 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 derecog-
nized the Republic of China, located on Taiwan. See S.
Kan, Cong. Research Serv., China/Taiwan: Evolution of
the “One China” Policy—Key Statements from Washing-
ton, Beijing, and Taipei 1, 10 (Oct. 10, 2014). As to the
status of Taiwan, the President “acknowledge[d] the Chi-
nese 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 Establish-
ment 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, Dep-
uty 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 main-
tain 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 exclu-
sive 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 author-
ity 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 appropri-
ate 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 recogni-
tion, 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 ac-
cepted 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 with-
hold 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 state-
ments. 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 de-
termination. 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 recogni-
tion 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 mat-
ters of recognition or force him to contradict them, Con-
gress in effect would exercise the recognition power.
As Justice Jackson wrote in Youngstown, when a Presi-
dential 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 conduct-
ing 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 deter-
mination 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-
28 ZIVOTOFSKY v. KERRY
Opinion of the Court
eign powers” and “is to be considered . . . in the character
of a political document”). As a result, it is unconstitu-
tional. This is all the more clear in light of the longstand-
ing 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 pass-
port 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 ra-
ther 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 un-
doubted 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 Isra-
el’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, command-
ing 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 sub-
stantial 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 law-
making functions of the Congress.” See id., at 129. Later
cases, such as Zemel v. Rusk and Haig v. Agee, also pro-
ceeded on the assumption that Congress must authorize
the grounds on which passports may be approved or de-
nied. 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 Con-
gress 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 Zivo-
tofsky 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 alloca-
tion of power insofar as it directs the President, contrary to
his wishes, to list “Israel” as the place of birth of Jerusalem-
born citizens on their passports. The President 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 pass-
ports, these reports were developed to effectuate the natu-
ralization 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 Naturali-
zation 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 analy-
sis, 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 estab-
lish 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 de-
clare 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) (Pra-
kash & Ramsey).
The President’s longstanding practice of exercising
unenumerated foreign affairs powers reflects a constitu-
tional directive that “the President ha[s] primary respon-
sibility—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 Presi-
dent 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 17th-
century writings laid the groundwork for this understand-
ing 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 “federa-
tive” 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 to-
gether, 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 Black-
stone, for example, described the executive power in Eng-
land as including foreign affairs powers, such as the
“power of sending embassadors to foreign states, and receiv-
ing embassadors at home”; making “treaties, leagues, and
alliances with foreign states and princes”; “making war
and peace”; and “issu[ing] letters of marque and reprisal.”
1 Commentaries on the Laws of England 245, 249, 250,
242–252 (1765) (Blackstone). Baron de Montesquieu
similarly described executive power as including the power
to “mak[e] peace or war, sen[d] or receiv[e] embassies,
establis[h] the public security, and provid[e] against inva-
sions.” 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 Confeder-
ation. 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 offic-
ers as “ ‘Executives or Ministers.’ ” Id., at 276, and nn.
194–196. Similarly, the Essex Result of 1778—an influen-
tial report on the proposed Constitution for Massachu-
setts—described executive power as including both “exter-
nal” and “internal” powers: The external executive power
“comprehends war, peace, the sending and receiving am-
bassadors, and whatever concerns the transactions of the
state with any other independent state,” while the inter-
nal 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 Ruther-
forth’s Institutes of Natural Law—a treatise routinely
cited by the Founders, McDowell, The Limits of Natural
Law: Thomas Rutherforth and the American Legal Tradi-
tion, 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 gov-
ernment” 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 un-
surprising that those who ratified the Constitution under-
stood 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 Consti-
tution, 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 protec-
tion 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
——————
1 This discussion of the allocation of federal foreign affairs powers
should not be understood to address the allocation of foreign affairs
powers between the Federal Government and the States. The extent to
which the States retained foreign affairs powers following ratification is
not before us today.
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 Presi-
dent. 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 me-
morials 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 Presi-
dent 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 re-
sponded by passing “An Act providing the means of inter-
course 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 Sen-
ate’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 be-
longed “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 nomi-
nated 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 coun-
tries, and removed them from their positions at will.
Prakash & Ramsey 308–309. He also corresponded with
foreign leaders, representing that his role as the “ ‘su-
preme 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 communi-
cations 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 in-
volvement of Congress. Id., at 312. When he later con-
cluded 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 ap-
plauded 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 Presi-
dent’s residual foreign affairs power. Section 214(d) in-
structs 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 provi-
sion 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 consti-
tutionally 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 con-
sular 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 exer-
cising 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 docu-
ments known as safe conducts or letters of protection, by
——————
2 The majority asserts that Zivotofsky “waived any argument that his
consular report of birth abroad should be treated differently than his
passport” in the court below and in this Court because he “fail[ed] to
differentiate between the two documents.” Ante, at 5. But at every
stage of the proceedings, Zivotofsky has pressed his claim that he is
entitled to have his place of birth listed as “Israel” on both his passport
and his consular report of birth abroad, and the consular report issue is
fairly included in the question presented. Parties cannot waive the
correct interpretation of the law simply by failing to invoke it. See, e.g.,
EEOC v. FLRA, 476 U. S. 19, 23 (1986) ( per curiam). That the parties
have argued the case as if the same analysis should apply to both
documents does not relieve this Court of its responsibility to interpret
the law correctly.
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 Black-
stone 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 de-
part 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 govern-
ment, 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 Con-
gress 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 prac-
tice [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 coun-
try is one such practice. From the ratification until the
end of the Civil War, the President issued passports with-
out 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 discre-
tionary.” Urtetiqui v. D’Arcy, 9 Pet. 692, 699 (1835).
Congress acted in support of that authority by criminaliz-
ing 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 pre-
scribe the rules for passports ever since.
——————
3 Until 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 apply-
ing 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 legisla-
tion 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 poten-
tial 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 issu-
ance and content of United States passports.” Brief for
Petitioner 17. The U. S. Senate, as amicus curiae, like-
wise 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 Consti-
tution 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 Constitu-
tion 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 Jeru-
salem on a passport by the President—is not a commercial
activity. Any commercial activities subsequently under-
taken by the bearer of a passport are yet further removed
from that regulation.
The power “[t]o establish an uniform Rule of Naturaliza-
tion” 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 Diction-
ary 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, “Con-
gress lacks authority to legislate [under this provision] if
the objective is anything other than ‘carrying into Execu-
tion’ one or more of the Federal Government’s enumerated
powers.” Comstock, supra, at 161 (THOMAS, J., dissent-
ing). The “end [must] be legitimate” under our constitu-
tional structure. McCulloch v. Maryland, 4 Wheat. 316,
421 (1819).
But even if the objective of a law is carrying into execu-
tion one of the Federal Government’s enumerated powers,
the law must be both necessary and proper to that objec-
tive. 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 Con-
gress “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 exe-
cution 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 relation-
ship 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 naturaliza-
tion 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 com-
petence 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; accommo-
dated; 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 “neces-
sary” superfluous, McCulloch, supra, at 413, and we ordi-
narily attempt to give effect “to each word of the Constitu-
tion,” 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 limita-
tions on that jurisdiction: It must conform to (1) the alloca-
tion 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 pow-
ers, 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 execut-
ing 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 citi-
zen” wrote in a Virginia newspaper that, even if the gov-
ernmental powers could not “be executed without the aid
of a law, granting commercial monopolies, inflicting un-
usual punishments, creating new crimes, or commanding
any unconstitutional act,” thus making the law necessary
to the execution of a power, “such a law would be mani-
festly 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 Ratifica-
tion of the Constitution 428, 431 (J. Kaminski & G. Sala-
dino 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. Mort-
gage 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 under-
mine the constitutional allocation of powers.
That the evidence thus points to a definition of “proper”
that protects the separation of powers does not fully ex-
plain 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 mech-
anisms, 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 exer-
cise of its power. See Calabresi & Prakash, The Presi-
dent’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 imple-
ment 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 Presi-
dent’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 applica-
tion 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 “Jeru-
salem” 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 particu-
lar 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 limita-
tion, 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 per-
sons 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
——————
5 Because §214(d) is not proper, I need not resolve whether such a law
could be understood to “carry into execution” the President’s power.
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 omit-
ted).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 birth-
place 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 prevail-
ing 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
——————
6 This principle is not necessarily inconsistent with the second mech-
anism 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 (dis-
senting opinion). As an initial matter, he asserts that
“[t]he naturalization power . . . enables Congress to fur-
nish 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 Con-
gress 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 birth-
place as ‘Israel’ ” pursuant to its power under the Neces-
sary 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 applica-
tion 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 dis-
cussed, 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 pass-
ports. 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 institu-
tional perspective, but still does not resolve the issue.
Those regulations were, as I have already described, nar-
row 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 author-
ity to act in this area? Or is it because he views Congress’
directive to the President as consistent with the separa-
tion of powers, irrespective of the President’s authority? If
the latter, is that because he perceives no separation-of-
powers limitations on Congress when it acts to carry into
execution one of its enumerated powers, as opposed to the
enumerated powers of another branch? And if that is the
case, what textual, structural, or historical evidence exists
for that interpretation? JUSTICE SCALIA’s dissent raises
more questions than it answers.
JUSTICE SCALIA’s dissent does at least answer how, in
his view, the Constitution would resolve a conflict between
the political branches, each acting pursuant to the powers
granted them under the Constitution. He believes that
congressional power should trump in any such conflict.
Post, at 18. I see nothing in the Constitution that clearly
mandates that solution to a difficult separation-of-powers
question, and I need not opine on it. I find no power under
which Congress could lawfully have enacted the passport
directive of §214(d), apart from its power under the Neces-
sary 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 interpreta-
tion of the executive power, the naturalization power, and
the Necessary and Proper Clause as producing “a presi-
dency more reminiscent of George III than George Wash-
ington.” Post, at 19. But he offers no competing interpre-
tation 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 au-
thority to regulate passports and because there appears to
be no congressional power that justifies §214(d)’s applica-
tion 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 estab-
lish 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 acquisi-
tion 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 is-
sued 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 resid-
ing 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
——————
7 The First Congress passed a law recognizing citizenship at birth for
children born abroad to U. S. citizens. Act of Mar. 26, 1790, ch. 3, §1, 1
Stat. 104. An 1802 amendment to the provision rendered the availabil-
ity 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 chil-
dren 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 “appropri-
ate” and “plainly adapted” to the exercise of the naturali-
zation power. See Comstock, 560 U. S., at 161 (THOMAS,
J., dissenting).
By contrast, regulation of the report bears no relation-
ship 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 for-
eign 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 ob-
tain 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
——————
8 As the issue is not presented, I need not decide how a direct conflict
between action pursuant to an enumerated power of Congress and
action pursuant to the residual foreign affairs power of the President
should be resolved.
9 I assume, as the majority does, that the recognition power conferred
on the President by the Constitution is the power to accomplish the act
of recognition as that act is defined under international law. It is
possible, of course, that the Framers had a fixed understanding of the
act of recognition that is at odds with the definition of that act under
international law. But the majority does not make that argument, nor
does the majority even specifically address how consular reports of
birth abroad are related to recognition. Lacking any evidence that the
modern practice of recognition deviates in any relevant way from the
historical practice, or that the original understanding of the recognition
power was something other than the power to take part in that prac-
tice, 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 commu-
nity 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) (Oppen-
heim).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, ac-
quires 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 re-
gained 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 repub-
lic.” 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 interna-
tional person include the union of two separate interna-
——————
10 Scholars have long debated the extent to which official recognition
by the sovereign states that make up the international community is
necessary to bring a new “state” into the international community and
thereby subject it to international law. Oppenheim §39, at 128–129.
Resolving this debate is not necessary to resolve the issue at hand, so I
describe the modern view of recognition without endorsing it.
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 non-
recognized foreign sovereign as a citizen’s place of birth on
a U. S. passport could have the effect of recognizing that
sovereign under international law, no such recognition
would occur under the circumstances presented here. The
United States has recognized Israel as a foreign sovereign
since May 14, 1948. Statement by the President Announc-
ing 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 recogni-
tion 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 ques-
tion will have no effect on that recognition.11
Perhaps recognizing that a formal recognition is not
implicated here, the majority reasons that, if the Execu-
tive’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 state-
ments.” Ante, at 26. By “alter[ing] the President’s state-
ments on matters of recognition or forc[ing] him to contra-
dict them,” the majority reasons, “Congress in effect would
exercise the recognition power.” Ante, at 27. This argu-
ment stretches the recognition power beyond all recogni-
——————
11 The analysis might look different if §214(d) required the President
to list as a “place of birth” a country that the United States has never
officially recognized. That is not the case here.
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 per-
son. Rather than adopt a novel definition of the recogni-
tion power, the majority should have looked to other for-
eign 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 Con-
gress 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 Constitu-
tion grants him a power “at once so conclusive and preclu-
sive” 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 opin-
ion); 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 Execu-
tive’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 Hamil-
ton’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 govern-
ment.” 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 discre-
tionary authority for the president.” Adler, The Presi-
dent’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 exclu-
sive recognition power, but others have expressed uncer-
tainty 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 acquies-
cence 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 recogni-
tion power, he still cannot prevail in this case, because the
statute at issue does not implicate recognition. See Zivo­
tofsky 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 pur-
poses of ” passports and other documents. Foreign Rela-
tions Authorization Act, Fiscal Year 2003, 116 Stat. 1366.
The State Department itself has explained that “identifi-
cation”—not recognition—“is the principal reason that
U. S. passports require ‘place of birth.’ ” App. 42. Con-
gress 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 accom-
plished via optional passport designation.
The majority acknowledges both that the “Executive’s
exclusive power extends no further than his formal recog-
nition 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 offi-
cial 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 per­
ceived contradiction based on a mistaken understanding of
the effect of §214(d), insisting that some “observers inter-
preted §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 exclu-
sive recognition power to include authority to avoid poten-
tial misunderstandings of legislative enactments proves
far too much. Congress could validly exercise its enumer-
ated powers in countless ways that would create more
severe perceived contradictions with Presidential recogni-
tion 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 Presi-
dent’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.” Land-
ler, Pushed by Obama, Democrats Alter Platform Over
Jerusalem, N. Y. Times, Sept. 6, 2012, p. A14.
Ultimately, the only power that could support the Presi-
dent’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 pursu-
ant 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 Execu-
tive 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., con-
curring); 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 Presi-
dent’s argument that a broad foreign relations power
allowed him to override a state court decision that contra-
dicted 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 coun-
termand a State’s lawful action, it surely does not author-
ize 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 impli-
cated by §214(d). It has not been necessary over the past
225 years to definitively resolve a dispute between Con-
gress and the President over the recognition power. Per-
haps 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 misper-
ceive the significance of the birthplace designation at issue
in this case. And in the process, the Court takes the peri-
lous 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 rela-
tions formed no exception to that principle.
The People therefore adopted a Constitution that di-
vides 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 ambassa-
dors, 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 Constitu-
tion 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 Na-
tional 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.” For-
eign 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 congres-
sional power under Article I. Congress’s power to “estab-
lish 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 certi-
fies citizenship for purposes of international travel). As
the Necessary and Proper Clause confirms, every congres-
sional power “carries with it all those incidental powers
which are necessary to its complete and effectual execu-
tion.” Cohens v. Virginia, 6 Wheat. 264, 429 (1821). Even
on a miserly understanding of Congress’s incidental au-
thority, Congress may make grants of citizenship “effec-
tual” by providing for the issuance of certificates authenti-
cating 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 citizenship-
authenticating function by identifying the bearer, distinguish-
ing people with similar names but different birthplaces
from each other, helping authorities uncover identity
fraud, and facilitating retrieval of the Government’s cit-
izenship records. See App. 70. To be sure, recording
Zivotovsky’s birthplace as “Jerusalem” rather than “Israel”
would fulfill these objectives, but when faced with alterna-
tive 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 legisla-
tive 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 recogni-
tion. Recognition is a sovereign’s official acceptance of a
status under international law. A sovereign might recog-
nize 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 Presi-
dent alone responsible for recognition and that §214(d)
invades this exclusive power. I agree that the Constitu-
tion 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 con-
tinued acceptance of that status and respect for any at-
tendant 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 chal-
lenging in future whatever they have previously acknowl-
edged.” 1 G. Schwarzenberger, International Law 127 (3d
ed. 1957). In order to extend recognition, a state must
perform an act that unequivocally manifests that inten-
tion. 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 ambas-
sador. 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 con-
testing 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 inten-
tion 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 bor-
ders, 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 proto-
col 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 sover-
eignty 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 “Bel-
fast” rather than “United Kingdom” does not derecognize
the United Kingdom’s sovereignty over Northern Ireland.
The best indication that §214(d) does not concern recog-
nition comes from the State Department’s policies concern-
ing 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 in-
deed 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 Respond-
ent 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 record-
ing 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, certi-
fication of nationality, or issuance of a passport.” (Em-
phasis 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 Jerusa-
lem is a part of Israel; that it appears in a section of the
statute bearing the title “United States Policy with Re-
spect 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 differ-
ence 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 sover-
eignty. 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 hypo-
theticals. A trade statute from 1800, for example, pro-
vided 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 inva-
sion of Kuwait by enacting a resolution authorizing use of
military force. 105 Stat. 3. No doubt the resolution re-
flected 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 legiti-
mate 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 provok-
ing constitutional objections. A recent resolution ex-
pressed the House of Representatives’ “strong support for
the legitimate, democratically-elected Government of
Lebanon” and condemned an “illegitimate” and “unjustifi-
able” 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 Gov-
ernment 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 in-
ternational 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 ancil-
lary 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 recogni-
tion determination in an official document issued by the
Executive Branch.” Ibid. So requiring imports from Jeru-
salem to be taxed like goods from Israel is fine, but requir-
ing Customs to issue an official invoice to that effect is
not? Nonsense.
Recognition is a type of legal act, not a type of state-
ment. 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 Presi-
dent’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 recogni-
tion.” 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 determina-
tion.” 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-of-
birth field in passports and birth reports as a forum for
performing the act of recognition. That is why nobody
thinks the United States withdraws recognition from
Canada when it accommodates a Quebec nationalist’s
request to have his birthplace recorded as “Montreal.”
To the extent doubts linger about whether the United
States recognizes Israel’s sovereignty over Jerusalem,
§214(d) leaves the President free to dispel them by issuing
a disclaimer of intent to recognize. A disclaimer always
suffices to prevent an act from effecting recognition.
Restatement (Second) of Foreign Relations Law of the
United States §104(1) (1962). Recall that an earlier law
grants citizens born in Taiwan the right to have their
birthplaces recorded as “Taiwan.” The State Department
has complied with the law, but states in its Foreign Affairs
Manual: “The United States does not officially recognize
Taiwan as a ‘state’ or ‘country,’ although passport issuing
officers may enter ‘Taiwan’ as a place of birth.” 7 FAM
§1300, App. D, §1340(d)(6). Nothing stops a similar dis-
claimer here.
At other times, the Court seems concerned with Con-
gress’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 Presi-
dent’s refusal to recognize Israel’s sovereignty over Jeru-
salem. Ante, at 27. But even if the Constitution empow-
ers the President alone to extend recognition, it nowhere
obliges Congress to align its laws with the President’s
recognition decisions. Because the President and Con-
gress are “perfectly co-ordinate by the terms of their com-
mon 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 recog-
nition power does not constrain Congress’s use of its legis-
lative 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 Amer-
ica, 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, counter-
feiting 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 in-
stance, that the law prevents the President from main-
taining his neutrality about Jerusalem in “his and his
agent’s statements.” Ante, at 26. That is of no constitu-
tional significance. As just shown, Congress has power to
legislate without regard to recognition, and where Con-
gress 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 ame-
nable to the laws for his conduct; and cannot at his discre-
tion 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 Con-
gress 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. Func-
tionalism of the sort the Court practices today will system-
atically 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) constitu-
tional to the extent it regulates birth reports, but uncon-
stitutional 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 passen-
gers, “a part of our commerce with foreign nations,” Hen-
derson 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. In-
cluding 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 princi-
pal means of identifying citizens entitled to entry. Includ-
ing 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 concur-
rence’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 de-
duced from the nature of the objects themselves.” McCul-
loch, 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 ex-
pressed the name and rank, occupation or description, of
such alien.” 33 Geo. III, ch. 4, §8, in 39 Eng. Stat. at
Large 12. The Aliens Act 1798 prohibited aliens from
leaving the country without “a passport . . . first obtained
from one of his Majesty’s principal secretaries of state,”
and instructed customs officers to mark, sign, and date
passports before allowing their bearers to depart. 38 Geo.
III, ch. 50, §8, in 41 Eng. Stat. at Large 684. These and
similar laws discredit any claim that, in the “Anglo-
American legal tradition,” travel documents have “consist-
ently 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 state-
ment 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 Proce-
dures, Freedom to Travel 6 (1958). To be sure, early
Presidents granted passports without express congres-
sional authorization. Ante, at 11–12. But this point estab-
lishes 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 pass-
ports, 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 concur-
rence 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 prece-
dent 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 tradi-
tionally 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 citi-
zen/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 con-
cern” 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 “sub-
ordinate” 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 concur-
rence’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 execu-
tive 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 Constitu-
tion are the “supreme Law of the Land”; acts of the Presi-
dent (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 constitu-
tional 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 con-
currence’s approach shatters it in one stroke. The combi-
nation of (a) the concurrence’s assertion of broad, unenu-
merated “residual powers” in the President, see ante, at
2–9; (b) its parsimonious interpretation of Congress’s enu-
merated 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 Execu-
tion” 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 congres-
sional disagreement with his position, would have un-
controlled mastery of a vast share of the Nation’s foreign
affairs.
That is not the chief magistrate under which the Ameri-
can 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 poli-
cies about any subject—foreign-sovereignty disputes in-
cluded. 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 re-
quirement clashes with the President’s preference for
neutrality about the status of Jerusalem.
I dissent.