NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 13–628

															_________________

															MENACHEM BINYAMIN ZIVOTOFSKY, by his parents
and guardians, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER v. JOHN KERRY, SECRETARY OF STATE

															on writ of certiorari to the united states
court of appeals for the district of columbia circuit

															[June 8, 2015]

															Justice Kennedy delivered the opinion of the
Court.

															A delicate subject lies in the background of
this case. That subject is Jerusalem. Questions touching upon the
history of the ancient city and its present legal and international
status are among the most difficult and complex in international
affairs. In our constitutional system these matters are committed
to the Legislature and the Executive, not the Judiciary. As a
result, in this opinion the Court does no more, and must do no
more, than note the existence of international debate and tensions
respecting Jerusalem. Those matters are for Congress and the
President to discuss and consider as they seek to shape the
Nation’s foreign policies.

															The Court addresses two questions to resolve the
interbranch dispute now before it. First, it must determine whether
the President has the exclusive power to grant formal recognition
to a foreign sovereign. Second, if he has that power, the Court
must determine whether Congress can command the President and his
Secretary of State to issue a formal statement that contradicts the
earlier recognition. The statement in question here is a
congressional mandate that allows a United States citizen born in
Jerusalem to direct the President and Secretary of State, when
issuing his passport, to state that his place of birth is
“Israel.”

															I

															A

															Jerusalem’s political standing has long been,
and remains, one of the most sensitive issues in American foreign
policy, and indeed it is one of the most delicate issues in current
international affairs. In 1948, President Truman formally
recognized Israel in a signed statement of “recognition.” See
Statement by the President Announcing Recognition of the State of
Israel, Public Papers of the Presidents, May 14, 1948, p. 258
(1964). That statement did not recognize Israeli sovereignty over
Jerusalem. Over the last 60 years, various actors have sought to
assert full or partial sovereignty over the city, including Israel,
Jordan, and the Palestinians. Yet, in contrast to a consistent
policy of formal recognition of Israel, neither President Truman
nor any later United States President has issued an official
statement or declaration acknowledging any country’s sovereignty
over Jerusalem. Instead, the Executive Branch has maintained that
“ ‘the status of Jerusalem . . . should be decided not
unilaterally but in consultation with all concerned.’ ” United
Nations Gen. Assembly Official Records, 5th Emergency Sess., 1554th
Plenary Meetings, United Nations Doc. No. 1 A⁄PV.1554, p. 10
(July 14, 1967); see, e.g., Remarks by President Obama in
Address to the United Nations Gen. Assembly (Sept. 21, 2011), 2011
Daily Comp. of Pres. Doc. No. 00661, p. 4 (“Ultimately, it is the
Israelis and the Palestinians, not us, who must reach agreement on
the issues that divide them,” including “Jerusalem”). In a letter
to Congress then-Secretary of State Warren Christopher expressed
the Executive’s concern that “[t]here is no issue related to the
Arab-Israeli negotiations that is more sensitive than Jerusalem.”
See 141 Cong. Rec. 28967 (1995) (letter to Robert Dole, Majority
Leader, (June 20, 1995)). He further noted the Executive’s opinion
that “any effort . . . to bring it to the forefront”
could be “very damaging to the success of the peace process.” Ibid. The President’s position on Jerusalem is
reflected in State Department policy regarding passports and
consular reports of birth abroad. Understanding that passports will
be construed as reflections of American policy, the State
Department’s Foreign Affairs Manual instructs its employees, in
general, to record the place of birth on a passport as the “country
[having] present sovereignty over the actual area of birth.” Dept.
of State, 7 Foreign Affairs Manual (FAM) §1383.4 (1987). If a
citizen objects to the country listed as sovereign by the State
Department, he or she may list the city or town of birth rather
than the country. See id. , §1383.6. The FAM, however, does
not allow citizens to list a sovereign that conflicts with
Executive Branch policy. See generally id. , §1383. Because
the United States does not recognize any country as having
sovereignty over Jerusalem, the FAM instructs employees to record
the place of birth for citizens born there as “Jerusalem.” Id. , §1383.5–6 (emphasis deleted).

															In 2002, Congress passed the Act at issue here,
the Foreign Relations Authorization Act, Fiscal Year 2003, 116Stat.
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, certification of nationality, or issuance of a passport
of a United States citizen born in the city of Jerusalem, the
Secretary shall, upon the request of the citizen or the citizen’s
legal guardian, record the place of birth as Israel.” Id. ,
at 1366.

															When he signed the Act into law, President
George W. Bush issued a statement declaring his position that §214
would, “if construed as mandatory rather than advisory,
impermissibly interfere with the President’s constitutional
authority to formulate the position of the United States, speak for
the Nation in international affairs, and determine the terms on
which recognition is given to foreign states.” Statement on Signing
the Foreign Relations Authorization Act, Fiscal Year 2003, Public
Papers of the Presidents, George W. Bush, Vol. 2, Sept. 30, 2002,
p. 1698 (2005). The President concluded, “U. S. policy
regarding Jerusalem has not changed.” Ibid. Some parties were not reassured by the
President’s statement. A cable from the United States Consulate in
Jerusalem noted that the Palestine Liberation Organization
Executive Committee, Fatah Central Committee, and the Palestinian
Authority Cabinet had all issued statements claiming that the Act
“ ‘undermines the role of the U. S. as a sponsor of the
peace process.’ ” App. 231. In the Gaza Strip and elsewhere
residents marched in protest. See The Associated Press and Reuters,
Palestinians Stone Police Guarding Western Wall, The Seattle Times,
Oct. 5, 2002, p. A7.

															In response the Secretary of State advised
diplomats to express their understanding of “Jerusalem’s importance
to both sides and to many others around the world.” App. 228. He
noted his belief that America’s “policy towards Jerusalem” had not
changed. Ibid. B

															In 2002, petitioner Menachem Binyamin
Zivotofsky was born to United States citizens living in
Jerusalem. App. 24–25. In December 2002, Zivotofsky’s mother
visited the American Embassy in Tel Aviv to request both a passport
and a consular report of birth abroad for her son. Id., at
25. She asked that his place of birth be listed as
“ ‘Jerusalem, Israel.’ ” Ibid. The Embassy clerks
explained that, pursuant to State Department policy, the passport
would list only “Jerusalem.” Ibid. Zivotofsky’s parents
objected and, as his guardians, brought suit on his behalf in the
United States District Court for the District of Columbia, seeking
to enforce §214(d).

															Pursuant to §214(d), Zivotofsky claims the right
to have “Israel” recorded as his place of birth in his passport.
See Zivotofsky v. Clinton , 566 U. S. ___, ___
(2012) (slip op., at 4) (“[W]hile Zivotofsky had originally asked
that ‘Jerusalem, Israel’ be recorded on his passport, ‘[b]oth sides
agree that the question now is whether §214(d) entitles [him] to
have just ‘Israel’ listed’ ”). The arguments in Zivotofsky’s
brief center on his passport claim, as opposed to the consular
report of birth abroad. Indeed, in the court below, Zivotofsky
waived any argument that his consular report of birth abroad should
be treated differently than his passport. Zivotofsky v. Secretary of State , 725 F. 3d 197, 203, n. 3 (CADC 2013). He
has also waived the issue here by failing to differentiate between
the two documents. As a result, the Court addresses Zivotofsky’s
passport arguments and need not engage in a separate analysis of
the validity of §214(d) as applied to consular reports of birth
abroad.

															After Zivotofsky brought suit, the District
Court dismissed his case, reasoning that it presented a
nonjusticiable political question and that Zivotofsky lacked
standing. App. 28–39. The Court of Appeals for the District of
Columbia Circuit reversed on the standing issue, Zivotofsky v. Secretary of State, 444 F. 3d 614, 617–619 (2006), but
later affirmed the District Court’s political question
determination. 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 interpretation of the
statute is correct, and whether the statute is constitutional”—not
whether Jerusalem is, in fact, part of Israel. Zivotofsky v. Clinton , supra , at___ (slip op., at 7).

															On remand the Court of Appeals held the statute
unconstitutional. It determined that “the President exclusively
holds the power to determine whether to recognize a foreign
sovereign,” 725 F. 3d, at 214, and that “section 214(d) directly
contradicts a carefully considered exercise of the Executive
branch’s recognition power.” Id. , at 217.

															This Court again granted certiorari. 572
U. S. ___ (2014).

															II

															In considering claims of Presidential power
this Court refers to Justice Jackson’s familiar tripartite
framework from Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579 –638 (1952) (concurring opinion). The
framework divides exercises of Presidential power into three
categories: First, when “the President acts pursuant to an express
or implied authorization of Congress, his authority is at its
maximum, for it includes all that he possesses in his own right
plus all that Congress can delegate.” Id. , at 635. Second,
“in absence of either a congressional grant or denial of authority”
there is a “zone of twilight in which he and Congress may have
concurrent authority,” and where “congressional inertia,
indifference or quiescence may” invite the exercise of executive
power. Id. , at 637. Finally, when “the President takes
measures incompatible with the expressed or implied will of
Congress . . . he can rely only upon his own constitutional powers
minus any constitutional powers of Congress over the matter.” Ibid. To succeed in this third category, the President’s
asserted power must be both “exclusive” and “conclusive” on the
issue. Id., at 637–638.

															In this case the Secretary contends that §214(d)
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 “scrutinized with caution,” and he may
rely solely on powers the Constitution grants to him alone. Id. , at 638.

															To determine whether the President possesses the
exclusive power of recognition the Court examines the
Constitution’s text and structure, as well as precedent and history
bearing on the question.

															A

															Recognition is a “formal acknowledgement” that
a particular “entity possesses the qualifications for statehood” or
“that a particular regime is the effective government of a state.”
Restatement (Third) of Foreign Relations Law of the United States
§203, Comment a , p. 84 (1986). It may also involve the
determination of a state’s territorial bounds. See 2 M. Whiteman,
Digest of International Law §1, p. 1 (1963) (Whiteman) (“[S]tates
may recognize or decline to recognize territory as belonging to, or
under the sovereignty of, or having been acquired or lost by, other
states”). Recognition is often effected by an express “written or
oral declaration.” 1 J. Moore, Digest of International Law §27, p.
73 (1906) (Moore). It may also be implied—for example, by
concluding a bilateral treaty or by sending or receiving diplomatic
agents. Ibid .; I. Brownlie, Prin-ciples of Public
International Law 93 (7th ed. 2008) (Brownlie).

															Legal consequences follow formal recognition.
Recognized sovereigns may sue in United States courts, see Guaranty Trust Co. v. United States , 304 U. S. 126,
137 (1938) , and may benefit from sovereign immunity when they are
sued, see National City Bank of N. Y. v. Republic of
China , 348 U. S. 356 –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
–303 (1918). Recognition at international law, furthermore, is a
precondition of regular diplomatic relations. 1 Moore §27, at 72.
Recognition is thus “useful, even necessary,” to the existence of a
state. Ibid. Despite the importance of the recognition power
in foreign relations, the Constitution does not use the term
“recognition,” either in Article II or elsewhere. The Secretary
asserts that the President exercises the recognition power based on
the Reception Clause, which directs that the President “shall
receive Ambassadors and other public Ministers.” Art. II, §3. As
Zivotofsky notes, the Reception Clause received little attention at
the Constitutional Convention. See Reinstein, Recognition: A Case
Study on the Original Understanding of Executive Power, 45 U. Rich.
L. Rev. 801, 860–862 (2011). In fact, during the ratification
debates, Alexander Hamilton claimed that the power to receive
ambassadors was “more a matter of dignity than of authority,” a
ministerial duty largely “without consequence.” The Federalist No.
69, p. 420 (C. Rossiter ed. 1961).

															At the time of the founding, however, prominent
international scholars suggested that receiving an ambassador was
tantamount to recognizing the sovereignty of the sending state. See
E. de Vattel, The Law of Nations §78, p. 461 (1758) (J. Chitty ed.
1853) (“[E]very state, truly possessed of sovereignty, has a right
to send ambassadors” and “to contest their right in this instance”
is equivalent to “contesting their sovereign dignity”); see also 2
C. van Bynkershoek, On Questions of Public Law 156–157 (1737) (T.
Frank ed. 1930) (“Among writers on public law it is usually agreed
that only a sovereign power has a right to send ambassadors”); 2 H.
Grotius, On the Law of War and Peace 440–441 (1625) (F. Kelsey ed.
1925) (discussing the duty to admit ambassadors of sovereign
powers). It is a logical and proper inference, then, that a Clause
directing the President alone to receive ambassadors would be
understood to acknowledge his power to recognize other nations.

															This in fact occurred early in the Nation’s
history when President Washington recognized the French
Revolutionary Government by receiving its ambassador. See A.
Hamilton, Pacificus No. 1, in The Letters of Pacificus and
Helvidius 5, 13–14 (1845) (reprint 1976) (President “acknowledged
the republic of France, by the reception of its minister”). After
this incident the import of the Reception Clause became
clear—causing Hamilton to change his earlier view. He wrote that
the Reception Clause “includes th[e power] of judging, in the case
of a revolution of government in a foreign country, whether the new
rulers are competent organs of the national will, and ought to be
recognised, or not.” See id. , at 12; see also 3 J. Story,
Commentaries on the Constitution of the United States §1560, p. 416
(1833) (“If the executive receives an ambassador, or other
minister, as the representative of a new nation . . . it is an
acknowledgment of the sovereign authority de facto of such
new nation, or party”). As a result, the Reception Clause provides
support, although not the sole authority, for the President’s power
to recognize other nations.

															The inference that the President exercises the
recognition power is further supported by his additional Article II
powers. It is for the President, “by and with the Advice and
Consent of the Senate,” to “make Treaties, provided two thirds of
the Senators present concur.” Art. II, §2, cl. 2. In addition, “he
shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors” as well as “other public
Ministers and Consuls.” Ibid. As a matter of constitutional structure, these
additional powers give the President control over recognition
decisions. At international law, recognition may be effected by
different means, but each means is dependent upon Presidential
power. In addition to receiving an ambassador, recognition may
occur on “the conclusion of a bilateral treaty,” or the “formal
initiation of diplomatic relations,” including the dispatch of an
ambassador. Brownlie 93; see also 1 Moore §27, at 73. The President
has the sole power to negotiate treaties, see United States v. Curtiss-Wright Export Corp. , 299 U. S. 304, 319 (1936) ,
and the Senate may not conclude or ratify a treaty without
Presidential action. The President, too, nominates the Nation’s
ambassadors and dispatches other diplomatic agents. Congress may
not send an ambassador without his involvement. Beyond that, the
President himself has the power to open diplomatic channels simply
by engaging in direct 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 President, the Court
need not consider whether or to what extent the Vesting Clause,
which provides that the “executive Power” shall be vested in the
President, provides further support for the President’s action
here. Art. II, §1, cl. 1.

															The text and structure of the Constitution grant
the President the power to recognize foreign nations and
governments. The question then becomes whether that power is
exclusive. The various ways in which the President may unilaterally
effect recognition—and the lack of any similar power vested in
Congress—suggest that it is. So, too, do functional considerations.
Put simply, the Nation must have a single policy regarding which
governments are legitimate in the eyes of the United States and
which are not. Foreign countries need to know, before entering into
diplomatic relations or commerce with the United States, whether
their ambassadors will be received; whether their officials will be
immune from suit in federal court; and whether they may initiate
lawsuits here to vindicate their rights. These assurances cannot be
equivocal.

															Recognition is a topic on which the Nation must
“ ‘speak . . . with one voice.’ ” American
Ins. Assn. v. Garamendi , 539 U. S. 396, 424 (2003)
(quoting Crosby v. National Foreign Trade Council ,
530 U. S. 363, 381 (2000) ). That voice must be the President’s.
Between the two political branches, only the Executive has the
characteristic of unity at all times. And with unity comes the
ability to exercise, to a greater degree, “[d]ecision, activity,
secrecy, and dispatch.” The Federalist No. 70, p. 424 (A.
Hamilton). The President is capable, in ways Congress is not, of
engaging in the delicate and often secret diplomatic contacts that
may lead to a decision on recognition. See, e.g., United
States v. Pink , 315 U. S. 203, 229 (1942) . He is
also better positioned to take the decisive, unequivocal action
necessary to recognize other states at international law. 1
Oppenheim’s International Law §50, p. 169 (R. Jennings & A.
Watts eds., 9th ed. 1992) (act of recognition must “leave no doubt
as to the intention to grant it”). These qualities explain why the
Framers listed the traditional avenues of recognition—receiving
ambassadors, making treaties, and sending ambassadors—as among the
President’s Article II powers.

															As described in more detail below, the President
since the founding has exercised this unilateral power to recognize
new states—and the Court has endorsed the practice. See Banco
Nacional de Cuba v. Sabbatino , 376 U. S. 398, 410 (1964)
; Pink , supra, at 229; Williams v. Suffolk
Ins. Co. , 13 Pet. 415, 420 (1839). Texts and treatises on
international law treat the President’s word as the final word on
recognition. See, e.g. , Restatement (Third) of Foreign
Relations Law §204, at 89 (“Under the Constitution of the United
States the President has exclusive authority to recognize or not to
recognize a foreign state or government”); see also L. Henkin,
Foreign Affairs and the U. S. Constitution 43 (2d ed. 1996) (“It is
no longer questioned that the President does not merely perform the
ceremony of receiving foreign ambassadors but also determines
whether the United States should recognize or refuse to recognize a
foreign government”). In light of this 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 determine whether to recognize a foreign
sovereign”); Zivotofsky , 571 F. 3d, at 1231 (“That this
power belongs solely to the President has been clear from the
earliest days of the Republic”); id., at 1240 (Edwards, J.,
concurring) (“The Executive has exclusive and unreviewable
authority to recognize foreign sovereigns”).

															It remains true, of course, that many decisions
affecting foreign relations—including decisions that may determine
the course of our relations with recognized countries—require
congressional action. Congress may “regulate Commerce with foreign
Nations,” “establish an uniform Rule of Naturalization,” “define
and punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations,” “declare War,” “grant Letters
of Marque and Reprisal,” and “make Rules for the Government and
Regulation of the land and naval Forces.” U. S. Const., Art. I, §8.
In addition, the President cannot make a treaty or appoint an
ambassador without the approval of the Senate. Art. II, §2, cl. 2.
The President, furthermore, could not build an American Embassy
abroad without congressional appropriation of the necessary funds.
Art. I, §8, cl. 1. Under basic separation-of-powers
principles, it is for the Congress to enact the laws, including
“all Laws which shall be necessary and proper for carrying into
Execution” the powers of the Federal Government. §8,
cl. 18.

															In foreign affairs, as in the domestic realm,
the Constitution “enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.” Youngstown , 343
U. S., at 635 (Jackson, J., concurring). Although the
President alone effects the formal act of recognition, Congress’
powers, and its central role in making laws, give it substantial
authority regarding many of the policy determinations that precede
and follow the act of recognition itself. If Congress disagrees
with the President’s recognition policy, there may be consequences.
Formal recognition may seem a hollow act if it is not accompanied
by the dispatch of an ambassador, the easing of trade restrictions,
and the conclusion of treaties. And those decisions require action
by the Senate or the whole Congress.

															In practice, then, the President’s recognition
determination is just one part of a political process that may
require Congress to make laws. The President’s exclusive
recognition power encompasses the authority to acknowledge, in a
formal sense, the legitimacy of other states and governments,
including their territorial bounds. Albeit limited, the exclusive
recognition power is essential to the conduct of Presidential
duties. The formal act of recognition is an executive power that
Congress may not qualify. If the President is to be effective in
negotiations over a formal recognition determination, it must be
evident to his counterparts abroad that he speaks for the Nation on
that precise question.

															A clear rule that the formal power to recognize
a foreign government subsists in the President therefore serves a
necessary purpose in diplomatic relations. All this, of course,
underscores that Congress has an important role in other aspects of
foreign policy, and the President may be bound by any number of
laws Congress enacts. In this way ambition counters ambition,
ensuring that the democratic will of the people is observed and
respected in foreign affairs as in the domestic realm. See The
Federalist No. 51, p. 322 (J. Madison).

															B

															No single precedent resolves the question
whether the President has exclusive recognition authority and, if
so, how far that power extends. In part that is because, until
today, the political branches have resolved their disputes over
questions of recognition. The relevant cases, though providing
important instruction, address the division of recognition power
between the Federal Government and the States, see, e.g., Pink , 315 U. S. 203 , or between the courts and the
political branches, see, e.g., Banco Nacional de Cuba , 376
U. S., at 410—not between the President and Congress. As the
parties acknowledge, some isolated statements in those cases lend
support to the position that Congress has a role in the recognition
process. In the end, however, a fair reading of the cases shows
that the President’s role in the recognition process is both
central and exclusive.

															During the administration of President Van
Buren, in a case involving a dispute over the status of the
Falkland Islands, the Court noted that “when the executive branch
of the government” assumes “a fact in regard to the sovereignty of
any island or country, it is conclusive on the judicial
department.” Williams , 13 Pet., at 420. Once the President
has made his determination, it “is enough to know, that in the
exercise of his constitutional functions, he has decided the
question. Having done this under the responsibilities which belong
to him, it is obligatory on the people and government of the
Union.” Ibid. Later, during the 1930’s and 1940’s, the Court
addressed issues surrounding President Roosevelt’s decision to
recognize the Soviet Government of Russia. In United States v. Belmont, 301 U. S. 324 (1937) , and Pink , 315
U. S. 203 , New York state courts declined to give full effect
to the terms of executive agreements the President had concluded in
negotiations over recognition of the Soviet regime. In particular
the state courts, based on New York public policy, did not treat
assets that had been seized by the Soviet Government as property of
Russia and declined to turn those assets over to the United States.
The Court stated that it “may not be doubted” that “recognition,
establishment of diplomatic relations, . . . and agreements with
respect thereto” are “within the competence of the President.” Belmont , 301 U. S., at 330. In these matters, “the Executive
ha[s] authority to speak as the sole organ of th[e] government.” Ibid. The Court added that the President’s authority “is not
limited to a determination of the government to be recognized. It
includes the power to determine the policy which is to govern the
question of recognition.” Pink , supra , at 229; see
also Guaranty Trust Co. , 304 U. S., at 137–138 (The
“political department[’s] . . . action in recognizing a
foreign government and in receiving its diplomatic representatives
is conclusive on all domestic courts”). Thus, New York state courts
were required to respect the executive agreements.

															It is true, of course, that Belmont and Pink are not direct holdings that the recognition power is
exclusive. Those cases considered the validity of executive
agreements, not the initial act of recognition. The President’s
determination in those cases did not contradict an Act of Congress.
And the primary issue was whether the executive agreements could
supersede state law. Still, the language in Pink and Belmont , which confirms the President’s competence to
determine questions of recognition, is strong support for the
conclusion that it is for the President alone to determine which
foreign governments are legitimate. Banco Nacional de Cuba contains even
stronger statements regarding the President’s authority over
recognition. There, the status of Cuba’s Government and its acts as
a sovereign were at issue. As the Court explained, “Political
recognition is exclusively a function of the Executive.” 376 U. S.,
at 410. Because the Executive had recognized the Cuban Government,
the Court held that it should be treated as sovereign and could
benefit from the “act of state” doctrine. See also Baker v. Carr , 369 U. S. 186, 213 (1962) (“[I]t is the executive that
determines a person’s status as representative of a foreign
government”); National City Bank of N. Y. , 348 U. S.,
at 358 (“The status of the Republic of China in our courts is a
matter for determination by the Executive and is outside the
competence of this Court”). As these cases illustrate, the Court
has long considered recognition to be the exclusive prerogative of
the Executive.

															The Secretary now urges the Court to define the
executive power over foreign relations in even broader terms. He
contends that under the Court’s precedent the President has
“exclusive authority to conduct diplomatic relations,” along with
“the bulk of foreign-affairs powers.” Brief for Respondent 18, 16.
In support of his submission that the President has broad,
undefined powers over foreign affairs, the Secretary quotes United States v. Curtiss-Wright Export Corp. , which
described the President as “the sole organ of the federal
government in the field of international relations.” 299 U. S., at
320. This Court declines to acknowledge that unbounded power. A
formulation broader than the rule that the President alone
determines what nations to formally recognize as legitimate—and
that he consequently controls his statements on matters of
recognition—presents different issues and is unnecessary to the
resolution of this case.

															The Curtiss-Wright case does not extend
so far as the Secretary suggests. In Curtiss-Wright , the
Court considered whether a congressional delegation of power to the
President was constitutional. Congress had passed a joint
resolution giving the President the discretion to prohibit arms
sales to certain militant powers in South America. The resolution
provided criminal penalties for violation of those orders. Id., at 311–312. The Court held that the delegation was
constitutional, reasoning that Congress may grant the President
substantial authority and discretion in the field of foreign
affairs. Id., at 315–329. Describing why such broad
delegation may be appropriate, the opinion stated:

															“In this vast external realm, with its
important, complicated, delicate and manifold problems, the
President alone has the power to speak or listen as a
representative of the nation. He makes treaties with the
advice and consent of the Senate; but he alone negotiates. Into the
field of negotiation the Senate cannot intrude; and Congress itself
is powerless to invade it. As Marshall said in his great argument
of March 7, 1800, in the House of Representatives, ‘The President
is the sole organ of the nation in its external relations, and its
sole representative with foreign nations.’ [10 Annals of Cong.]
613. ” Id. , at 319.

															This description of the President’s exclusive
power was not necessary to the holding of Curtiss-Wright —which, after all, dealt with congressionally
authorized action, not a unilateral Presidential determination.
Indeed, Curtiss-Wright did not hold that the President is
free from Congress’ lawmaking power in the field of
internationalrelations. 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
interdependent, it is essential the congressional role in foreign
affairs be understood and respected. For it is Congress that makes
laws, and in countless ways its laws will and should shape the
Nation’s course. The Executive is not free from the ordinary
controls and checks of Congress merely because foreign affairs are
at issue. See, e.g. , Medellín v. Texas , 552 U.
S. 491 –532 (2008); Youngstown , 343 U. S., at 589; Little v. Barreme , 2 Cranch 170, 177–179 (1804);
Glennon, Two Views of Presidential Foreign Affairs Power: Little v. Barreme or Curtiss-Wright ? 13 Yale
J. Int’l L. 5, 19–20 (1988); cf. Dames & Moore v. Regan , 453 U. S. 654 –681 (1981). It is not for the
President alone to determine the whole content of the Nation’s
foreign policy.

															That said, judicial precedent and historical
practice teach that it is for the President alone to make the
specific decision of what foreign power he will recognize as
legitimate, both for the Nation as a whole and for the purpose of
making his own position clear within the context of recognition in
discussions and negotiations with foreign nations. Recognition is
an act with immediate and powerful significance for international
relations, so the President’s position must be clear. Congress
cannot require him to contradict his own statement regarding a
determination of formal recognition.

															Zivotofsky’s contrary arguments are
unconvincing. The decisions he relies upon are largely inapposite.
This Court’s cases do not hold that the recognition power is
shared. Jones v. United States , 137 U. S. 202 (1890)
, and Boumediene v. Bush , 553 U. S. 723 (2008) , each
addressed the status of territories controlled or acquired by the
United States—not whether a province ought to be recognized as part
of a foreign country. See also 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 needful Rules and Regulations respecting the
Territory or other Property belonging to the United States”). Other
cases describing a shared power address the recognition of Indian
tribes—which is, similarly, a distinct issue from the recognition
of foreign countries. See Cherokee Nation v. Georgia ,
5 Pet. 1 (1831).

															To be sure, the Court has mentioned both of the
political branches in discussing international recognition, but it
has done so primarily in affirming that the Judiciary is not
responsible for recognizing foreign nations. See Oetjen , 246
U. S., at 302 (“ ‘Who is the sovereign, de jure or de facto , of a territory is not
a judicial, but is a political question, the determination of which
by the legislative and executive departments of any government
conclusively binds the judges’ ” (quoting Jones , supra, at 212)); United States v. Palmer , 3
Wheat. 610, 643 (1818) (“[T]he courts of the union must view [a]
newly constituted government as it is viewed by the legislative and
executive departments of the government of the United States”).
This is consistent with the fact that Congress, in the ordinary
course, does support the President’s recognition policy, for
instance by confirming an ambassador to the recognized foreign
government. Those cases do not cast doubt on the view that the
Executive Branch determines whether the United States will
recognize foreign states and governments and their territorial
bounds.

															C

															Having examined the Constitution’s text and
this Court’s precedent, it is appropriate to turn to accepted
understandings and practice. In separation-of-powers cases this
Court has often “put significant weight upon historical practice.” NLRB v. Noel Canning , 573 U. S. ___, ___ (2014)
(slip op., at 6) (emphasis deleted). Here, history is not all on
one side, but on balance it provides strong support for the
conclusion that the recognition power is the President’s alone. As
Zivotofsky argues, certain historical incidents can be interpreted
to support the position that recognition is a shared power. But the
weight of historical evidence supports the opposite view, which is
that the formal determination of recognition is a power to be
exercised only by the President.

															The briefs of the parties and amici ,
which have been of considerable assistance to the Court, give a
more complete account of the relevant history, as do the works of
scholars in this field. See, e.g., Brief for Respondent
26–39; Brief for Petitioner 34–57; Brief for American Jewish
Committee as Amicus Curiae 6–24; J. Goebel, The Recognition
Policy of the United States 97–170 (1915) (Goebel); 1 Moore
§§28–58, 74–164; Reinstein, Is the President’s Recognition Power
Exclusive? 86 Temp. L. Rev. 1, 3–50 (2013). But even a brief survey
of the major historical examples, with an emphasis on those said to
favor Zivotofsky, establishes no more than that some Presidents
have chosen to cooperate with Congress, not that Congress itself
has exercised the recognition power.

															From the first Administration forward, the
President has claimed unilateral authority to recognize foreign
sovereigns. For the most part, Congress has acquiesced in the
Executive’s exercise of the recognition power. On occasion, the
President has chosen, as may often be prudent, to consult and
coordinate with Congress. As Judge Tatel noted in this case,
however, “the most striking thing” about the history of recognition
“is what is absent from it: a situation like this one,” where
Congress has enacted a statute contrary to the President’s formal
and considered statement concerning recognition. 725 F. 3d, at
221 (concurring opinion).

															The first debate over the recognition power
arose in 1793, after France had been torn by revolution. See
Prakash & Ramsey, The Executive Power over Foreign Affairs, 111
Yale L. J. 231, 312 (2001). Once the Revolutionary Government was
established, Secretary of State Jefferson and President Washington,
without consulting Congress, authorized the American Ambassador to
resume relations with the new regime. See Letter to Gouverneur
Morris (Mar. 12, 1793), in 25 Papers of Thomas Jefferson 367,
367–368 (J. Catanzariti ed. 1992); Goebel 99–104. Soon thereafter,
the new French Government proposed to send an ambassador, Citizen
Genet, to the United States. See id., at 105. Members of the
President’s Cabinet agreed that receiving Genet would be a binding
and public act of recognition. See Opinion on the Treaties with
France (Apr. 28, 1793), in 25 Papers of Thomas Jefferson, at 608,
612 (“The reception of the Minister at all . . . is an
ackno[w]le[d]gement of the legitimacy of their government”); see
also Letter from A. Hamilton to G. Washington (Cabinet Paper) (Apr.
1793), in 4 Works of Alexander Hamilton 369, 369–396 (H. Lodge ed.
1904). They 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 with France (Apr. 19,
1793), in 25 Papers of Thomas Jefferson, at 570. Congress expressed
no disagreement with this position, and Genet’s reception marked
the Nation’s first act of recognition—one made by the President
alone. See Prakash, supra , at 312–313.

															The recognition power again became relevant when
yet another revolution took place—this time, in South America, as
several colonies rose against Spain. In 1818, Speakerof 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’ ” topresent-day Argentina. 32 Annals of
Cong. 1500 (1818). President Monroe, however, did not share that
view. Although Clay gave “one of the most remarkable speeches of
his career,” his proposed bill was defeated. Goebel 123; 32
Annals of Cong. 1655. That action has been attributed, in part, to
the fact that Congress agreed the recognition power rested solely
with the President. Goebel 124; see, e.g., 32 Annals of
Cong. 1570 (statement of Rep. Alexander Smyth) (“[T]he
acknowledgment of the independence of a new Power is an exercise of
Executive authority; consequently, for Congress to direct the
Executive how he shall exercise this power, is an act of
usurpation”). Four years later, after the President had decided to
recognize the South American republics, Congress did pass a
resolution, on his request, appropriating funds for “such missions
to the independent nations on the American continent, as the
President of the United States may deem proper.” Act of May 4,
1822, ch. 52, 3Stat. 678.

															A decade later, President Jackson faced a
recognition crisis over Texas. In 1835, Texas rebelled against
Mexico and formed its own government. See Goebel 144–147. But the
President feared that recognizing the new government could ignite a
war. See A. Jackson, To the Senate and House of Representatives of
the United States (Dec. 21, 1836), in 3 Messages and Papers of the
Presidents 265, 266–267 (J. Richardson ed. 1899). After Congress
urged him to recognize Texas, see Cong. Globe, 24th Cong., 1st
Sess., 453 (1836); H. R. Rep. No. 854, 24th Cong., 1st Sess.
(1836), the President delivered a message to the Legislature. He
concluded there had not been a “deliberate inquiry” into whether
the President or Congress possessed the recognition power. See A.
Jackson, in 3 Messages and Papers of the Presidents, at 267. He
stated, however, “on the ground of expediency, I am disposed to
concur” with Congress’ preference regarding Texas. Ibid . In
response Congress appropriated funds for a “diplomatic agent to be
sent to the Republic of Texas, whenever the President of the United
States . . . shall deem it expedient to appoint such
minister.” Act of Mar. 3, 1837, 5Stat. 170. Thus, although he
cooperated with Congress, the President was left to execute the
formal act of recognition.

															President Lincoln, too, sought to coordinate
with Congress when he requested support for his recognition of
Liberia and Haiti. In his first annual message to Congress he said
he could see no reason “why we should persevere longer in
withholding our recognition of the independence and sovereignty of
Hayti and Liberia.” Lincoln’s First Annual Message to Congress
(Dec. 3, 1861), in 6 Messages and Papers of the Presidents 44, 47.
Nonetheless, he was “[u]nwilling” to “inaugurate a novel policy in
regard to them without the approbation of Congress.” Ibid. In response Congress concurred in the President’s recognition
determination and enacted a law appropriating funds to appoint
diplomatic representatives to the two countries—leaving, as usual,
the actual dispatch of ambassadors and formal statement of
recognition to the President. Act of June 5, 1862, 12Stat. 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 was raging in
Cuba. President McKinley determined to ask Congress for
authorization to send armed forces to Cuba to help quell the
violence. See 31 Cong. Rec. 3699–3702 (1898). Although McKinley
thought Spain was to blame for the strife, he opposed recognizing
either Cuba or its insurgent government. Id. , at 3701. At
first, the House proposed a resolution consistent with McKinley’s
wishes. Id. , at 3810. The Senate countered with a resolution
that authorized the use of force but that did recognize both Cuban
independence and the insurgent government. Id. , at 3993.
When the Senate’s version reached the House, the House again
rejected the language recognizing Cuban independence. Id. ,
at 4017. The resolution went to Conference, which, after debate,
reached a compromise. See Reinstein, 86 Temp. L. Rev., at
40–41. The final resolution stated “the people of the Island of
Cuba are, and of right ought to be, free and independent,” but made
no mention of recognizing a new Cuban Government. Act of Apr. 20,
1898, 30Stat. 738. Accepting the compromise, the President signed
the joint resolution. See Reinstein, 86 Temp. L. Rev., at
41.

															For the next 80 years, “[P]residents
consistently recognized new states and governments without any
serious opposition from, or activity in, Congress.” Ibid. ;
see 2 Whiteman §§6–60, at 133–242 (detailing over 50 recognition
decisions made by the Executive). The next debate over recognition
did not occur until the late 1970’s. It concerned China.

															President Carter recognized the People’s
Republic of China (PRC) as the government of China, and
derecognized the Republic of China, located on Taiwan. See S. Kan,
Cong. Research Serv., China/Taiwan: Evolution of the “One China”
Policy—Key Statements from Washington, Beijing, and Taipei 1, 10
(Oct. 10, 2014). As to the status of Taiwan, the President
“acknowledge[d] the Chinese position” that “Taiwan is part of
China,” id., at 39 (text of U. S.–PRC Joint Communique on
the Establishment of Diplomatic Relations (Jan. 1, 1979)), but he
did not accept that claim. The President proposed a new law
defining how the United States would conduct business with Taiwan.
See Hearings on Taiwan Legislation before the House Committee on
Foreign Affairs, 96th Cong., 1st Sess., 2–6 (1979) (statement of
Warren Christopher, Dep-uty Secretary of State). After extensive
revisions, Congress passed, and the President signed, the Taiwan
Relations Act, 93Stat. 14 (1979) (codified as amended at 22 U. S.
C. §§3301–3316). The Act (in a simplified summary) treated Taiwan
as if it were a legally distinct entity from China—an entity with
which the United States intended to maintain strong ties. See, e.g. , §§3301, 3303(a), (b)(1), (b)(7).

															Throughout the legislative process, however, no
one raised a serious question regarding the President’s exclusive
authority to recognize the PRC—or to decline to grant formal
recognition to Taiwan. See, e.g. , 125 Cong. Rec. 6709 (1979)
(statement of Sen. Jacob Javits) (“Neither bill [proposed by either
Chamber] sought to reestablish official relations between the
United States and the Republic of China on Taiwan; Congress
. . . does not have the 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 appropriate in light of that decision.

															This history confirms the Court’s conclusion in
the instant case that the power to recognize or decline to
recognize a foreign state and its territorial bounds resides in the
President alone. For the most part, Congress has respected the
Executive’s policies and positions as to formal recognition. At
times, Congress itself has defended the President’s constitutional
prerogative. Over the last 100 years, there has been scarcely any
debate over the President’s power to recognize foreign states. In
this respect the Legislature, in the narrow context of recognition,
on balance has acknowledged the importance of speaking “with one
voice.” Crosby , 530 U. S., at 381. The weight of
historical evidence indicates Congress has accepted that the power
to recognize foreign states and governments and their territorial
bounds is exclusive to the Presidency.

															III

															As the power to recognize foreign states
resides in the President alone, the question becomes whether
§214(d) infringes on the Executive’s consistent decision to
withhold recognition with respect to Jerusalem. See Nixon v. Administrator of General Services , 433 U. S. 425, 443 (1977)
(action unlawful when it “prevents the Executive Branch from
accomplishing its constitutionally assigned functions”).

															Section 214(d) requires that, in a passport or
consular report of birth abroad, “the Secretary shall, upon the
request of the citizen or the citizen’s legal guardian, record the
place of birth as Israel” for a “United States citizen born in the
city of Jerusalem.” 116Stat. 1366. That is, §214(d) requires the
President, through the Secretary, to identify citizens born in
Jerusalem who so request as being born in Israel. But according to
the President, those citizens were not born in Israel. As a matter
of United States policy, neither Israel nor any other country is
acknowledged as having sovereignty over Jerusalem. In this way,
§214(d) “directly contradicts” the “carefully calibrated and
longstanding Executive branch policy of neutrality toward
Jerusalem.” 725 F. 3d, at 217, 216.

															If the power over recognition is to mean
anything, it must mean that the President not only makes the
initial, formal recognition determination but also that he may
maintain that determination in his and his agent’s statements. This
conclusion is a matter of both common sense and necessity. If
Congress could command the President to state a recognition
position inconsistent with his own, Congress could override the
President’s recognition determination. Under international law,
recognition may be effected by “written or oral declaration of the
recognizing state.” 1 Moore §27, at 73. In addition an act of
recognition must “leave no doubt as to the intention to grant it.”
1 Oppenheim’s International Law §50, at 169. Thus, if Congress
could alter the President’s statements on matters of recognition or
force him to contradict them, Congress in effect would exercise the
recognition power.

															As Justice Jackson wrote in Youngstown ,
when a Presidential power is “exclusive,” it “disabl[es] the
Congress from acting upon the subject.” 343 U. S., at 637–638
(concurring opinion). Here, the subject is quite narrow: The
Executive’s exclusive power extends no further than his formal
recognition determination. But as to that determination, Congress
may not enact a law that directly contradicts it. This is not to
say Congress may not express its disagreement with the President in
myriad ways. For example, it may enact an embargo, decline to
confirm an ambassador, or even declare war. But none of these acts
would alter the President’s recognition decision.

															If Congress may not pass a law, speaking in its
own voice, that effects formal recognition, then it follows that it
may not force the President himself to contradict his earlier
statement. That congressional command would not only prevent the
Nation from speaking with one voice but also prevent the Executive
itself from doing so in conducting foreign relations.

															Although the statement required by §214(d) would
not itself constitute a formal act of recognition, it is a mandate
that the Executive contradict his prior recognition determination
in an official document issued by the Secretary of State. See Urtetiqui v. D’Arcy , 9 Pet. 692, 699 (1835) (a
passport “from its nature and object, is addressed to foreign
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 longstanding treatment
of a passport’s place-of-birth section as an official executive
statement implicating recognition. See 725 F. 3d, at 224
(Tatel, J., concurring). The Secretary’s position on this point has
been consistent: He will not place information in the
place-of-birth section of a passport that contradicts the
President’s recognition policy. See 7 FAM §1383. If a citizen
objects to the country listed as sovereign over his place of birth,
then the Secretary will accommodate him by listing the city or town
of birth rather than the country. See id., §1383.6. But the
Secretary will not list a sovereign that contradicts the
President’s recognition policy in a passport. Thus, the Secretary
will not list “Israel” in a passport as the country containing
Jerusalem.

															The flaw in §214(d) is further underscored by
the undoubted fact that that the purpose of the statute was to
infringe on the recognition power—a power the Court now holds is
the sole prerogative of the President. The statute is titled
“United States Policy with Respect to Jerusalem as the Capital of
Israel.” §214, 116Stat. 1365. The House Conference Report
proclaimed that §214 “contains four provisions related to the
recognition of Jerusalem as Israel’s capital.” H. R. Conf. Rep. No.
107–671, p. 123 (2002). And, indeed, observers interpreted §214 as
altering United States policy regarding Jerusalem—which led to
protests across the region. See supra , at 4. From the face
of §214, from the legislative history, and from its reception, it
is clear that Congress wanted to express its displeasure with the
President’s policy by, among other things, commanding the Executive
to contradict his own, earlier stated position on Jerusalem. This
Congress may not do.

															It is true, as Zivotofsky notes, that Congress
has substantial authority over passports. See Haig v. Agee , 453 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 proceeded on the assumption that Congress must authorize the
grounds on which passports may be approved or denied. See Zemel , supra , at 7–13; Haig , supra , at
289–306. This is consistent with the extensive lawmaking power the
Constitution vests in Congress over the Nation’s foreign
affairs.

															The problem with §214(d), however, lies in how
Congress exercised its authority over passports. It was an improper
act for Congress to “aggrandiz[e] its power at the expense of
another branch” by requiring the President to contradict an earlier
recognition determination in an official document issued by the
Executive Branch. Freytag v. Commissioner , 501 U. S.
868, 878 (1991) . To allow Congress to control the President’s
communication in the context of a formal recognition determination
is to allow Congress to exercise that exclusive power itself. As a
result, the statute is unconstitutional.

															*  *  *

															In holding §214(d) invalid the Court does not
question the substantial powers of Congress over foreign affairs in
general or passports in particular. This case is confined solely to
the exclusive power of the President to control recognition
determinations, including formal statements by the Executive Branch
acknowledging the legitimacy of a state or government and its
territorial bounds. Congress cannot command the President to
contradict an earlier recognition determination in the issuance of
passports.

															The judgment of the Court of Appeals for the
District of Columbia Circuit is

															Affirmed. 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. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 13–628

															_________________

															MENACHEM BINYAMIN ZIVOTOFSKY, by his parents
and guardians, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER v. JOHN KERRY, SECRETARY OF STATE

															on writ of certiorari to the united states
court of appeals for the district of columbia circuit

															[June 8, 2015]

															Justice Scalia, with whom The Chief Justice
and Justice Alito join, dissenting.

															Before this country declared independence, the
law of England entrusted the King with the exclusive care of his
kingdom’s foreign affairs. The royal prerogative included the “sole
power of sending ambassadors to foreign states, and receiving them
at home,” the sole authority to “make treaties, leagues, and
alliances with foreign states and princes,” “the sole prerogative
of making war and peace,” and the “sole power of raising and
regulating fleets and armies.” 1 W. Blackstone, Commentaries *253,
*257, *262. The People of the United States had other ideas when
they organized our Government. They considered a sound structure of
balanced powers essential to the preservation of just government,
and international relations formed no exception to that
principle.

															The People therefore adopted a Constitution that
divides responsibility for the Nation’s foreign concerns between
the legislative and executive departments. The Constitution gave
the President the “executive Power,” authority to send and
responsibility to receive ambassadors, power to make treaties, and
command of the Army and Navy—though they qualified some of these
powers by requiring consent of the Senate. Art. II, §§1–3. At
the same time, they gave Congress powers over war, foreign
commerce, naturalization, and more. Art. I, §8. “Fully eleven
of the powers that Article I, §8 grants Congress deal in some way
with foreign affairs.” L. Tribe, American Constitutional Law,
§5–18, p. 965.

															This case arises out of a dispute between the
Executive and Legislative Branches about whether the United States
should treat Jerusalem as a part of Israel. The Constitution
contemplates that the political branches will make policy about the
territorial claims of foreign nations the same way they make policy
about other international matters: The President will exercise his
powers on the basis of his views, Congress its powers on the basis
of its views. That is just what has happened here.

															I

															The political branches of our Government agree
on the real-world fact that Israel controls the city of Jerusalem.
See Jerusalem Embassy Act of 1995, 109Stat. 398; Brief for
Respondent 3. They disagree, however, about how official documents
should record the birthplace of an American citizen born in
Jerusalem. The Executive does not accept any state’s claim to
sovereignty over Jerusalem, and it maintains that the birthplace
designation “Israel” would clash with this stance of neutrality.
But the National Legislature has enacted a statute that provides:
“For purposes of the registration of birth, certification of
nationality, or issuance of a passport of a United States citizen
born in the city of Jerusalem, the Secretary [of State] shall, upon
the request of the citizen or the citizen’s legal guardian, record
the place of birth as Israel.” Foreign Relations Authorization Act,
Fiscal Year 2003, §214(d), 116Stat. 1366. Menachem Zivotofsky’s
parents seek enforcement of this statutory right in the issuance of
their son’s passport and consular report of birth abroad. They
regard their son’s birthplace as a part of Israel and insist as “a
matter of conscience” that his Israeli nativity “not be erased”
from his identity documents. App. 26.

															Before turning to Presidential power under
Article II, I think it well to establish the statute’s basis in
congressional power under Article I. Congress’s power to “establish
an uniform Rule of Naturalization,” Art. I, §8, cl. 4,
enables it to grant American citizenship to someone born abroad. United States v. Wong Kim Ark , 169 U. S. 649
–703 (1898). The naturalization power also enables Congress to
furnish the people it makes citizens with papers verifying their
citizenship—say a consular report of birth abroad (which certifies
citizenship of an American born outside the United States) or a
passport (which certifies citizenship for purposes of international
travel). As the Necessary and Proper Clause confirms, every
congressional power “carries with it all those incidental powers
which are necessary to its complete and effectual execution.” Cohens v. Virginia , 6 Wheat. 264, 429 (1821). Even on
a miserly understanding of Congress’s incidental authority,
Congress may make grants of citizenship “effec-tual” by providing
for the issuance of certificates authenticating them.

															One would think that if Congress may grant
Zivotofsky a passport and a birth report, it may also require these
papers to record his birthplace as “Israel.” The birthplace
specification promotes the document’s 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
alternative ways to carry its powers into execution, Congress has
the “discretion” to choose the one it deems “most beneficial to the
people.” McCulloch v. Maryland , 4 Wheat. 316, 421
(1819). It thus has the right to decide that recording birthplaces
as “Israel” makes for better foreign policy. Or that regardless of
international politics, a passport or birth report should respect
its bearer’s conscientious belief that Jerusalem belongs to
Israel.

															No doubt congressional discretion in executing
legislative powers has its limits; Congress’s chosen approach must
be not only “necessary” to carrying its powers into execution, but
also “proper.” Congress thus may not transcend boundaries upon
legislative authority stated or implied elsewhere in the
Constitution. But as we shall see, §214(d) does not transgress any
such restriction.

															II

															The Court frames this case as a debate about
recognition. Recognition is a sovereign’s official acceptance of a
status under international law. A sovereign might recognize a
foreign entity as a state, a regime as the other state’s
government, a place as part of the other state’s territory, rebel
forces in the other state as a belligerent power, and so on. 2 M.
Whiteman, Digest of International Law §1 (1963) (hereinafter
Whiteman). President Truman recognized Israel as a state in 1948,
but Presidents have consistently declined to recognize Jerusalem as
a part of Israel’s (or any other state’s) sovereign territory.

															The Court holds that the Constitution makes the
President alone responsible for recognition and that §214(d)
invades this exclusive power. I agree that the Constitution empowers the President to extend recognition on behalf of
the United States, but I 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 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. 48Stat. 456. In the course of doing so, Congress
directed the President to “recognize the independence of the
Philippine Islands as a separate and self-governing nation” and to
“acknowledge the authority and control over the same of the
government instituted by the people thereof.” §10, id., at
463. Constitutional? And if Congress may control recognition when
exercising its power “to dispose of . . . the Territory
or other Property belonging to the United States,” Art. IV, §3,
cl. 2, why not when exercising other enumerated powers?
Neither text nor history nor precedent yields a clear answer to
these questions. Fortunately, I have no need to confront these
matters today—nor does the Court—because §214(d) plainly does not
concern recognition.

															Recognition is more than an announcement of a
policy. Like the ratification of an international agreement or the
termination of a treaty, it is a formal legal act with effects
under international law. It signifies acceptance of an
international status, and it makes a commitment to continued
acceptance of that status and respect for any attendant rights.
See, e.g., Convention on the Rights and Duties of States,
Art. 6, Dec. 26, 1933, 49Stat. 3100, T. S. No. 881. “Its legal
effect is to create an estoppel. By granting recognition, [states]
debar themselves from challenging in future whatever they have
previously acknowledged.” 1 G. Schwarzenberger, International Law
127 (3d ed. 1957). In order to extend recognition, a state must
perform an act that unequivocally manifests that intention.
Whiteman §3. That act can consist of an express conferral of
recognition, or one of a handful of acts that by international
custom imply recognition—chiefly, entering into a bilateral treaty,
and sending or receiving an ambassador. Ibid. To know all this is to realize at once that
§214(d) has nothing to do with recognition. Section 214(d) does not
require the Secretary to make a formal declaration about Israel’s
sovereignty over Jerusalem. And nobody suggests that international
custom infers acceptance of sovereignty from the birthplace
designation on a passport or birth report, as it does from
bilateral treaties or exchanges of ambassadors. Recognition would
preclude the United States (as a matter of international law) from
later contesting Israeli sovereignty over Jerusalem. But making a
notation in a passport or birth report does not encumber the
Republic with any international obligations. It leaves the Nation
free (so far as international law is concerned) to change its mind
in the future. That would be true even if the statute required all passports to list “Israel.” But in fact it requires only
those passports to list “Israel” for which the citizen (or his
guardian) requests “Israel”; all the rest, under the
Secretary’s policy, list “Jerusalem.” It is utterly impossible for
this deference to private requests to constitute an act that
unequivocally manifests an intention to grant recognition.

															Section 214(d) performs a more prosaic function
than extending recognition. Just as foreign countries care about
what our Government has to say about their borders, so too American
citizens often care about what our Government has to say about
their identities. Cf. Bowen v. Roy , 476 U. S.
693 (1986) . The State Department does not grant or deny
recognition in order to accommodate these individuals, but it does
make exceptions to its rules about how it records birthplaces.
Although normal protocol requires specifying the bearer’s country
of birth in his passport, Dept. of State, 7 Foreign Affairs Manual
(FAM) §1300, App. D, §1330(a) (2014), the State Department will, if
the bearer protests, specify the city of birth instead—so that an
Irish nationalist may have his birthplace recorded as “Belfast”
rather than “United Kingdom,” id., §1380(a). And although
normal protocol requires specifying the country with present sovereignty over the bearer’s place of birth, id., §1330(b),
a special exception allows a bearer born before 1948 in what was
then Palestine to have his birthplace listed as “Palestine,” id. , §1360(g) . Section 214(d) requires the State
Department to make a further accommodation. Even though the
Department normally refuses to specify a country that lacks
recognized sovereignty over the bearer’s birthplace, it must
suspend that policy upon the request of an American citizen born in
Jerusalem. Granting a request to specify “Israel” rather than
“Jerusalem” does not recognize Israel’s sovereignty over Jerusalem,
just as granting a request to specify “Belfast” rather than “United
Kingdom” does not derecognize the United Kingdom’s sovereignty over
Northern Ireland.

															The best indication that §214(d) does not
concern recognition comes from the State Department’s policies
concerning Taiwan. According to the Solicitor General, theUnited
States “acknowledges the Chinese position” that Taiwan is a part of
China, but “does not take a position” of its own on that issue.
Brief for Respondent 51–52. Even so, the State Department has for a
long time recorded the birthplace of a citizen born in Taiwan as
“China.” It indeed insisted on doing so until Congress
passed a law (on which §214(d) was modeled) giving citizens the
option to have their birthplaces recorded as “Taiwan.” See §132,
108Stat. 395, as amended by §1(r), 108Stat. 4302. The Solicitor
General explains that the designation “China” “involves a
geographic description, not an assertion that Taiwan is
. . . part of sovereign China.” Brief for Respondent
51–52. Quite so. Section 214(d) likewise calls for nothing beyond a
“geographic description”; it does not require the Executive even to
assert, never mind formally recognize, that Jerusalem is a part of
sovereign Israel. Since birthplace specifications in citizenship
documents are matters within Congress’s control, Congress may treat
Jerusalem as a part of Israel when regulating the recording of
birthplaces, even if the President does not do so when extending
recognition. Section 214(d), by the way, expressly directs the
Secretary to “record the place of birth as Israel” “ [f]or
purposes of the registration of birth, certification of
nationality, or issuance of a passport.” (Emphasis added.) And the
law bears the caption, “Record of Place of Birth as Israel for
Passport Purposes .” (Emphasis added.) Finding recognition in
this provision is rather like finding admission to the Union in a
provision that treats American Samoa as a State for purposes of a
federal highway safety program, 23 U. S. C. §401.

															III

															The Court complains that §214(d) requires the
Secretary of State to issue official documents implying that
Jerusalem is a part of Israel; that it appears in a section of the
statute bearing the title “United States Policy with Respect to
Jerusalem as the Capital of Israel”; and that foreign “observers
interpreted [it] as altering United States policy regarding
Jerusalem.” Ante, at 28. But these features do not show that
§214(d) recognizes Israel’s sovereignty over Jerusalem. They show
only that the law displays symbolic support for Israel’s
territorial claim. That symbolism may have tremendous significance
as a matter of international diplomacy, but it makes no difference
as a matter of constitutional law.

															Even if the Constitution gives the President
sole power to extend recognition, it does not give him sole power
to make all decisions relating to foreign disputes over
sovereignty. To the contrary, a fair reading of Article I allows
Congress to decide for itself how its laws should handle these
controversies. Read naturally, power to “regulate Commerce with
foreign Nations,” §8, cl. 3, includes power to regulate
imports from Gibraltar as British goods or as Spanish goods. Read
naturally, power to “regulate the Value . . . of foreign
Coin,” §8, cl. 5, includes power to honor (or not) currency
issued by Taiwan. And so on for the other enumerated powers. These
are not airy hypotheticals. A trade statute from 1800, for example,
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, 2Stat. 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, 52Stat. 1163; Whiteman §68.
The Taiwan Relations Act of 1979 grants Taiwan capacity to sue and
be sued, even though the United States does not recognize it as a
state. 22 U. S. C. §3303(b)(7). Section 214(d) continues
in the same tradition.

															The Constitution likewise does not give the
President exclusive power to determine which claims to statehood
and territory “are legitimate in the eyes of the United States,” ante, at 11. Congress may express its own views about these
matters by declaring war, restricting trade, denying foreign aid,
and much else besides. To take just one example, in 1991, Congress
responded to Iraq’s invasion of Kuwait by enacting a resolution
authorizing use of military force. 105Stat. 3. No doubt the
resolution reflected Congress’s views about the legitimacy of
Iraq’s territorial claim. The preamble referred to Iraq’s “illegal
occupation” and stated that “the international community has
demanded . . . that Kuwait’s independence and legitimate
government be restored.” Ibid. These statements are far more
categorical than the caption “United States Policy with Respect to
Jerusalem as the Capital of Israel.” Does it follow that the
authorization of the use of military force invaded the President’s
exclusive powers? Or that it would have done so had the President
recognized Iraqi sovereignty over Kuwait?

															History does not even support an exclusive
Presidential power to make what the Court calls “formal statements”
about “the legitimacy of a state or government and its territorial
bounds,” ante, at 29. For a long time, the Houses of
Congress have made formal statements announcing their own positions
on these issues, again without provoking constitutional objections.
A recent resolution expressed the House of Representatives’ “strong
support for the legitimate, democratically-elected Government of
Lebanon” and condemned an “illegitimate” and “unjustifiable”
insurrection by “the terrorist group Hizballah.” H. Res. 1194,
110th Cong, 2d Sess., 1, 4 (2008). An earlier enactment declared
“the sense of the Congress that . . . Tibet
. . . is an occupied country under the established
principles of international law” and that “Tibet’s true
representatives are the Dalai Lama and the Tibetan Government in
exile.” §355, 105Stat. 713 (1991). After Texas won independence
from Mexico, the Senate resolved that “the State of Texas having
established and maintained an independent Government,
. . . it is expedient and proper . . . that the
independent political existence of the said State be acknowledged
by the Government of the United States.” Cong. Globe, 24th Cong.,
2d Sess., 83 (1837); see id., at 270.

															In the final analysis, the Constitution may well
deny Congress power to recognize—the power to make an international
commitment accepting a foreign entity as a state, a regime as its
government, a place as a part ofits territory, and so on. But
whatever else §214(d) maydo, it plainly does not make (or require
the President to make) a commitment accepting Israel’s sovereignty
over Jerusalem.

															IV

															The Court does not try to argue that §214(d)
extends recognition; nor does it try to argue that the President
holds the exclusive power to make all nonrecognition decisions
relating to the status of Jerusalem. As just shown, these arguments
would be impossible to make with a straight face.

															The Court instead announces a rule that is
blatantly gerrymandered to the facts of this case. It concludes
that, in addition to the exclusive power to make the “formal
recognition determination,” the President holds an ancillary
exclusive power “to control . . . formal statements by
the Executive Branch acknowledging the legitimacy of a state or
government and its territorial bounds.” Ante, at 29. It
follows, the Court explains, that Congress may not “requir[e] the
President to contradict an earlier recognition determination in an
official document issued by the Executive Branch.” Ibid. So
requiring imports from Jerusalem to be taxed like goods from Israel
is fine, but requiring Customs to issue an official invoice to that
effect is not? Nonsense.

															Recognition is a type of legal act, not a type
of statement. It is a leap worthy of the Mad Hatter to go from
exclusive authority over making legal commitments about sovereignty
to exclusive authority over making statements or issuing documents
about national borders. The Court may as well jump from power over
issuing declaratory judgments to a monopoly on writing law-review
articles.

															No consistent or coherent theory supports the
Court’s decision. At times, the Court seems concerned with the
possibility of congressional interference with the President’s
ability to extend or withhold legal recognition. The Court
concedes, as it must, that the notation required by §214(d) “would
not itself constitute a formal act of recognition.” Ante, at
27. It still frets, however, that Congress could try to
regulate the President’s “statements” in a way that “override[s]
the President’s recognition determination.” Ibid. But “[t]he
circumstance, that . . . [a] power may be abused, is no
answer. All powers may be abused.” 2 J. Story, Commentaries on the
Constitution of theUnited States §921, p. 386 (1833). What matters
is whether this law interferes with the President’s ability
to withhold recognition. It would be comical to claim that it does.
The Court identifies no reason to believe that the United States—or
indeed any other country—uses the place-of-birth field in passports
and birth reports as a forum for performing the act of recognition.
That is why nobody thinks the United States withdraws recognition
from Canada when it accommodates a Quebec nationalist’s request to
have his birthplace recorded as “Montreal.”

															To the extent doubts linger about whether the
United States recognizes Israel’s sovereignty over Jerusalem,
§214(d) leaves the President free to dispel them by issuing a
disclaimer of intent to recognize. A disclaimer always suffices to
prevent an act from effecting recognition. Restatement (Second) of
Foreign Relations Law of the United States §104(1) (1962). Recall
that an earlier law grants citizens born in Taiwan the right to
have their birthplaces recorded as “Taiwan.” The State Department
has complied with the law, but states in its Foreign Affairs
Manual: “The United States does not officially recognize Taiwan as
a ‘state’ or ‘country,’ although passport issuing officers may
enter ‘Taiwan’ as a place of birth.” 7 FAM §1300, App. D,
§1340(d)(6). Nothing stops a similar disclaimer here.

															At other times, the Court seems concerned with
Congress’s failure to give effect to a recognition decision that
the President has already made. The Court protests, for instance,
that §214(d) “directly contradicts” the President’s refusal to
recognize Israel’s sovereignty over Jerusalem. Ante, at 27.
But even if the Constitution empowers the President alone to extend
recognition, it nowhere obliges Congress to align its laws with the
President’s recognition decisions. Because the President and
Congress are “perfectly co-ordinate by the terms of their common
commission,” The Federalist No. 49, p. 314 (C. Rossiter ed. 1961)
(Madison), the President’s use of the recognition power does not
constrain Congress’s use of its legislative powers.

															Congress has legislated without regard to
recognition for a long time and in a range of settings. For
example, responding in 1817 and 1818 to revolutions in Latin
America, Congress amended federal neutrality laws—which originally
prohibited private military action for or against recognized states—to prohibit private hostilities against unrecognized states too. ch. 58, 3Stat. 370; ch. 88, 3Stat. 447; see The
Three Friends , 166 U. S. 1 –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), 43Stat. 161 (1924). Federal law today prohibits murdering a
foreign government’s officials, 18 U. S. C. §1116,
counterfeiting a foreign government’s bonds, §478, and using
American vessels to smuggle goods in violation of a foreign
government’s laws, §546—all “irrespective of recognition by the
United States,” §§11, 1116. Just as Congress may legislate
independently of recognition in all of those areas, so too may it
legislate independently of recognition when regulating the
recording of birthplaces.

															The Court elsewhere objects that §214(d)
interferes with the autonomy and unity of the Executive Branch,
setting the branch against itself. The Court suggests, for
instance, that the law prevents the President from maintaining his
neutrality about Jerusalem in “his and his agent’s statements.” Ante, at 26. That is of no constitutional significance. As
just shown, Congress has power to legislate without regard to
recognition, and where Congress has the power to legislate, the
President has a duty to “take Care” that its legislation “be
faithfully executed,” Art. II, §3. It is likewise “the duty of
the secretary of state to conform to the law”; where Congress
imposes a responsibility on him, “he is so far the officer of the
law; is amenable to the laws for his conduct; and cannot at his
discretion sport away the vested rights of others.” Marbury v. Madison , 1 Cranch 137, 158, 166 (1803). The Executive’s
involvement in carrying out this law does not affect its
constitutionality; the Executive carries out every law.

															The Court’s error could be made more apparent by
applying its reasoning to the President’s power “to make Treaties,”
Art. II, §2, cl. 2. There is no question that Congress may, if
it wishes, pass laws that openly flout treaties made by the
President. Head Money Cases , 112 U. S. 580, 597 (1884)
. Would anyone have dreamt that the President may refuse to carry
out such laws—or, to bring the point closer to home, refuse to
execute federal courts’ judgments under such laws—so that the
Executive may “speak with one voice” about the country’s
international obligations? To ask is to answer. Today’s holding
puts the implied power to recognize territorial claims (which the
Court infers from the power to recognize states, which it infers
from the responsibility to receive ambassadors) on a higher footing
than the express power to make treaties. Andthis, even though the
Federalist describes the making of treaties as a “delicate and
important prerogative,” but the reception of ambassadors as “more a
matter of dignity than of authority,” “a circumstance which will be
without consequence in the administration of the government.” The
Federalist No. 69, p. 420 (Hamilton).

															In the end, the Court’s decision does not rest
on text or history or precedent. It instead comes down to
“functional considerations”—principally the Court’s perception that
the Nation “must speak with one voice” about the status of
Jerusalem. Ante, at 11 (ellipsis and internal quotation
marks omitted). The vices of this mode of analysis go beyond mere
lack of footing in the Constitution. Functionalism of the sort the
Court practices today will systematically favor the unitary
President over the plural Congress in disputes involving foreign
affairs. It is possible that this approach will make for more
effective foreign policy, perhaps as effective as that of a
monarchy. It is certain that, in the long run, it will erode the
structure of separated powers that the People established for the
protection of their liberty.

															V

															Justice Thomas’s concurrence deems §214(d)
constitutional to the extent it regulates birth reports, but
unconstitutional to the extent it regulates passports. Ante, at 10 (opinion concurring in judgment in part and dissenting in
part). The concurrence finds no congressional power that would
extend to the issuance or contents of passports. Including the
power to regulate foreign commerce—even though passports facilitate
the transportation of passengers, “a part of our commerce with
foreign nations,” Henderson v. Mayor of New York, 92
U. S. 259, 270 (1876) . Including the power over
naturalization—even though passports issued to citizens, like birth
reports, “have the same force and effect as proof of United States
citizenship as certificates of naturalization,” 22
U. S. C. §2705. Including the power to enforce the
Fourteenth Amendment’s guarantee that “[a]ll persons born or
naturalized in the United States . . . are citizens of
the United States”—even though a passport provides evidence of
citizenship and so helps enforce this guarantee abroad. Including
the power to exclude persons from the territory of the United
States, see Art. I, §9, cl. 1—even though passports are the
principal means of identifying citizens entitled to entry.
Including the powers under which Congress has restricted the
ability of various people to leave the country (fugitives from
justice, for example, see 18 U. S. C. §1073)—even though
passports are the principal means of controlling exit. Including
the power to “make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States,” Art.
IV, §3, cl. 2—even though “[a] passport remains at all times
the property of the United States,” 7 FAM §1317 (2013). The
concurrence’s stingy interpretation of the enumerated powers
forgets that the Constitution does not “partake of the prolixity of
a legal code,” that “only its great outlines [are] marked, its
important objects designated, and the minor ingredients which
compose those objects [left to] be deduced from the nature of the
objects themselves.” McCulloch , 4 Wheat., at 407. It
forgets, in other words, “that it is a constitution we are
expounding.” Ibid. Defending Presidential primacy over passports,
the concurrence says that the royal prerogative in England included
the power to issue and control travel documents akin to the modern
passport. Ante, at 10–11. Perhaps so, but that power was
assuredly not exclusive. The Aliens Act 1793, for example, enacted
almost contemporaneously with our Constitution, required an alien
traveling within England to obtain “a passport from [a] mayor or
. . . [a] justice of [the] peace,” “in which passport
shall be expressed the name and rank, occupation or description, of
such alien.” 33 Geo. III, ch. 4, §8, in 39 Eng. Stat. at Large 12.
The Aliens Act 1798 prohibited aliens from leaving the country
without “a passport . . . first obtained from one of his
Majesty’s principal secretaries of state,” and instructed customs
officers to mark, sign, and date passports before allowing their
bearers to depart. 38 Geo. III, ch. 50, §8, in 41 Eng. Stat. at
Large 684. These and similar laws discredit any claim that, in the
“Anglo-American legal tradition,” travel documents have
“consistently been issued and controlled by the body
exercising executive power,” ante, at 10 (emphasis
added).

															Returning to this side of the Atlantic, the
concurrence says that passports have a “historical pedigree
uniquely associated with the President.” Ante, at 28. This
statement overlooks the reality that, until Congress restricted the
issuance of passports to the State Department in 1856, “passports
were also issued by governors, mayors, and even . . .
notaries public.” Assn. of the Bar of the City of New York, Special
Committee to Study Passport Procedures, Freedom to Travel 6 (1958).
To be sure, early Presidents granted passports without express
congressional authorization. Ante, at 11–12. But this point
establishes Presidential authority over passports in the face of
congressional silence , not Presidential authority in the
face of congressional opposition . Early in the Republic’s
history, Congress made it a crime for a consul to “grant a passport
or other paper certifying that any alien, knowing him or her to be
such, is a citizen of the United States.” §8, 2Stat. 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, 11Stat. 60–61 (1856). Since
then, Congress has made laws about eligibility to receive
passports, the duration for which passports remain valid, and even
the type of paper used to manufacture passports. 22
U. S. C. §§212, 217a; §617(b), 102Stat. 1755. (The
concurrence makes no attempt to explain how these laws were
supported by congressional powers other than those it rejects in
the present case.) This Court has held that the President may not
curtail a citizen’s travel by withholding a passport, except on
grounds approved by Congress . Kent v. Dulles , 357
U. S. 116, 129 (1958) . History and precedent thus refute any
suggestion that the Constitution disables Congress from regulating
the President’s issuance and formulation of passports.

															The concurrence adds that a passport “contains
[a] communication directed at a foreign power.” Ante, at 28.
The “communication” in question is a message that traditionally
appears in each passport (though no statute, to my knowledge,
expressly requires its inclusion): “The Secretary of State of the
United States of America hereby requests all whom it may concern to
permit the citizen/national of the United States named herein to
pass without delay or hindrance and in case of need to giveall
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
concurrence’s suggestion that even if Congress’s enumerated
powers otherwise encompass §214(d), and even if the
President’s power to regulate the contents of passports is not
exclusive, the law might still violate the Constitution,
because it “conflict[s]” with the President’s passport policy. Ante, at 24. It turns the Constitution upside-down to
suggest that in areas of shared authority, it is the executive
policy that preempts the law, rather than the other way around.
Congress may make laws necessary and proper for carrying
into execution the President’s powers, Art. I, §8, cl. 18, but the
President must “take Care” that Congress’s legislation “be
faithfully executed,” Art. II, §3. And Acts of Congress made in
pursuance of the Constitution are the “supreme Law of the Land”;
acts of the President (apart from treaties) are not. Art. VI,
cl. 2. That is why Chief Justice Marshall was right to think
that a law prohibiting the seizure of foreign ships trumped a
military order requiring it. Little v. Barreme , 2
Cranch 170, 178–179 (1804). It is why Justice Jackson was right to
think that a President who “takes measures incompatible with the
expressed or implied will of Congress” may “rely only upon his own
constitutional powers minus any constitutional powers of
Congress over the matter .” Youngstown Sheet & Tube
Co. v. Sawyer , 343 U. S. 579, 637 (1952)
(concurring opinion) (emphasis added). And it is why Justice Thomas
is wrong to think that even if §214(d) operates in a field of
shared authority the President might still prevail.

															Whereas the Court’s analysis threatens
congressional power over foreign affairs with gradual erosion, the
concurrence’s approach shatters it in one stroke. The combination
of (a) the concurrence’s assertion of broad, unenumerated “residual
powers” in the President, see ante, at2–9; (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 Execution” the President’s executive
powers, see ante , at 17–20; produces (d) a presidency more
reminiscent of George III than George Washington.

															*  *  *

															International disputes about statehood and
territory are neither rare nor obscure. Leading foreign debates
during the 19th century concerned how the United States should
respond to revolutions in Latin America, Texas, Mexico, Hawaii,
Cuba. During the 20th century, attitudes toward Communist
governments in Russia and China became conspicuous subjects of
agitation. Disagreements about Taiwan, Kashmir, and Crimea remain
prominent today. A President empowered to decide all questions
relating to these matters, immune from laws embodying
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
American People agreed to live when they adopted the national
charter. They believed that “[t]he accumulation of all powers,
legislative, executive, and judiciary, in the same hands,
. . . may justly be pronounced the very definition of
tyranny.” The Federalist No. 47, p. 301 (Madison). For this reason,
they did not entrust either the President or Congress with sole
power to adopt uncontradictable policies about any subject—foreign-sovereignty disputes included. They instead gave
each political department its own powers, and with that the freedom
to contradict the other’s policies. Under the Constitution they
approved, Congress may require Zivotofsky’s passport and birth
report to record his birthplace as Israel, even if that requirement
clashes with the President’s preference for neutrality about the
status of Jerusalem.

															I dissent. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 13–628

															_________________

															MENACHEM BINYAMIN ZIVOTOFSKY, by his parents
and guardians, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER v. JOHN KERRY, SECRETARY OF STATE

															on writ of certiorari to the united states
court of appeals for the district of columbia circuit

															[June 8, 2015]

															Chief Justice Roberts, with whom Justice Alito
joins, dissenting.

															Today’s decision is a first: Never before has
this Court accepted a President’s direct defiance of an Act of
Congress in the field of foreign affairs. We have instead stressed
that the President’s power reaches “its lowest ebb” when he
contravenes the express will of Congress, “for what is at stake is
the equilibrium established by our constitutional system.” Youngstown Sheet & Tube Co. v. Sawyer , 343
U. S. 579 –638 (1952) (Jackson, J.,concurring).

															Justice Scalia’s principal dissent, which I join
in full, refutes the majority’s unprecedented holding in detail. I
write separately to underscore the stark nature of the Court’s
error on a basic question of separation of powers.

															The first principles in this area are firmly
established. The Constitution allocates some foreign policy powers
to the Executive, grants some to the Legislature, and enjoins the
President to “take Care that the Laws be faithfully executed.”
Art. II, §3. The Executive may disregard “the expressed or
implied will of Congress” only if the Constitution grants him a
power “at once so conclusive and preclusive” as to “disabl[e] the
Congress from acting upon the 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 –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 –532 (2008); Hamdan v. Rumsfeld , 548 U. S. 557 –595, 613–625
(2006); Youngstown , 343 U. S. , at 587–589
(majority opinion); Little v. Barreme , 2 Cranch 170,
177–179 (1804).

															In this case, the President claims the exclusive
and preclusive power to recognize foreign sovereigns. The Court
devotes much of its analysis to accepting the Executive’s
contention. Ante , at 6–26. I have serious doubts about that
position. The majority places great weight on the Reception Clause,
which directs that the Executive “shall receive Ambassadors and
other public Ministers.” Art. II, §3. But that provision,
framed as an obligation rather than an authorization, appears
alongside the duties imposed on the President by Article II,
Section 3, not the powers granted to him by Article II,
Section 2. Indeed, the People ratified the Constitution with
Alexander Hamilton’s assurance that executive reception of
ambassadors “is more a matter of dignity than of authority” and
“will be without consequence in the administration of the
government.” The Federalist No. 69, p. 420 (C. Rossiter ed. 1961).
In short, at the time of the founding, “there was no reason to view
the reception clause as a source of discretionary authority for the
president.” Adler, The President’s Recognition Power: Ministerial
or Discretionary? 25 Presidential Studies Q. 267, 269 (1995).

															The majority’s other asserted textual bases are
even more tenuous. The President does have power to make treaties
and appoint ambassadors. Art. II, §2. Butthose authorities are shared with Congress, ibid. , so they hardly support
an inference that the recognition power is exclusive .

															Precedent and history lend no more weight to the
Court’s position. The majority cites dicta suggesting an exclusive
executive recognition power, but acknowledges contrary dicta
suggesting that the power is shared. See, e.g. , United
States v. Palmer , 3 Wheat. 610, 643 (1818) (“the courts
of the union must view [a] newly constituted government as it is
viewed by the legislative and executive departments of the
government of the United States” (emphasis added)). When the best
you can muster is conflicting dicta, precedent can hardly be said
to support your side.

															As for history, the majority admits that it too
points in both directions. Some Presidents have claimed an
exclusive recognition power, but others have expressed uncertainty
about whether such preclusive authority exists. Those in the
skeptical camp include Andrew Jackson and Abraham Lincoln, leaders
not generally known for their cramped conceptions of Presidential
power. Congress has also asserted its authority over recognition
determinations at numerous points in history. The majority
therefore falls short of demonstrating that “Congress has accepted”
the President’s exclusive recognition power. Ante , at 26. In
any event, we have held that congressional acquiescence is only
“pertinent” when the President acts in the absence of express
congressional authorization, not when he asserts power to disregard
a statute, as the Executive does here. Medellín , 552
U. S., at 528; see Dames & Moore , 453 U. S.,
at 678–679.

															In sum, although the President has authority
over recognition, I am not convinced that the Constitution provides
the “conclusive and preclusive” power required to justify defiance
of an express legislative mandate. Youngstown , 343
U. S., at 638 (Jackson, J., concurring). As the leading
scholar on this issue has concluded, the “text, original
understanding, post-ratification history, and structure of the
Constitution do not support the . . . expansive claim
that this executive power is plenary.” Reinstein, Is the
President’s Recognition Power Exclusive? 86 Temp. L. Rev. 1, 60
(2013).

															But even if the President does have exclusive
recognition power, he still cannot prevail in this case, because
the statute at issue does not implicate recognition . See Zivotofsky v. Clinton , 566 U. S. ___, ___ (2012)
(Alito, J., concurring in judgment) (slip op., at 1); post ,
at 5–10 (Scalia, J., dissenting). The relevant provision, §214(d),
simply gives an American citizen born in Jerusalem the option to
designate his place of birth as Israel “[f ]or purposes of”
passports and other documents. Foreign Relations Authorization Act,
Fiscal Year 2003, 116Stat. 1366. The State Department itself has
explained that “identification”—not recognition—“is the principal
reason that U. S. passports require ‘place of birth.’ ”
App. 42. Congress has not disputed the Executive’s assurances that
§214(d) does not alter the longstanding United States position on
Jerusalem. And the annals of diplomatic history record no examples
of official recognition accomplished via optional passport
designation.

															The majority acknowledges both that the
“Executive’s exclusive power extends no further than his formal
recognition determination” and that §214(d) does “not itself
constitute a formal act of recognition.” Ante , at 27. Taken
together, these statements come close to a confession of error. The
majority attempts to reconcile its position by reconceiving §214(d)
as a “mandate that the Executive contradict his prior recognition
determination in an official document issued by the Secretary of
State.” Ante , at 27. But as just noted, neither Congress nor
the Executive Branch regards §214(d) as a recognition
determination, so it is hard to see how the statute could
contradict any such determination.

															At most, the majority worries that there may be
a perceived contradiction based on a mistaken understanding of the effect of §214(d), insisting that some
“observers interpreted §214 as altering United States policy
regarding Jerusalem.” Ante , at 28. To afford controlling
weight to such impressions, however, is essentially to subject a
duly enacted statute to an international heckler’s veto.

															Moreover, expanding the President’s purportedly
exclusive recognition power to include authority to avoid potential
misunderstandings of legislative enactments proves far too much.
Congress could validly exercise its enumerated powers in countless
ways that would create more severe perceived contradictions with
Presidential recognition decisions than does §214(d). If, for
example, the President recognized a particular country in
opposition to Congress’s wishes, Congress could declare war or
impose a trade embargo on that country. A neutral observer might
well conclude that these legislative actions had, to put it mildly,
created a perceived contradiction with the President’s recognition
decision. And yet each of them would undoubtedly be constitutional.
See ante , at 27. So too would statements by nonlegislative
actors that might be seen to contradict the President’s recognition
positions, such as the declaration in a political party platform
that “Jerusalem is and will remain the capital of Israel.” Landler,
Pushed by Obama, Democrats Alter Platform Over Jerusalem,
N. Y. Times, Sept. 6, 2012, p. A14.

															Ultimately, the only power that could support
the President’s position is the one the majority purports to
reject: the “exclusive authority to conduct diplomatic relations.”
Brief for Respondent 18. The Government offers a single citation
for this allegedly exclusive power: United States v. Curtiss-Wright Export Corp. , 299 U. S. 304 –320 (1936).
But as the majority rightly acknowledges, Curtiss-Wright did
not involve a claim that the Executive could contravene a statute;
it held only that he could act pursuant to a legislative
delegation. Ante , at 17.

															The expansive language in Curtiss-Wright casting the President as the “sole organ” of the Nation in foreign
affairs certainly has attraction for members of the Executive
Branch. The Solicitor General invokes the case no fewer than ten
times in his brief. Brief for Respondent 9, 10, 18, 19, 23, 24, 53,
54. But our precedents have never accepted such a sweeping
understanding of executive power. See Hamdan , 548
U. S., at 591–592; Dames & Moore , 453 U. S.,
at 661–662; Youngstown , 343 U. S., at 587 (majority
opinion); id. , at 635, n. 2 (Jackson, J., concurring);
cf. Little , 2 Cranch, at 179 (Marshall, C. J.) (“I
confess the first bias of my mind was very strong in favour of
. . . the executive . . . [b]ut I have been
convinced that I was mistaken.”).

															Just a few Terms ago, this Court rejected the
President’s argument that a broad foreign relations power allowed
him to override a state court decision that contradicted U. S.
international law obligations. Medellín , 552 U. S., at
523–532. If the President’s so-called general foreign relations
authority does not permit him to countermand a State’s lawful
action, it surely does not authorize him to disregard an express
statutory directive enacted by Congress, which—unlike the
States—has extensive foreign relations powers of its own.
Unfortunately, despite its protest to the contrary, the majority
today allows the Executive to do just that.

															Resolving the status of Jerusalem may be vexing,
but resolving this case is not. Whatever recognition power the
President may have, exclusive or otherwise, is not implicated by
§214(d). It has not been necessary over the past 225 years to
definitively resolve a dispute between Congress and the President
over the recognition power. Perhaps we could have waited another
225 years. But instead the majority strains to reach the question
based on the mere possibility that observers overseas might
misperceive the significance of the birthplace designation at issue
in this case. And in the process, the Court takes the perilous
step—for the first time in our history—of allowing the President to
defy an Act of Congress in the field of foreign affairs.

															I respectfully dissent. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 13–628

															_________________

															MENACHEM BINYAMIN ZIVOTOFSKY, by his parents
and guardians, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER v. JOHN KERRY, SECRETARY OF STATE

															on writ of certiorari to the united states
court of appeals for the district of columbia circuit

															[June 8, 2015]

															Justice Thomas, concurring in the judgment in
part and dissenting in part.

															Our Constitution allocates the powers of the
Federal Government over foreign affairs in two ways. First, it
expressly identifies certain foreign affairs powers and vests them
in particular branches, either individually or jointly. Second, it
vests the residual foreign affairs powers of the Federal
Government— i.e., those not specifically enumerated in the
Constitution—in the President by way of Article II’s Vesting
Clause.

															Section 214(d) of the Foreign Relations
Authorization Act, Fiscal Year 2003, ignores that constitutional
allocation of power insofar as it directs the President, contrary
to his wishes, to list “Israel” as the place of birth of
Jerusalem-born citizens on their passports. The President haslong
regulated passports under his residual foreign affairs power, and
this portion of §214(d) does not fall within any of Congress’
enumerated powers.

															By contrast, §214(d) poses no such problem
insofar as it regulates consular reports of birth abroad. Unlike
passports, these reports were developed to effectuate the
naturalization laws, and they continue to serve the role of
identifying persons who need not be naturalized to obtain
U. S. citizenship. The regulation of these reports does not
fall within the President’s foreign affairs powers, but within
Congress’ enumerated powers under the Naturalization and Necessary
and Proper Clauses.

															Rather than adhere to the Constitution’s
division of powers, the Court relies on a distortion of the
President’s recognition power to hold both of these parts of
§214(d) unconstitutional. Because I cannot join this faulty
analysis, I concur only in the portion of the Court’s judgment
holding §214(d) unconstitutional as applied to passports. I
respectfully dissent from the remainder of the Court’s
judgment.

															I

															A

															The Constitution specifies a number of foreign
affairs powers and divides them between the political branches.
Among others, Article I allocates to Congress the powers “[t]o
regulate Commerce with foreign Nations,” “[t]o establish an uniform
Rule of Naturalization,” “[t]o define and punish Piracies and
Felonies committed on the high Seas, and Offenses against the Law
of Nations,” and “[t]o declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land and Water.”
Art. I, §8. For his part, the President has certain express
powers relating to foreign affairs, including the powers, “by and
with the Advice and Consent of the Senate,” to “appoint
Ambassadors,” and “to make Treaties, provided two thirds of the
Senators present concur.” Art. II, §2. He is also assigned
certain duties with respect to foreign affairs, including serving
as “Commander in Chief ofthe Army and Navy of the United States,” ibid. , and“receiv[ing] Ambassadors and other public
Ministers,” Art. II, §3.

															These specific allocations, however, cannot
account for the entirety of the foreign affairs powers exercised by
the Federal Government. Neither of the political branches is
expressly authorized, for instance, to communicate with foreign
ministers, to issue passports, or to repel sudden attacks. Yet the
President has engaged in such conduct, with the support of
Congress, since the earliest days of the Republic. Prakash &
Ramsey, The Executive Power Over Foreign Affairs, 111 Yale
L. J. 231, 298–346 (2001) (Prakash & Ramsey).

															The President’s longstanding practice of
exercising unenumerated foreign affairs powers reflects a
constitutional directive that “the President ha[s] primary
responsibility—along with the necessary power—to protect the
national security and to conduct the Nation’s foreign relations.” Hamdi v. Rumsfeld , 542 U. S. 507, 580 (2004)
(Thomas, J., dissenting). Specifically, the Vesting Clause of
Article II provides that “[t]he executive Power shall be vested in
a President of the United States.” Art. II, §1. This Clause is
notably different from the Vesting Clause of Article I, which
provides only that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” Art. I,
§1 (emphasis added). By omitting the words “herein granted” in
Article II, the Constitution indicates that the “executive Power”
vested in the President is not confined to those powers expressly
identified in the document. Instead, it includes all powers
originally understood as falling within the “executive Power” of
the Federal Government.

															B

															Founding-era evidence reveals that the
“executivePower” included the foreign affairs powers of a sovereign
State. See Prakash & Ramsey 253. John Locke’s 17th-century
writings laid the groundwork for this understanding of executive
power. Locke described foreign affairs powers—including the powers
of “war and peace, leagues and alliances, and all the transactions
with all persons and communities without the commonwealth”—as
“federative” power. Second Treatise of Civil Government §146,p. 73
(J. Gough ed. 1947). He defined the “executive” power as
“comprehending the execution of the municipal laws of the society
within itself upon all that are parts of it.” Id ., §147, at
73. Importantly, however, Locke explained that the federative and
executive powers must be lodged together, lest “disorder and ruin”
erupt from the division of the “force of the public.” Id. ,
§148, at 73–74.

															Subsequent thinkers began to refer to both of
these powers as aspects of “executive power.” William Blackstone,
for example, described the executive power in England as including
foreign affairs powers, such as the“power of sending embassadors to
foreign states, and receiv-ing embassadors at home”; making
“treaties, leagues, and alliances with foreign states and princes”;
“making war and peace”; and “issu[ing] letters of marque and
reprisal.” 1 Commentaries on the Laws of England 245, 249, 250,
242–252 (1765) (Blackstone). Baron de Montesquieu similarly
described executive power as including the power to “mak[e] peace
or war, sen[d] or receiv[e] embassies, establis[h] the public
security, and provid[e] against invasions.” The Spirit of the Laws
bk. XI, ch. 6, p. 151 (O. Piest ed., T. Nugent transl. 1949). In
fact, “most writers of [Montesquieu’s] tim[e] w[ere] inclined to
think of the executive branch of government as being concerned
nearly entirely with foreign affairs.” W. Gwyn, The Meaning of the
Separation of Powers 103 (1965).

															That understanding of executive power prevailed
in America. Following independence, Congress assumed control over
foreign affairs under the Articles of Confederation. See, e.g., Articles of Confederation, Art. IX, cl. 1. At that
time, many understood that control to be an exercise of executive
power. See Prakash & Ramsey 272, 275–278. Letters among Members
of the Continental Congress, for instance, repeatedly referred to
the Department of Foreign Affairs, established under the control of
the Continental Congress, as an “Executive departmen[t]” and to its
officers as “ ‘Executives or Ministers.’ ” Id., at
276, and nn. 194–196. Similarly, the Essex Result of 1778—an
influential report on the proposed Constitution for
Massachusetts—described executive power as including both
“external” and “internal” powers: The external executive power
“comprehends war, peace, the sending and receiving ambassadors, and
whatever concerns the transactions of the state with any other
independent state,” while the internal executive power “is employed
in the peace, security and protection of the subject and his
property.” Essex Result, in The Popular Sources of Political
Authority: Documents on the Massachusetts Constitution of 1780, pp.
324, 337 (O. Handlin & M. Handlin eds. 1966).

															This view of executive power was widespread at
the time of the framing of the Constitution. Thomas Rutherforth’s
Institutes of Natural Law—a treatise routinely cited by the
Founders, McDowell, The Limits of Natural Law: Thomas Rutherforth
and the American Legal Tradition, 37 Am. J. Juris. 57, 59, and n.
10 (1992)—explained that “external executive power” includes “not
only what is properly called military power, but the power likewise
of making war or peace, the power of engaging in alliances for an
encrease of strength, . . . the power of entering into
treaties, and of making leagues to restore peace . . .
and the power of adjusting the rights of a nation in respect of
navigation, trade, etc.,” 2 Institutes of Natural Law 55–56, 54–61
(1756). During the ratification debates, James Wilson likewise
referred to the “executive powers of government” as including the
external powers of a nation. 2 J. Elliot, The Debates in the
Several State Conventions on the Adoption of the Federal
Constitution 500–502 (1863). And Alexander Hamilton, writing as
Publius, asserted that “[t]he actual conduct of foreign
negotiations,” “the arrangement of the army and navy, the
directions of the operations of war . . . and other
matters of a like nature” are “executive details” that “fal[l]
peculiarly within the province of the executive department.” The
Federalist No. 72, pp. 435–436 (C. Rossiter ed. 1961).

															Given this pervasive view of executive power, it
is unsurprising that those who ratified the Constitution understood
the “executive Power” vested by Article II to include those foreign
affairs powers not otherwise allocated in the Constitution. James
Iredell, for example, told the North Carolina ratifying convention
that, under the new Constitution, the President would “regulate all
intercourse with foreign powers” and act as the “primary agent” of
the United States, though no specific allocation of foreign affairs
powers in the document so provided. 4 Elliot, supra , at 127,
128. And Alexander Hamilton presumed as much when he argued that
the “[e]nergy” created in the Constitution’s Executive would be
“essential to the protection of the community against foreign
attacks,” even though no specific allocation of foreign affairs
powers provided for the Executive to repel such assaults. See The
Federalist No. 70, p. 423. These statements confirm that the
“executive Power” vested in the President by Article II includes
the residual foreign affairs powers of the Federal Government not
otherwise allocated by the Constitution.[ 1 ]

															C

															Early practice of the founding generation also
supports this understanding of the “executive Power.” Upon taking
office, President Washington assumed the role of chief diplomat;
began to direct the Secretary of Foreign Affairs who, under the
Articles of Confederation, had reported to the Congress; and
established the foreign policy of the United States. Prakash &
Ramsey 296–297. At the same time, he respected Congress’
prerogatives to declare war, regulate foreign commerce, and
appropriate funds. Id. ,at 296.

															For its part, Congress recognized a broad
Presidential role in foreign affairs. Id. , at 297–298. It
created an “Executive department” called the “Department of Foreign
Affairs,” with a Secretary wholly subordinate to the President. An
Act for Establishing an Executive Department, to be denominated the
Department of Foreign Affairs, 1Stat. 28. The enabling Act provided
that the Secretary was to “perform and execute such duties as shall
from time to time be enjoined on or intrusted to him by the
President,” including those “relative to correspondences,
commissions or instructions to or with public ministers or consuls,
from the United States, or to negotiations with public ministers
from foreign states or princes, or to memorials or other
applications from foreign public ministers or other foreigners, or
to such other matters respecting foreign affairs.” §1, id., at 29. By referring to those duties as those “the President of the
United States shall assign to the said department,” ibid. ,
the Act presumed the President inherently possessed power to engage
in those tasks.

															Subsequent interactions between President
Washington and Congress indicated that the parties involved
believed the Constitution vested the President with authority to
regulate dealings with foreign nations. In his first State of the
Union Address, President Washington told Congress that “[t]he
interests of the United States require, that our intercourse with
other nations should be facilitated by such provisions as will
enable me to fulfil my duty in that respect.” First Annual Message
(Jan. 8, 1790), in George Washington: A Collection 467, 468 (W.
Allen ed. 1988). To that end, he asked for compensation for
employees and a fund designated for “defraying the expenses
incident to the conduct of our foreign affairs.” Ibid. Congress responded by passing “An Act providing the means of
intercourse between the United States and foreign nations.” Ch. 22,
1Stat. 128.

															During the congressional debate over that bill,
the President sought an opinion from Thomas Jefferson—at that time,
Secretary of State—about the scope of the Senate’s power in this
area. Jefferson responded that “[t]he transaction of business with
foreign nations is executive altogether.” Opinion on the Powers of
the Senate (Apr. 24, 1790), in 5 Writings of Thomas Jefferson 161
(P. Ford ed. 1895). As such, Jefferson concluded that it properly
belonged “to the head” of the executive department, “except as to
such portions of it as are specially submitted to the senate.” Ibid. According to Washington’s diaries, he received similar
advice from John Jay and James Madison about “the propriety of
consulting the Senate on the places to which it would be necessary
to send persons in the Diplomatic line, and Consuls.” 6 The Diaries
of George Washington 68 (D. Jackson & D. Twohig eds. 1979). All
agreed that the Senate lacked a “Constitutional right to interfere
with either, & that it might be impolitic to draw it into a
precedent their powers extending no farther than to an approbation
or disapprobation of the person nominated by the President all the
rest being Executive and vested in the President by the
Constitution.” Ibid. Washington followed this advice. He corresponded
directly with U. S. ministers, moved them among countries, and
removed them from their positions at will. Prakash & Ramsey
308–309. He also corresponded with foreign leaders, representing
that his role as the “ ‘supreme executive authority’ ”
authorized him to receive and respond to their letters on behalf of
the United States. Id., at 317. When foreign ministers
addressed their communications to Congress, he informed them of
their error. Id., at 321.

															Washington’s control over foreign affairs
extended beyond communications with other governments. When
confronted with the question whether to recognize the French
Republic as the lawful government of France, he received the French
Republic’s emissary without the involvement of Congress. Id., at 312. When he later concluded that the emissary had
acted inappropriately, he again acted without the involvement of
Congress to ask the French executive to recall him. Id., at
314–315. Washington also declared neutrality on behalf of the
United States during the war between England and France in 1793,
see Proclamation of Neutrality (Apr. 22, 1793), an action Hamilton
pseudonymously defended as a proper exercise of the power vested in
the President by the “general grant” of executive power in the
Vesting Clause. Pacificus No. 1 (June 29, 1793), Letters of
Pacificus and Helvidius 10 (1845); id., at 3. For its part,
Congress applauded the President’s decision. 4 Annals of Cong. 18,
138 (1793).

															In short, the practices of the Washington
administration and First Congress confirm that Article II’s Vesting
Clause was originally understood to include a grant of residual
foreign affairs power to the Executive.

															II

															The statutory provision at issue implicates
the President’s residual foreign affairs power. Section 214(d)
instructs the Secretary of State, upon request of a citizen born in
Jerusalem (or that citizen’s legal guardian), to list that
citizen’s place of birth as Israel on his passport and consular
report of birth abroad, even though it is the undisputed position
of the United States that Jerusalem is not a part of Israel. The
President argues that this provision violates his foreign affairs
powers generally and his recognition power specifically. Zivotofsky
rejoins that Congress passed §214(d) pursuant to its enumerated
powers and its action must therefore take precedence.

															Neither has it quite right. The President is not
constitutionally compelled to implement §214(d) as it appliesto
passports because passport regulation falls squarely within his
residual foreign affairs power and Zivotofsky has identified no
source of congressional power to require the President to list
Israel as the place of birth for a citizen born in Jerusalem on
that citizen’s passport. Section 214(d) can, however, be
constitutionally applied to con-sular reports of birth abroad
because those documentsdo not fall within the President’s foreign
affairs authority but do fall within Congress’ enumerated powers
over naturalization.[ 2 ]

															A

															1

															In the Anglo-American legal tradition,
passports have consistently been issued and controlled by the body
exercising executive power—in England, by the King; in the
colonies, by the Continental Congress; and in the United States, by
President Washington and every President since.

															Historically, “passports were classed with those
documents known as safe conducts or letters of protection, by which
the person of an enemy might be rendered safe and inviolable.” G.
Hunt, U. S. Dept. of State, The American Passport: Its History
3 (1898). Letters of safe conduct and passports performed different
functions in England, but both grew out of the King’s prerogative
to regulate the “nation’s intercourse with foreign nations,” see 1
Blackstone 251–253. The King issued letters of safe conduct during
times of war, id., at 252, whereas passports were heirs to a
tradition of requiring the King’s license to depart the country,
see, e.g., Richard II, Feb. 26, 1383, 2 Calendar of Close
Rolls, pp. 281–282 (1920); 1 E. Turner, The Privy Council of
England in the Seventeenth and Eighteenth Centuries 1603–1784, p.
151 (1927); see also K. Diplock, Passports and Protection in
International Law, in 32 The Grotius Society, Transactions for the
Year 1946, Problems of Public and Private International Law 42, 44
(1947).

															Both safe conducts and passports were in use at
the time of the founding. Passports were given “for greater
security” “on ordinary occasions [to] persons who meet with no
special interference in going and coming,” whereas
“safe-conduct[s]” were “given to persons who could not otherwise
enter with safety the dominions of the sovereign granting it.” 3 E.
de Vattel, The Law of Nations §265, p. 331 (1758 ed. C. Fenwick
transl. 1916) (emphasis deleted). Both were issued by the person
exercising the external sovereign power of a state. See id. ,
§§162, 275, at 69, 332. In the absence of a separate executive
branch of government, the Continental Congress issued passports
during the American Revolution, see, e.g., Resolution (May
9, 1776), in 4 Journals of the Continental Congress 340–341;
Resolution (May 24, 1776), in id. , at 385; as did the
Congress under the Articles of Confederation, see, e.g., 25 id. , at 859 (Jan. 24, 1783) (discussing its authority to
issue passports under the war power).

															After the ratification of the Constitution,
President Washington immediately took responsibility for issuing
passports. Hunt, supra , at 3. Although “ ‘[p]ast
practice does not, by itself, create power,’ ” “a governmental
practice [that] has been open, widespread, and unchallenged since
the early days of the Republic . . . should guide our
interpretation of an ambiguous constitutional provision.” NLRB v. Noel Canning , 573 U. S. ___, ___ (2014)
(Scalia, J., concurring in judgment) (slip op., at 5) (alteration
in original; some internal quotation marks omitted). The history of
the President’s passport regulation in this country is one such
practice. From the ratification until the end of the Civil War, the
President issued passports without any authorization from Congress.
As the Department of State later remarked, “In the absence of any
law upon the subject, the issuing of passports to Americans going
abroad naturally fell to the Department of State, as one of its
manifestly proper functions.” Hunt, supra , at 37. To that
end, the Secretary’s authority was “entirely discretionary.” Urtetiqui v. D’Arcy , 9 Pet. 692, 699 (1835). Congress
acted in support of that authority by criminalizing the
“violat[ion] [of] any safe-conduct or passport duly obtained and
issued under the authority of the United States.” An Act for the
Punishment of certain Crimes against the United States, §28, 1Stat.
118.[ 3 ] Congress only purported
to authorize the President to issue such passports in 1856 and,
even under that statute, it provided that passports should be
issued “under such rules as the President shall designate and
prescribe for and on behalf of the United States.” An Act to
regulate the Diplomatic and Consular Systems of the United States,
§23, 11Stat. 60. The President has continued to designate and
prescribe the rules for passports ever since.

															2

															That the President has the power to regulate
passports under his residual foreign affairs powers does not,
however, end the matter, for Congress has repeatedly legislatedon
the subject of passports. These laws have always been narrow in
scope. For example, Congress enacted laws prohibiting the issuance
of passports to noncitizens, id. , at 61, created an
exception to that rule for “persons liable to military duty,” Act
of Mar. 3, 1863, §23, 12Stat. 754, and then eliminated that
exception, Act of May 30, 1866, ch. 102, 14Stat. 54. It passed laws
regulating the fees that the State Department should impose for
issuance of the passports. Act of May 16, 1932, ch. 187, 47Stat.
157; Act of June 4, 1920, §1, 41Stat. 750; Act of June 15, 1917,
ch. 30, Title IX, §1, 40Stat. 227; Act of Aug. 18, 1856, §23,
11Stat. 60; Act of Mar. 1, 1855, §12, 10Stat. 624. It also enacted
legislation addressing the duration for which passports may remain
valid. §116, 96Stat. 279; Pub. L. 90–428, 82Stat. 446; Pub. L.
86–267, 73Stat. 552; Act of July 3, 1926, 44Stat. 887. And it
passed laws imposing criminal penalties for false statements made
when applying for passports, along with misuse of passports and
counterfeiting or forgery of them. Act of June 25, 1948, 62Stat.
771; Act of Mar. 28, 1940, §7, 54Stat. 80; 40Stat. 227.[ 4 ]

															As with any congressional action, however, such
legislation is constitutionally permissible only insofar as it is
promulgated pursuant to one of Congress’ enumerated powers. I must
therefore address whether Congress had constitutional authority to
enact §214(d)’s regulation of passports.

															a

															Zivotofsky and congressional amici identify three potential sources of congressional power to enact
the portion of §214(d) dealing with passports. Zivotofsky first
argues that it falls within Congress’ power “to regulate the
issuance and content of United States passports.” Brief for
Petitioner 17. The U. S. Senate, as amicus curiae ,
likewise contends that it can be justified under Congress’ “plenary
authority over passports,” which it derives from the penumbras of
its powers “ ‘[t]o regulate Commerce with foreign
Nations’ ” and “ ‘[t]o establish an uniform Rule of
Naturalization.’ ” Brief for United States Senate 3 (quoting
U. S. Const., Art. I, §8, cls. 3, 4). None of these arguments
withstands scrutiny.

															The Constitution contains no Passport Clause,
nor does it explicitly vest Congress with “plenary authority over
passports.” Because our Government is one of enumerated powers,
“Congress has no power to act unless the Constitution authorizes it
to do so.” United States v. Comstock , 560 U. S.
126, 159 (2010) (Thomas, J., dissenting). And “[t]he Constitution
plainly sets forth the ‘few and defined’ powers that Congress may
exercise.” Ibid. A “passport power” is not one of them.

															Section 214(d)’s passport directive fares no
better under those powers actually included in Article I. To start,
it does not fall within the power “[t]o regulate Commerce with
foreign Nations.” “At the time the original Constitution was
ratified, ‘commerce’ consisted of selling, buying, and bartering,
as well as transporting for these purposes.” United States v. Lopez , 514 U. S. 549, 585 (1995) (Thomas, J.,
concurring). The listing of the place of birth of an
applicant—whether born in Jerusalem or not—does not involve
selling, buying, bartering, or transporting for those purposes. Cf. United States v. Morrison , 529 U. S. 598, 613
(2000) (“[O]ur cases have upheld Commerce Clause regulation of
intrastate activity [under the power to regulate commerce among the
several States] only where that activity is economic in
nature”).

															True, a passport is frequently used by persons
who may intend to engage in commerce abroad, but that use is
insufficient to bring §214(d)’s passport directive within the scope
of this power. The specific conduct at issue here—the listing of
the birthplace of a U. S. citizen born in Jerusalem on a
passport by the President—is not a commercial activity. Any
commercial activities subsequently undertaken by the bearer of a
passport are yet further removed from that regulation.

															The power “[t]o establish an uniform Rule of
Naturalization” is similarly unavailing. At the founding, the word
“naturalization” meant “[t]he act of investing aliens with the
privileges of native subjects.” 2 S. Johnson, A Dictionary of the
English Language 1293 (4th ed. 1773); see also T. Dyche & W.
Pardon, A New General English Dictionary (1771) (“the making a
foreigner or alien, a denizen or freeman of any kingdom or city,
and so becoming, as it were, both a subject and a native of a king
or country, that by nature he did not belong to”). A passport has
never been issued as part of the naturalization process. It is—and
has always been—a “travel document,” Dept. of State, 7 Foreign
Affairs Manual (or FAM) §1311(b) (2013), issued for the same
purpose it has always served: a request from one sovereign to
another for the protection of the bearer. See supra, at
10–12.

															b

															For similar reasons, the Necessary and Proper
Clause gives Congress no authority here. That Clause provides, “The
Congress shall have Power . . . [t]o make all Laws which
shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution
in the Government of the United States, or in any Department or
Officer thereof.” U. S. Const., Art. I, §8, cl. 18. As an
initial matter, “Congress lacks authority to legislate [under this
provision] if the objective is anything other than ‘carrying into
Execution’ one or more of the Federal Government’s enumerated
powers.” Comstock , supra , at 161 (Thomas, J.,
dissenting). The “end [must] be legitimate” under our
constitutional structure. McCulloch v. Maryland , 4
Wheat. 316, 421 (1819).

															But even if the objective of a law is carrying
into execution one of the Federal Government’s enumerated powers,
the law must be both necessary and proper to that objective. The
“Clause is not a warrant to Congress to enact any law that bears
some conceivable connection to the exercise of an enumerated
power.” Gonzales v. Raich , 545 U. S. 1, 60
(2005) (Thomas, J., dissenting). Instead, “there must be a
necessary and proper fit between the ‘means’ (the federal law) and
the ‘end’ (the enumerated power or powers) it is designed to
serve.” Comstock , supra, at 160 (Thomas, J.,
dissenting). The “means” chosen by Congress “will be deemed
‘necessary’ if they are ‘appropriate’ and ‘plainly adapted’ to the
exercise of an enumerated power, and ‘proper’ if they are not
otherwise ‘prohibited’ by the Constitution and not ‘[in]consistent’
with its ‘letter and spirit.’ ” Id., at 160–161
(alteration in original).

															The argument that §214(d), as applied to
passports, could be an exercise of Congress’ power to carry into
execution its foreign commerce or naturalization powers falters
because this aspect of §214(d) is directed at neither of the ends
served by these powers. Although at a high level of generality, a
passport could be related to foreign commerce and naturalization,
that attenuated relationship is insufficient. The law in question
must be “directly link[ed]” to the enumerated power. Id., at
169, n. 8. As applied to passports, §214(d) fails that test
because it does not “ ‘carr[y] into Execution’ ”
Congress’ foreign commerce or naturalization powers. Id., at
160. At most, it bears a tertiary relationship to an activity
Congress is permitted to regulate: It directs the President’s
formulation of a document, which, in turn, may be used to
facilitate travel, which, in turn, may facilitate foreign commerce.
And the distinctive history of the passport as a travel rather than
citizenship document makes its connection to naturalization even
more tenuous.

															Nor can this aspect of §214(d) be justified as
an exercise of Congress’ power to enact laws to carry into
execution the President’s residual foreign affairs powers. Simply
put, §214(d)’s passport directive is not a “proper” means of
carrying this power into execution.

															To be “proper,” a law must fall within the
peculiar competence of Congress under the Constitution. Though
“proper” was susceptible of several definitions at the time of the
founding, only two are plausible candidates for use in the
Necessary and Proper Clause—(1) “[f]it; accommodated; adapted;
suitable; qualified” and (2) “[p]eculiar; not belonging to more;
not common.” See 2 Johnson, supra, at 1537. Because the
former would render the word “necessary” superfluous, McCulloch , supra, at 413, and we ordinarily attempt
to give effect “to each word of the Constitution,” Knowlton v. Moore , 178 U. S. 41, 87 (1900) , the latter is the
more plausible. That is particularly true because the Constitution
elsewhere uses the term “proper” by itself, Art. I, §9,
Art. II, §§2, 3; the term “necessary” by itself, Art. I, §7;
Art. V; and the term “necessary” as part of the phrase
“necessary and expedient,” Art. II, §3. Thus, the best
interpretation of “proper” is that a law must fall within the
peculiar jurisdiction of Congress.

															Our constitutional structure imposes three key
limitations on that jurisdiction: It must conform to (1) the
allocation of authority within the Federal Government, (2) the
allocation of power between the Federal Government and the States,
and (3) the protections for retained individual rights under the
Constitution. See Lawson & Granger, The “Proper” Scope of
Federal Power: A Jurisdictional Interpretation of the Sweeping
Clause, 43 Duke L. J. 267, 291, 297 (1993). In other words, to
be “proper,” a law “must be consistent with principles of
separation of powers, principles of federalism, and individual
rights.” Id. ,at 297 . Commentators during the ratification debates
treated “proper” as having this meaning. Writing as Publius,
Hamilton posed the question who would “judge . . . the necessity and propriety of the laws to be passed for
executing the powers of the Union” and responded that “[t]he
propriety of a law, in a constitutional light, must always be
determined by the nature of the powers upon which it is founded.”
The Federalist, No. 33, pp. 203–204. For example, a law that
“exceeded [Congress’] jurisdiction” and invaded the authority of
the States would not meet that standard. Id., at 204.
Similarly, an “impartial citizen” wrote in a Virginia newspaper
that, even if the governmental powers could not “be executed
without the aid of a law, granting commercial monopolies,
inflicting un-usual punishments, creating new crimes, or commanding
any unconstitutional act,” thus making the law necessary to the
execution of a power, “such a law would be manifestly not proper,”
and not “warranted by this clause, without absolutely departing
from the usual acceptation of words.” An Impartial Citizen V,
Petersburg Va. Gazette, Feb. 28, 1788, in 8 Documentary History of
the Ratification of the Constitution 428, 431 (J. Kaminski & G.
Saladino eds. 1988) (emphasis deleted).

															Early interpretations of the Clause following
ratification largely confirm that view. Lawson & Granger, supra, at 298–308. During debate on the Bank of the United
States in the First Congress, for example, Representative Ames
declared that the correct construction of the Necessary and Proper
Clause “promotes the good of the society, and the ends for which
the Government was adopted, without impairing the rights of any
man, or the powers of any State.” 2 Annals of Cong. 1906 (1791).
During the Second Congress, Representative Niles railed against a
bill that would have authorized federal mail carriers to transport
passengers for hire in order to reduce the cost of the mails. He
said that such a law would not be “proper” to the power to
establish post offices and post roads because some States had “an
exclusive right of carrying passengers for hire” and an
interpretation of the word “proper” that would allow the bill would
render “as nugatory, all [the States’] deliberations on the
Constitution” and effectively vest Congress with “general authority
to legislate on every subject.” 3 id., at 308–310 (1792)
(emphasis deleted). Each of these comments presumed that the word
“proper” imposed a jurisdictional limit on congressional
activity.

															This evidence makes sense in light of the
Framers’ efforts to ensure a separation of powers, reinforced by
checks and balances, as “practical and real protectio[n] for
individual liberty in the new Constitution.” Perez v. Mortgage Bankers Assn. , 575 U. S. ___, ___ (2015)
(Thomas, J., concurring in judgment) (slip op., at 8). If Congress
could rely on the Necessary and Proper Clause to exercise power
expressly allocated to the other branches or to prevent the
exercise of such power by other branches, it could undermine the
constitutional allocation of powers.

															That the evidence thus points to a definition of
“proper” that protects the separation of powers does not fully
explain the way that the “proper” requirement operates when
Congress seeks to facilitate the exercise of a power allocated to
another branch. I can see two potential mechanisms, either or both
of which may accurately reflect the original understanding of the
Clause. First, a law could be “improper” if it purports to direct
another branch’s exercise of its power. See Calabresi &
Prakash, The President’s Power to Execute the Laws, 104 Yale
L. J. 541, 591 (1994) (“[T]he Clause . . . does
[not] allow Congress to tell constitutionally empowered actors how
they can implement their exclusive powers”). Second, a law could be
“improper” if it takes one of those actions and the branch
to which the power is allocated objects to the action. See Prakash
& Ramsey 255–256 (“Congress has the general power to legislate
in support of the President’s foreign policy goals. But
. . . [s]ince it is derivative of the President’s power,
it must be exercised in coordination with, and not in opposition
to, the President”).

															I need not resolve that question today, as the
application of §214(d) to passports would be improper under either
approach. The President has made a determination that the “place of
birth” on a passport should list the country of present
sovereignty. 7 FAM, §1300, App. D, §1330 (2014). And the President
has determined that no country is presently exercising sovereignty
over the area of Jerusalem. Thus, the President has provided that
passports for persons born in Jerusalem should list “Jerusalem” as
the place of birth in the passport. Id. , §1360(f). Section
214(d) directs the President to exercise his power to issue and
regulate the content of passports in a particular way, and the
President has objected to that direction. Under either potential
mechanism for evaluating the propriety of a law under the
separation-of-powers limitation, this law would be
improper.[ 5 ]

															c

															In support of his argument that the President
must enforce §214(d), Zivotofsky relies heavily on a similar
statute addressing the place of birth designation for persons born
in Taiwan. See Foreign Relations Authorization Act, Fiscal Years
1994 and 1995, §132, 108Stat. 395. That statute provided, “For
purposes of the registration of birth or certification of
nationality of a United States citizen born in Taiwan, the
Secretary of State shall permit the place of birth to be recorded
as Taiwan.” Ibid. The President has adopted that
practice.

															The President’s decision to adopt that practice,
however, says nothing about the constitutionality of the Taiwan
provision in the first place. The constitutional allocation of
powers “does not depend on the views of individual Presidents, nor
on whether the encroached upon branch approves the encroachment.” Free Enterprise Fund v. Public Company Accounting
Oversight Bd. , 561 U. S. 477, 497 (2010) (citation and
internal quotation marks omitted).[ 6 ] And the argument from Presidential acquiescence here is
particularly weak, given that the Taiwan statute is consistent with
the President’s longstanding policy on Taiwan. At the time Congress
enacted the statute, the Foreign Affairs Manual permitted consular
officials to list “the city or area of birth” on a passport
“[w]here the birthplace of the applicant is located in territory
disputed by another country,” 7 FAM §1383.5–2 (1987), and to list
“the city or town, rather than the country” of an applicant’s birth
“when there are objections to the listing shown on the birthplace
guide,” id. , §1383.6. Because the President otherwise treats
Taiwan as a geographical area within the People’s Republic of
China, listing Taiwan as the place of birth did not directly
conflict with the President’s prevailing practices. Section 214(d) does so conflict, as it requires the President to list
citizens born in Jerusalem as born in “Israel,” even though the
Foreign Affairs Manual has long prohibited that action.

															d

															Justice Scalia would locate Congress’ power to
enact the passport directive of §214(d) in Congress’ power under
the Necessary and Proper Clause to bring into effect its enumerated
power over naturalization. Post, at 3–4 (dissenting
opinion). As an initial matter, he asserts that “[t]he
naturalization power . . . enables Congress to furnish
the people it makes citizens with papers verifying their
citizenship,” post, at 3, yet offers no support for this
interpretation of a clause that, by its terms, grants Congress only
the “Power . . . To establish an uniform Rule of
Naturalization,” U. S. Const., Art. I, §8, cl. 4. He then
concludes that, if Congress can grant such documents, “it may also
require these [documents] to record his birthplace as
‘Israel’ ” pursuant to its power under the Necessary and
Proper Clause, post, at 3. But this theory does not account
for the President’s power to act in this area, nor does it confront
difficult questions about the application of the Necessary and
Proper Clause in the case of conflict among the branches.

															Justice Scalia disapproves of my “assertion of
broad, unenumerated ‘residual powers’ in the President,” post, at 19, but offers no response to my interpretation of
the words “executive Power” in the Constitution. Instead, he claims
that I have argued for “Presidential primacy over passports” and
then rejects that position based on two postratification English
statutes, the early practice of nonfederal actors issuing passports
in this country, and the same congressional statutes that I have
already discussed, most of which were enacted after the Civil War. Post, at 16–17; supra, at 13, and n. 4. But I do
not argue that the President possesses primary power over
passports. I need not argue that. I argue only that Congress did
not act according to any of the powers granted to it in the
Constitution and, in such circumstances, the question of primacy
does not arise.

															In any event, the historical evidence cited in
Justice Scalia’s dissent does not conflict with my analysis of the
President’s power in this area. The two postratification English
statutes implicitly acknowledged that passports are issued by
executive officers in the exercise of executive power, see 38 Geo.
III, ch. 50, §8, in 41 Eng. Stat. at Large 684; 33 Geo. III, ch. 4,
§8, in 39 Eng. Stat. at Large 12, and the practice of executive
officials in the States of this country confirms that relationship.
In addition, neither piece of historical evidence speaks to the
scope of Congress ’ power to regulate passports under our
federal system. Justice Scalia’s final piece of historical
support—the increased congressional regulation of passports
following the Civil War—is perhaps more on point from an
institutional perspective, but still does not resolve the issue.
Those regulations were, as I have already described, narrow in
scope and continued to leave primary regulation of the content of
passports to the President. To draw an inference from these
“late-arising historical practices that are ambiguous at best”—and
that might conflict with the original meaning of the “executive
Power” and the “proper” requirement in the Necessary and Proper
Clause—is a dubious way to undertake constitutional analysis. See Noel Canning , 573 U. S., at ___ (Scalia, J., concurring
in judgment) (slip op., at 2).

															Even more dubious, however, is the cursory
treatment of the Necessary and Proper Clause in Justice Scalia’s
dissent. He asserts that, in acting pursuant to that Clause,
“Congress . . . may not transcend boundaries upon
legislative authority stated or implied elsewhere in the
Constitution.” Post, at 4. But he offers no explanation for
what those implied limits might be or how they would operate. Does
he, for example, agree that the word “proper” requires Congress to
act in a manner “ ‘consistent with principles of separation of
powers, principles of federalism, and individual rights’ ”? Supra, at 18 (quoting Lawson & Grainger, 43 Duke
L. J., at 297) . If so, then why does he find that
requirement satisfied in this case? Is it because he views the
President as having no constitutional authority to act in this
area? Or is it because he views Congress’ directive to the
President as consistent with the separation of powers, irrespective
of the President’s authority? If the latter, is that because he
perceives no separation-of-powers limitations on Congress when it
acts to carry into execution one of its enumerated powers,
as opposed to the enumerated powers of another branch? And
if that is the case, what textual, structural, or historical
evidence exists for that interpretation? Justice Scalia’s dissent
raises more questions than it answers.

															Justice Scalia’s dissent does at least
answer how, in his view, the Constitution would resolve a conflict
between the political branches, each acting pursuant to the powers
granted them under the Constitution. He believes that congressional
power should trump in any such conflict. Post , at 18. I see
nothing in the Constitution that clearly mandates that solution to
a difficult separation-of-powers question, and I need not opine on
it. I find no power under which Congress could lawfully have
enacted the passport directive of §214(d), apart from its power
under the Necessary and Proper Clause to carry into effect the
President’s powers. And I have offered textual and historical
support for my conclusion that the Clause does not include the
power to direct the President’s exercise of his passport power.

															Finally, Justice Scalia faults me for failing to
consider a number of potential sources of congressional power for
§214(d) not argued by any of the parties, ranging from the
Fourteenth Amendment; to the Migration or Importation Clause, Art.
I, §9, cl. 1; to the Territories Clause, Art. IV, §3, cl. 2. Post, at 15. But no one—not even Justice Scalia—has
seriously contended that those provisions would afford a basis for
the passport provision of §214(d).

															In the end, Justice Scalia characterizes my
interpretation of the executive power, the naturalization power,
and the Necessary and Proper Clause as producing “a presidency more
reminiscent of George III than George Washington.” Post , at
19. But he offers no competing interpretation of either the Article
II Vesting Clause or the Necessary and Proper Clause. And his
decision about the Constitution’s resolution of conflict among the
branches could itself be criticized as creating a supreme
legislative body more reminiscent of the Parliament in England than
the Congress in America.

															*  *  *

															Because the President has residual foreign
affairs authority to regulate passports and because there appears
to be no congressional power that justifies §214(d)’s application
to passports, Zivotofsky’s challenge to the Executive’s designation
of his place of birth on his passport must fail.

															B

															Although the consular report of birth abroad
shares some features with a passport, it is historically associated
with naturalization, not foreign affairs. In order to establish a
“uniform Rule of Naturalization,” Congress must be able to identify
the categories of persons who are eligible for naturalization,
along with the rules for that process. Congress thus has always
regulated the “acquisition of citizenship by being born abroad of
American parents . . . in the exercise of the power conferred by
the Constitution to establish a uniform rule of naturalization.” United States v. Wong Kim Ark , 169 U. S. 649,
688 (1898) ; see also Miller v. Albright , 523
U. S. 420, 456 (1998) (Scalia, J., concurring in judgment)
(recognizing that “Congress has the power to set the requirements
for acquisition of citizenship by persons not born within the
territory of the United States”). It has determined that children
born abroad to U. S. parents, subject to some exceptions, are
natural-born citizens who do not need to go through the
naturalization process. 8 U. S. C. §§ 1401(c), (d),
(g).

															The consular report of birth abroad is well
suited to carrying into execution the power conferred on Congress
in the Naturalization Clause. The report developed in response to
Congress’ requirement that children born abroad to U. S.
citizens register with the consulate or lose their citizenship. And
it continues to certify the acquisition of U. S. citizenship
at birth by a person born abroad to a U. S. citizen. See 22
U. S. C. §2705(2).

															Although such persons have possessed a statutory
right to citizenship at birth for much of this country’s
history,[ 7 ] the process by
which that citizenship is evidenced has varied over time. Under the
1870 consular regulations, for instance, children born abroad to
U. S. citizens were issued no certificates. If they applied
for a U. S. passport, then they were issued one “qualified by
the obligations and duties” that attached to those citizens by
virtue of their residence in a foreign nation. Regulations
Prescribed For The Use Of The Consular Service of the UnitedStates
App. No. IV, p. 288 (1870); see also id. , §109, at38–39.
Congress acted in 1907 to require children residing abroad to
register with their local consulate at the age of 18. Act of Mar.
2, 1907, §6, 34Stat. 1229. Because of the importance of this
registration requirement, consular officials began to issue reports
to citizens confirming their registration. See generally National
Archives, General Records of the Dept. of State, Record Group 59,
Passport Office, Decimal File, 1910–1949.

															In 1919, the Department of State acted to
standardize the consular registration of children born abroad.
Report of Birth of Children to American Citizens Residing Abroad,
General Instruction No. 652. It urged consulates to impress upon
U. S. citizens abroad the need to record the birth of their
children within two years. Id., at 2. To encourage that
effort, the Department permitted consular officials to issue
reports attesting that the parents of U. S. citizens born
abroad had presented sufficient evidence of citizenship for their
children. Ibid. The 1960’s brought additional regulations of
consular reports of birth abroad, 31 Fed. Reg. 13538 (1966), which
continue in a substantially similar form to this day. See 22 CFR
§§50.5, 50.7 (2014). As currently issued, the consular report of
birth abroad includes the applicant’s name, sex, place of birth,
date of birth, and parents. It has had the “same force and effect
as proof of United States citizenship as [a] certificat[e] of
naturalization” since 1982. §117, 96Stat. 279.

															Thus, although registration is no longer
required to maintain birthright citizenship, the consular report of
birth abroad remains the primary means by which children born
abroad may obtain official acknowledgement of their citizenship.
See 22 CFR §51.43. Once acknowledged as U. S. citizens, they
need not pursue the naturalization process to obtain the rights and
privileges of citizenship in this country. Regulation of the report
is thus “appropriate” and “plainly adapted” to the exercise of the
naturalization power. See Comstock , 560 U. S., at 161
(Thomas, J., dissenting).

															By contrast, regulation of the report bears no
relationship to the President’s residual foreign affairs power. It
has no historical pedigree uniquely associated with the President,
contains no communication directed at a foreign power, and is
primarily used for domestic purposes. To the extent that a citizen
born abroad seeks a document to use as evidence of his citizenship
abroad, he must obtain a passport. See generally 7 FAM §1311.

															Because regulation of the consular report of
birth abroad is justified as an exercise of Congress’ powers under
the Naturalization and Necessary and Proper Clauses and does not
fall within the President’s foreign affairs powers, §214(d)’s
treatment of that document is constitutional.[ 8 ]

															III

															The majority does not perform this analysis,
but instead relies on a variation of the recognition power. That
power is among the foreign affairs powers vested in the President
by Article II’s Vesting Clause, as is confirmed by Article II’s
express assignment to the President of the duty of receiving
foreign Ambassadors, Art. II, §3. But I cannot join the
majority’s analysis because no act of recognition is implicated
here.[ 9 ]

															Under international law, “recognition of a state
signifies acceptance of its position within the international
community and the possession by it of the full range of rights and
obligations which are the normal attributes of statehood.” 1
Oppenheim’s International Law §47, 158 (R. Jennings & A. Watts
eds., 9th ed. 1992) (footnote omitted) (Oppenheim).[ 10 ] It can be accomplished expressly or
implicitly, but the key is to discern a clear intention on the part
of one state to recognize another. Id. , §50, at 169.
Important consequences are understood to flow from one state’s
recognition of another: The new state, for instance, acquires the
capacity to engage in diplomatic relations, including the
negotiation of treaties, with the recognizing state. Id. ,
§47, at 158. The new state is also entitled to sue in, invoke
sovereign immunity from, and demand acceptance of official acts in
the courts of the recognizing state. Ibid. ; see also I.
Brownlie, Principles of Public International Law 95–96 (7th ed.
2008).

															Changes in territory generally do not affect the
status of a state as an international person. Oppenheim §57, at
204–205. France, for example, “has over the centuries retained its
identity although it acquired, lost and regained parts of its
territory, changed its dynasty, was a kingdom, a republic, an
empire, again a kingdom, again a republic, again an empire, and is
now once more a republic.” Ibid. “Even such loss of
territory as occasions the reduction of a major power to a lesser
status does not affect the state as an international person.” Id. , §57, at 205. Changes that would affect the
status as an international person include the union of two separate
international persons or a partial loss of independence. Id. , §58, at 206.

															Assuming for the sake of argument that listing a
non-recognized foreign sovereign as a citizen’s place of birth on a
U. S. passport could have the effect of recognizing that
sovereign under international law, no such recognition would occur
under the circumstances presented here. The United States has
recognized Israel as a foreign sovereign since May 14, 1948.
Statement by the President Announcing the Recognition of the State
of Israel, Public Papers of the Presidents, Harry S. Truman, p. 258
(1964). That the United States has subsequently declined to
acknowledge Israel’s sovereignty over Jerusalem has not changed its
recognition of Israel as a sovereign state. And even if the United
States were to acknowledge Israel’s sovereignty over Jerusalem,
that action would not change its recognition of Israel as a
sovereign state. That is because the United States has already
afforded Israel the rights and responsibilities attendant to its
status as a sovereign State. Taking a different position on the
Jerusalem question will have no effect on that
recognition.[ 11 ]

															Perhaps recognizing that a formal recognition is
not implicated here, the majority reasons that, if the Executive’s
exclusive recognition power “is to mean anything, it must mean that
the President not only makes the initial, formal recognition
determination but also that he may maintain that determination in
his and his agent’s statements.” Ante, at 26. By “alter[ing]
the President’s statements on matters of recognition or forc[ing]
him to contradict them,” the majority reasons, “Congress in effect
would exercise the recognition power.” Ante , at 27. This
argument stretches the recognition power beyond all recognition.
Listing a Jerusalem-born citizen’s place of birth as “Israel”
cannot amount to recognition because the United States already
recognizes Israel as an international person. Rather than adopt a
novel definition of the recognition power, the majority should have
looked to other foreign affairs powers in the Constitution to
resolve this dispute.

															*  *  *

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