zivotofsky parents guardians zivotofsky et ux kerry secretary state argued november decided june petitioner zivotofsky born citizens living jerusalem pursuant foreign relations authorization act fiscal year mother asked american embassy officials list place birth israel inter alia passport section purposes registration birth certification nationality issuance passport citizen born city jerusalem secretary shall upon request citizen citizen legal guardian record place birth israel embassy officials refused list zivotofsky place birth israel passport citing executive branch longstanding position recognize country sovereignty jerusalem zivotofsky parents brought suit behalf federal seeking enforce ultimately circuit held statute unconstitutional concluding contradicts executive branch exclusive power recognize foreign sovereigns held president exclusive power grant formal recognition foreign sovereign pp president action incompatible expressed implied congress president rely authority upon constitutional powers minus constitutional powers congress matter youngstown sheet tube sawyer jackson concurring asserted power must exclusive conclusive issue may rely solely powers constitution grants alone determine whether president power recognition exclusive examines constitution text structure relevant precedent history pp constitution text structure grant president power recognize foreign nations governments reception clause directs president shall receive ambassadors public ministers art ii time founding receiving ambassador considered tantamount recognizing sending state sovereignty thus logical proper infer reception clause understood acknowledge president power recognize nations inference supported president additional article ii powers negotiate treaties nominate nation ambassadors dispatch diplomatic agents though ratifying treaty confirming ambassador require congressional approval congress lacks authority initiate actions without president involvement president unlike congress also power open diplomatic channels simply engaging direct diplomacy foreign heads state ministers constitution thus assigns president congress means effect recognition initiative functional considerations also suggest president recognition power exclusive nation must speak one voice regarding governments legitimate eyes american insurance assn garamendi executive characteristic unity times unlike congress president also capable engaging delicate often secret diplomatic contacts may lead recognition decision see pink better positioned take decisive unequivocal action necessary recognize international law president also exercised unilateral recognition power since founding practice endorsed see banco nacional de cuba sabbatino basic principles congress central role making laws see art cl substantial authority regarding many policy determinations precede follow act recognition president recognition determination thus one part political process pp fair reading relevant precedent illustrates long considered recognition exclusive prerogative executive see williams suffolk ins pet belmont pink supra banco nacional de cuba sabbatino supra national city bank republic china export support broader definition executive power foreign relations permit president alone determine whole content nation foreign policy executive free ordinary controls checks congress merely foreign affairs issue see medellín texas nonetheless president alone make specific decision foreign power recognize legitimate position must clear pp weight historical evidence also indicates congress accepted recognition power exclusive presidency cf nlrb noel canning since first administration president claimed unilateral authority recognize foreign sovereigns congress part acquiesced generally respecting executive policies positions formal recognition even defending president constitutional prerogative pp power recognize foreign resides president alone infringes executive consistent decision withhold recognition respect jerusalem see nixon administrator general services provision forces president secretary state identify upon request citizens born jerusalem born israel matter policy neither israel country acknowledged sovereignty jerusalem recognition power mean anything must mean president makes initial formal recognition determination also may maintain determination agent statements international law recognition may effected written oral declaration addition act recognition must leave doubt intention grant thus congress alter president statements matters recognition force contradict congress effect exercise recognition power exclusive presidential power disabl es congress acting upon subject youngstown supra jackson concurring congress may pass law speaking voice effecting formal recognition may force president contradict prior recognition determination official document issued secretary state see urtetiqui pet section flaw underscored fact statute purpose infringe president exclusive recognition power congress may power enact passport legislation wide scope may aggrandiz power expense another branch requiring president contradict earlier recognition determination official executive branch document freytag commissioner pp affirmed kennedy delivered opinion ginsburg breyer sotomayor kagan joined breyer filed concurring opinion thomas filed opinion concurring judgment part dissenting part roberts filed dissenting opinion alito joined scalia filed dissenting opinion roberts alito joined opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press menachem binyamin zivotofsky parents guardians ari naomi siegman zivotofsky petitioner john kerry secretary state writ certiorari appeals district columbia circuit june justice kennedy delivered opinion delicate subject lies background case subject jerusalem questions touching upon history ancient city present legal international status among difficult complex international affairs constitutional system matters committed legislature executive judiciary result opinion must note existence international debate tensions respecting jerusalem matters congress president discuss consider seek shape nation foreign policies addresses two questions resolve interbranch dispute first must determine whether president exclusive power grant formal recognition foreign sovereign second power must determine whether congress command president secretary state issue formal statement contradicts earlier recognition statement question congressional mandate allows citizen born jerusalem direct president secretary state issuing passport state place birth israel jerusalem political standing long remains one sensitive issues american foreign policy indeed one delicate issues current international affairs president truman formally recognized israel signed statement recognition see statement president announcing recognition state israel public papers presidents may statement recognize israeli sovereignty jerusalem last years various actors sought assert full partial sovereignty city including israel jordan palestinians yet contrast consistent policy formal recognition israel neither president truman later president issued official statement declaration acknowledging country sovereignty jerusalem instead executive branch maintained status jerusalem decided unilaterally consultation concerned nations gen assembly official records emergency plenary meetings nations doc tlrvirgul july see remarks president obama address nations gen assembly daily comp pres doc ultimately israelis palestinians us must reach agreement issues divide including jerusalem letter congress state warren christopher expressed executive concern issue related negotiations sensitive jerusalem see cong rec letter robert dole majority leader june noted executive opinion effort bring forefront damaging success peace process ibid president position jerusalem reflected state department policy regarding passports consular reports birth abroad understanding passports construed reflections american policy state department foreign affairs manual instructs employees general record place birth passport country present sovereignty actual area birth dept state foreign affairs manual fam citizen objects country listed sovereign state department may list city town birth rather country see fam however allow citizens list sovereign conflicts executive branch policy see generally recognize country sovereignty jerusalem fam instructs employees record place birth citizens born jerusalem emphasis deleted congress passed act issue foreign relations authorization act fiscal year stat section act titled policy respect jerusalem capital israel subsection lies heart case addresses passports subsection seeks override fam allowing citizens born jerusalem list place birth israel titled record place birth israel passport purposes purposes registration birth certification nationality issuance passport citizen born city jerusalem secretary shall upon request citizen citizen legal guardian record place birth israel signed act law president george bush issued statement declaring position construed mandatory rather advisory impermissibly interfere president constitutional authority formulate position speak nation international affairs determine terms recognition given foreign statement signing foreign relations authorization act fiscal year public papers presidents george bush vol president concluded policy regarding jerusalem changed ibid parties reassured president statement cable consulate jerusalem noted palestine liberation organization executive committee fatah central committee palestinian authority cabinet issued statements claiming act role sponsor peace process app gaza strip elsewhere residents marched protest see associated press reuters palestinians stone police guarding western wall seattle times response secretary state advised diplomats express understanding jerusalem importance sides many others around world app noted belief america policy towards jerusalem changed ibid petitioner menachem binyamin zivotofsky born citizens living jerusalem app december zivotofsky mother visited american embassy tel aviv request passport consular report birth abroad son asked place birth listed israel ibid embassy clerks explained pursuant state department policy passport list jerusalem ibid zivotofsky parents objected guardians brought suit behalf district district columbia seeking enforce pursuant zivotofsky claims right israel recorded place birth passport see zivotofsky clinton slip hile zivotofsky originally asked israel recorded passport oth sides agree question whether entitles arguments zivotofsky brief center passport claim opposed consular report birth abroad indeed zivotofsky waived argument consular report birth abroad treated differently passport zivotofsky secretary state cadc also waived issue failing differentiate two documents result addresses zivotofsky passport arguments need engage separate analysis validity applied consular reports birth abroad zivotofsky brought suit district dismissed case reasoning presented nonjusticiable political question zivotofsky lacked standing app appeals district columbia circuit reversed standing issue zivotofsky secretary state later affirmed district political question determination see zivotofsky secretary state granted certiorari vacated judgment remanded case whether constitutional held question reserved political branches reference zivotofsky claim observed judiciary must decide zivotofsky interpretation statute correct whether statute constitutional whether jerusalem fact part israel zivotofsky clinton supra slip remand appeals held statute unconstitutional determined president exclusively holds power determine whether recognize foreign sovereign section directly contradicts carefully considered exercise executive branch recognition power granted certiorari ii considering claims presidential power refers justice jackson familiar tripartite framework youngstown sheet tube sawyer concurring opinion framework divides exercises presidential power three categories first president acts pursuant express implied authorization congress authority maximum includes possesses right plus congress delegate second absence either congressional grant denial authority zone twilight congress may concurrent authority congressional inertia indifference quiescence may invite exercise executive power finally president takes measures incompatible expressed implied congress rely upon constitutional powers minus constitutional powers congress matter ibid succeed third category president asserted power must exclusive conclusive issue case secretary contends infringes president exclusive recognition power requiring president contradict recognition position regarding jerusalem official communications foreign sovereigns brief respondent secretary acknowledges president power lowest ebb youngstown president refusal implement falls justice jackson third category claim must scrutinized caution may rely solely powers constitution grants alone determine whether president possesses exclusive power recognition examines constitution text structure well precedent history bearing question recognition formal acknowledgement particular entity possesses qualifications statehood particular regime effective government state restatement third foreign relations law comment may also involve determination state territorial bounds see whiteman digest international law whiteman tates may recognize decline recognize territory belonging sovereignty acquired lost recognition often effected express written oral declaration moore digest international law moore may also example concluding bilateral treaty sending receiving diplomatic agents ibid brownlie principles public international law ed brownlie legal consequences follow formal recognition recognized sovereigns may sue courts see guaranty trust may benefit sovereign immunity sued see national city bank republic china actions recognized sovereign committed within territory also receive deference domestic courts act state doctrine see oetjen central leather recognition international law furthermore precondition regular diplomatic relations moore recognition thus useful even necessary existence state ibid despite importance recognition power foreign relations constitution use term recognition either article ii elsewhere secretary asserts president exercises recognition power based reception clause directs president shall receive ambassadors public ministers art ii zivotofsky notes reception clause received little attention constitutional convention see reinstein recognition case study original understanding executive power rich rev fact ratification debates alexander hamilton claimed power receive ambassadors matter dignity authority ministerial duty largely without consequence federalist rossiter ed time founding however prominent international scholars suggested receiving ambassador tantamount recognizing sovereignty sending state see de vattel law nations chitty ed state truly possessed sovereignty right send ambassadors contest right instance equivalent contesting sovereign dignity see also van bynkershoek questions public law frank ed among writers public law usually agreed sovereign power right send ambassadors grotius law war peace kelsey ed discussing duty admit ambassadors sovereign powers logical proper inference clause directing president alone receive ambassadors understood acknowledge power recognize nations fact occurred early nation history president washington recognized french revolutionary government receiving ambassador see hamilton pacificus letters pacificus helvidius reprint president acknowledged republic france reception minister incident import reception clause became clear causing hamilton change earlier view wrote reception clause includes th power judging case revolution government foreign country whether new rulers competent organs national recognised see see also story commentaries constitution executive receives ambassador minister representative new nation acknowledgment sovereign authority de facto new nation party result reception clause provides support although sole authority president power recognize nations inference president exercises recognition power supported additional article ii powers president advice consent senate make treaties provided two thirds senators present concur art ii cl addition shall nominate advice consent senate shall appoint ambassadors well public ministers consuls ibid matter constitutional structure additional powers give president control recognition decisions international law recognition may effected different means means dependent upon presidential power addition receiving ambassador recognition may occur conclusion bilateral treaty formal initiation diplomatic relations including dispatch ambassador brownlie see also moore president sole power negotiate treaties see export senate may conclude ratify treaty without presidential action president nominates nation ambassadors dispatches diplomatic agents congress may send ambassador without involvement beyond president power open diplomatic channels simply engaging direct diplomacy foreign heads state ministers constitution thus assigns president means effect recognition initiative congress contrast constitutional power enable initiate diplomatic relations foreign nation specific clauses confer recognition power president need consider whether extent vesting clause provides executive power shall vested president provides support president action art ii cl text structure constitution grant president power recognize foreign nations governments question becomes whether power exclusive various ways president may unilaterally effect recognition lack similar power vested congress suggest functional considerations put simply nation must single policy regarding governments legitimate eyes foreign countries need know entering diplomatic relations commerce whether ambassadors received whether officials immune suit federal whether may initiate lawsuits vindicate rights assurances equivocal recognition topic nation must one voice american ins assn garamendi quoting crosby national foreign trade council voice must president two political branches executive characteristic unity times unity comes ability exercise greater degree ecision activity secrecy dispatch federalist hamilton president capable ways congress engaging delicate often secret diplomatic contacts may lead decision recognition see pink also better positioned take decisive unequivocal action necessary recognize international law oppenheim international law jennings watts ed act recognition must leave doubt intention grant qualities explain framers listed traditional avenues recognition receiving ambassadors making treaties sending ambassadors among president article ii powers described detail president since founding exercised unilateral power recognize new endorsed practice see banco nacional de cuba sabbatino pink supra williams suffolk ins pet texts treatises international law treat president word final word recognition see restatement third foreign relations law constitution president exclusive authority recognize recognize foreign state government see also henkin foreign affairs constitution ed longer questioned president merely perform ceremony receiving foreign ambassadors also determines whether recognize refuse recognize foreign government light authority six judges considered case appeals agreed president holds exclusive recognition power see conclude president exclusively holds power determine whether recognize foreign sovereign zivotofsky power belongs solely president clear earliest days republic edwards concurring executive exclusive unreviewable authority recognize foreign sovereigns remains true course many decisions affecting foreign relations including decisions may determine course relations recognized countries require congressional action congress may regulate commerce foreign nations establish uniform rule naturalization define punish piracies felonies committed high seas offences law nations declare war grant letters marque reprisal make rules government regulation land naval forces art addition president make treaty appoint ambassador without approval senate art ii cl president furthermore build american embassy abroad without congressional appropriation necessary funds art cl basic principles congress enact laws including laws shall necessary proper carrying execution powers federal government cl foreign affairs domestic realm constitution enjoins upon branches separateness interdependence autonomy reciprocity youngstown jackson concurring although president alone effects formal act recognition congress powers central role making laws give substantial authority regarding many policy determinations precede follow act recognition congress disagrees president recognition policy may consequences formal recognition may seem hollow act accompanied dispatch ambassador easing trade restrictions conclusion treaties decisions require action senate whole congress practice president recognition determination one part political process may require congress make laws president exclusive recognition power encompasses authority acknowledge formal sense legitimacy governments including territorial bounds albeit limited exclusive recognition power essential conduct presidential duties formal act recognition executive power congress may qualify president effective negotiations formal recognition determination must evident counterparts abroad speaks nation precise question clear rule formal power recognize foreign government subsists president therefore serves necessary purpose diplomatic relations course underscores congress important role aspects foreign policy president may bound number laws congress enacts way ambition counters ambition ensuring democratic people observed respected foreign affairs domestic realm see federalist madison single precedent resolves question whether president exclusive recognition authority far power extends part today political branches resolved disputes questions recognition relevant cases though providing important instruction address division recognition power federal government see pink courts political branches see banco nacional de cuba president congress parties acknowledge isolated statements cases lend support position congress role recognition process end however fair reading cases shows president role recognition process central exclusive administration president van buren case involving dispute status falkland islands noted executive branch government assumes fact regard sovereignty island country conclusive judicial department williams president made determination enough know exercise constitutional functions decided question done responsibilities belong obligatory people government union ibid later addressed issues surrounding president roosevelt decision recognize soviet government russia belmont pink new york state courts declined give full effect terms executive agreements president concluded negotiations recognition soviet regime particular state courts based new york public policy treat assets seized soviet government property russia declined turn assets stated may doubted recognition establishment diplomatic relations agreements respect thereto within competence president belmont matters executive ha authority speak sole organ th government ibid added president authority limited determination government recognized includes power determine policy govern question recognition pink supra see also guaranty trust political department action recognizing foreign government receiving diplomatic representatives conclusive domestic courts thus new york state courts required respect executive agreements true course belmont pink direct holdings recognition power exclusive cases considered validity executive agreements initial act recognition president determination cases contradict act congress primary issue whether executive agreements supersede state law still language pink belmont confirms president competence determine questions recognition strong support conclusion president alone determine foreign governments legitimate banco nacional de cuba contains even stronger statements regarding president authority recognition status cuba government acts sovereign issue explained political recognition exclusively function executive executive recognized cuban government held treated sovereign benefit act state doctrine see also baker carr executive determines person status representative foreign government national city bank status republic china courts matter determination executive outside competence cases illustrate long considered recognition exclusive prerogative executive secretary urges define executive power foreign relations even broader terms contends precedent president exclusive authority conduct diplomatic relations along bulk powers brief respondent support submission president broad undefined powers foreign affairs secretary quotes export described president sole organ federal government field international relations declines acknowledge unbounded power formulation broader rule president alone determines nations formally recognize legitimate consequently controls statements matters recognition presents different issues unnecessary resolution case case extend far secretary suggests considered whether congressional delegation power president constitutional congress passed joint resolution giving president discretion prohibit arms sales certain militant powers south america resolution provided criminal penalties violation orders held delegation constitutional reasoning congress may grant president substantial authority discretion field foreign affairs describing broad delegation may appropriate opinion stated vast external realm important complicated delicate manifold problems president alone power speak listen representative nation makes treaties advice consent senate alone negotiates field negotiation senate intrude congress powerless invade marshall said great argument march house representatives president sole organ nation external relations sole representative foreign nations annals cong description president exclusive power necessary holding dealt congressionally authorized action unilateral presidential determination indeed hold president free congress lawmaking power field international relations president unique role communicating foreign governments john marshall acknowledged see annals cong cited supra whether realm foreign domestic still legislative branch executive branch makes law world ever compressed interdependent essential congressional role foreign affairs understood respected congress makes laws countless ways laws shape nation course executive free ordinary controls checks congress merely foreign affairs issue see medellín texas youngstown little barreme cranch glennon two views presidential foreign affairs power little barreme yale cf dames moore regan president alone determine whole content nation foreign policy said judicial precedent historical practice teach president alone make specific decision foreign power recognize legitimate nation whole purpose making position clear within context recognition discussions negotiations foreign nations recognition act immediate powerful significance international relations president position must clear congress require contradict statement regarding determination formal recognition zivotofsky contrary arguments unconvincing decisions relies upon largely inapposite cases hold recognition power shared jones boumediene bush addressed status territories controlled acquired whether province recognized part foreign country see also connell etermination american sovereignty area legislative executive departments one disputes congress role determining status territories see art iv cl congress may dispose make needful rules regulations respecting territory property belonging cases describing shared power address recognition indian tribes similarly distinct issue recognition foreign countries see cherokee nation georgia pet sure mentioned political branches discussing international recognition done primarily affirming judiciary responsible recognizing foreign nations see oetjen sovereign de jure de facto territory judicial political question determination legislative executive departments government conclusively binds quoting jones supra palmer wheat courts union must view newly constituted government viewed legislative executive departments government consistent fact congress ordinary course support president recognition policy instance confirming ambassador recognized foreign government cases cast doubt view executive branch determines whether recognize foreign governments territorial bounds examined constitution text precedent appropriate turn accepted understandings practice cases often put significant weight upon historical practice nlrb noel canning slip emphasis deleted history one side balance provides strong support conclusion recognition power president alone zivotofsky argues certain historical incidents interpreted support position recognition shared power weight historical evidence supports opposite view formal determination recognition power exercised president briefs parties amici considerable assistance give complete account relevant history works scholars field see brief respondent brief petitioner brief american jewish committee amicus curiae goebel recognition policy goebel moore reinstein president recognition power exclusive temp rev even brief survey major historical examples emphasis said favor zivotofsky establishes presidents chosen cooperate congress congress exercised recognition power first administration forward president claimed unilateral authority recognize foreign sovereigns part congress acquiesced executive exercise recognition power occasion president chosen may often prudent consult coordinate congress judge tatel noted case however striking thing history recognition absent situation like one congress enacted statute contrary president formal considered statement concerning recognition concurring opinion first debate recognition power arose france torn revolution see prakash ramsey executive power foreign affairs yale revolutionary government established secretary state jefferson president washington without consulting congress authorized american ambassador resume relations new regime see letter gouverneur morris mar papers thomas jefferson catanzariti ed goebel soon thereafter new french government proposed send ambassador citizen genet see members president cabinet agreed receiving genet binding public act recognition see opinion treaties france apr papers thomas jefferson reception minister ackno le gement legitimacy government see also letter hamilton washington cabinet paper apr works alexander hamilton lodge ed decided however genet received consultation congress necessary see jefferson anas apr writings thomas jefferson ford ed cabinet opinion washington questions neutrality alliance france apr papers thomas jefferson congress expressed disagreement position genet reception marked nation first act recognition one made president alone see prakash supra recognition power became relevant yet another revolution took place time south america several colonies rose spain speaker house henry clay announced intended moving recognition buenos ayres probably chile goebel clay thus sought appropriate money one year argentina annals cong president monroe however share view although clay gave one remarkable speeches career proposed bill defeated goebel annals cong action attributed part fact congress agreed recognition power rested solely president goebel see annals cong statement alexander smyth acknowledgment independence new power exercise executive authority consequently congress direct executive shall exercise power act usurpation four years later president decided recognize south american republics congress pass resolution request appropriating funds missions independent nations american continent president may deem proper act may ch stat decade later president jackson faced recognition crisis texas texas rebelled mexico formed government see goebel president feared recognizing new government ignite war see jackson senate house representatives messages papers presidents richardson ed congress urged recognize texas see cong globe sess president delivered message legislature concluded deliberate inquiry whether president congress possessed recognition power see jackson messages papers presidents stated however ground expediency disposed concur congress preference regarding texas ibid response congress appropriated funds diplomatic agent sent republic texas whenever president shall deem expedient appoint minister act mar stat thus although cooperated congress president left execute formal act recognition president lincoln sought coordinate congress requested support recognition liberia haiti first annual message congress said see reason persevere longer withholding recognition independence sovereignty hayti liberia lincoln first annual message congress messages papers presidents nonetheless nwilling inaugurate novel policy regard without approbation congress ibid response congress concurred president recognition determination enacted law appropriating funds appoint diplomatic representatives two countries leaving usual actual dispatch ambassadors formal statement recognition president act june stat three decades later branches able reach accord time regard cuba insurgency spanish colonial government raging cuba president mckinley determined ask congress authorization send armed forces cuba help quell violence see cong rec although mckinley thought spain blame strife opposed recognizing either cuba insurgent government first house proposed resolution consistent mckinley wishes senate countered resolution authorized use force recognize cuban independence insurgent government senate version reached house house rejected language recognizing cuban independence resolution went conference debate reached compromise see reinstein temp final resolution stated people island cuba right free independent made mention recognizing new cuban government act apr stat accepting compromise president signed joint resolution see reinstein temp next years residents consistently recognized new governments without serious opposition activity congress ibid see whiteman detailing recognition decisions made executive next debate recognition occur late concerned china president carter recognized people republic china prc government china derecognized republic china located taiwan see kan cong research evolution one china policy key statements washington beijing taipei status taiwan president acknowledge chinese position taiwan part china text joint communique establishment diplomatic relations accept claim president proposed new law defining conduct business taiwan see hearings taiwan legislation house committee foreign affairs statement warren christopher deputy secretary state extensive revisions congress passed president signed taiwan relations act stat codified amended act simplified summary treated taiwan legally distinct entity china entity intended maintain strong ties see throughout legislative process however one raised serious question regarding president exclusive authority recognize prc decline grant formal recognition taiwan see cong rec statement jacob javits neither bill proposed either chamber sought reestablish official relations republic china taiwan congress authority even wanted rather congress accepted president recognition determination completed lawful act proceeded outline trade policy provisions judgment appropriate light decision history confirms conclusion instant case power recognize decline recognize foreign state territorial bounds resides president alone part congress respected executive policies positions formal recognition times congress defended president constitutional prerogative last years scarcely debate president power recognize foreign respect legislature narrow context recognition balance acknowledged importance speaking one voice crosby weight historical evidence indicates congress accepted power recognize foreign governments territorial bounds exclusive presidency iii power recognize foreign resides president alone question becomes whether infringes executive consistent decision withhold recognition respect jerusalem see nixon administrator general services action unlawful prevents executive branch accomplishing constitutionally assigned functions section requires passport consular report birth abroad secretary shall upon request citizen citizen legal guardian record place birth israel citizen born city jerusalem stat requires president secretary identify citizens born jerusalem request born israel according president citizens born israel matter policy neither israel country acknowledged sovereignty jerusalem way directly contradicts carefully calibrated longstanding executive branch policy neutrality toward jerusalem power recognition mean anything must mean president makes initial formal recognition determination also may maintain determination agent statements conclusion matter common sense necessity congress command president state recognition position inconsistent congress override president recognition determination international law recognition may effected written oral declaration recognizing state moore addition act recognition must leave doubt intention grant oppenheim international law thus congress alter president statements matters recognition force contradict congress effect exercise recognition power justice jackson wrote youngstown presidential power exclusive disabl es congress acting upon subject concurring opinion subject quite narrow executive exclusive power extends formal recognition determination determination congress may enact law directly contradicts say congress may express disagreement president myriad ways example may enact embargo decline confirm ambassador even declare war none acts alter president recognition decision congress may pass law speaking voice effects formal recognition follows may force president contradict earlier statement congressional command prevent nation speaking one voice also prevent executive conducting foreign relations although statement required constitute formal act recognition mandate executive contradict prior recognition determination official document issued secretary state see urtetiqui pet passport nature object addressed foreign powers considered character political document result unconstitutional clear light longstanding treatment passport section official executive statement implicating recognition see tatel concurring secretary position point consistent place information section passport contradicts president recognition policy see fam citizen objects country listed sovereign place birth secretary accommodate listing city town birth rather country see secretary list sovereign contradicts president recognition policy passport thus secretary list israel passport country containing jerusalem flaw underscored undoubted fact purpose statute infringe recognition power power holds sole prerogative president statute titled policy respect jerusalem capital israel stat house conference report proclaimed contains four provisions related recognition jerusalem israel capital conf indeed observers interpreted altering policy regarding jerusalem led protests across region see supra face legislative history reception clear congress wanted express displeasure president policy among things commanding executive contradict earlier stated position jerusalem congress may true zivotofsky notes congress substantial authority passports see haig agee zemel rusk kent dulles question power congress enact passport legislation wide scope kent dulles example held person travel regulated passport must pursuant functions congress see later cases zemel rusk haig agee also proceeded assumption congress must authorize grounds passports may approved denied see zemel supra haig supra consistent extensive lawmaking power constitution vests congress nation foreign affairs problem however lies congress exercised authority passports improper act congress aggrandiz power expense another branch requiring president contradict earlier recognition determination official document issued executive branch freytag commissioner allow congress control president communication context formal recognition determination allow congress exercise exclusive power result statute unconstitutional holding invalid question substantial powers congress foreign affairs general passports particular case confined solely exclusive power president control recognition determinations including formal statements executive branch acknowledging legitimacy state government territorial bounds congress command president contradict earlier recognition determination issuance passports judgment appeals district columbia circuit affirmed breyer concurring menachem binyamin zivotofsky parents guardians ari naomi siegman zivotofsky petitioner john kerry secretary state writ certiorari appeals district columbia circuit june justice breyer concurring continue believe case presents political question inappropriate judicial resolution see clinton breyer dissenting precedent precludes resolving case political question grounds see majority opinion slip join opinion opinion thomas menachem binyamin zivotofsky parents guardians ari naomi siegman zivotofsky petitioner john kerry secretary state writ certiorari appeals district columbia circuit june justice thomas concurring judgment part dissenting part constitution allocates powers federal government foreign affairs two ways first expressly identifies certain foreign affairs powers vests particular branches either individually jointly second vests residual foreign affairs powers federal government specifically enumerated constitution president way article ii vesting clause section foreign relations authorization act fiscal year ignores constitutional allocation power insofar directs president contrary wishes list israel place birth citizens passports president long regulated passports residual foreign affairs power portion fall within congress enumerated powers contrast poses problem insofar regulates consular reports birth abroad unlike passports reports developed effectuate naturalization laws continue serve role identifying persons need naturalized obtain citizenship regulation reports fall within president foreign affairs powers within congress enumerated powers naturalization necessary proper clauses rather adhere constitution division powers relies distortion president recognition power hold parts unconstitutional join faulty analysis concur portion judgment holding unconstitutional applied passports respectfully dissent remainder judgment constitution specifies number foreign affairs powers divides political branches among others article allocates congress powers regulate commerce foreign nations establish uniform rule naturalization define punish piracies felonies committed high seas offenses law nations declare war grant letters marque reprisal make rules concerning captures land water art part president certain express powers relating foreign affairs including powers advice consent senate appoint ambassadors make treaties provided two thirds senators present concur art ii also assigned certain duties respect foreign affairs including serving commander chief army navy receiv ing ambassadors public ministers art ii specific allocations however account entirety foreign affairs powers exercised federal government neither political branches expressly authorized instance communicate foreign ministers issue passports repel sudden attacks yet president engaged conduct support congress since earliest days republic prakash ramsey executive power foreign affairs yale prakash ramsey president longstanding practice exercising unenumerated foreign affairs powers reflects constitutional directive president ha primary responsibility along necessary power protect national security conduct nation foreign relations hamdi rumsfeld thomas dissenting specifically vesting clause article ii provides executive power shall vested president art ii clause notably different vesting clause article provides legislative powers herein granted shall vested congress art emphasis added omitting words herein granted article ii constitution indicates executive power vested president confined powers expressly identified document instead includes powers originally understood falling within executive power federal government evidence reveals executive power included foreign affairs powers sovereign state see prakash ramsey john locke writings laid groundwork understanding executive power locke described foreign affairs powers including powers war peace leagues alliances transactions persons communities without commonwealth federative power second treatise civil government gough ed defined executive power comprehending execution municipal laws society within upon parts importantly however locke explained federative executive powers must lodged together lest disorder ruin erupt division force public subsequent thinkers began refer powers aspects executive power william blackstone example described executive power england including foreign affairs powers power sending embassadors foreign embassadors home making treaties leagues alliances foreign princes making war peace issu ing letters marque reprisal commentaries laws england blackstone baron de montesquieu similarly described executive power including power mak peace war sen receiv embassies establis public security provid invasions spirit laws bk xi ch piest nugent transl fact writers montesquieu tim ere inclined think executive branch government concerned nearly entirely foreign affairs gwyn meaning separation powers understanding executive power prevailed america following independence congress assumed control foreign affairs articles confederation see articles confederation art ix cl time many understood control exercise executive power see prakash ramsey letters among members continental congress instance repeatedly referred department foreign affairs established control continental congress executive departmen officers ministers nn similarly essex result influential report proposed constitution massachusetts described executive power including external internal powers external executive power comprehends war peace sending receiving ambassadors whatever concerns transactions state independent state internal executive power employed peace security protection subject property essex result popular sources political authority documents massachusetts constitution pp handlin handlin eds view executive power widespread time framing constitution thomas rutherforth institutes natural law treatise routinely cited founders mcdowell limits natural law thomas rutherforth american legal tradition juris explained external executive power includes properly called military power power likewise making war peace power engaging alliances encrease strength power entering treaties making leagues restore peace power adjusting rights nation respect navigation trade institutes natural law ratification debates james wilson likewise referred executive powers government including external powers nation elliot debates several state conventions adoption federal constitution alexander hamilton writing publius asserted actual conduct foreign negotiations arrangement army navy directions operations war matters like nature executive details fal peculiarly within province executive department federalist pp rossiter ed given pervasive view executive power unsurprising ratified constitution understood executive power vested article ii include foreign affairs powers otherwise allocated constitution james iredell example told north carolina ratifying convention new constitution president regulate intercourse foreign powers act primary agent though specific allocation foreign affairs powers document provided elliot supra alexander hamilton presumed much argued nergy created constitution executive essential protection community foreign attacks even though specific allocation foreign affairs powers provided executive repel assaults see federalist statements confirm executive power vested president article ii includes residual foreign affairs powers federal government otherwise allocated early practice founding generation also supports understanding executive power upon taking office president washington assumed role chief diplomat began direct secretary foreign affairs articles confederation reported congress established foreign policy prakash ramsey time respected congress prerogatives declare war regulate foreign commerce appropriate funds part congress recognized broad presidential role foreign affairs created executive department called department foreign affairs secretary wholly subordinate president act establishing executive department denominated department foreign affairs stat enabling act provided secretary perform execute duties shall time time enjoined intrusted president including relative correspondences commissions instructions public ministers consuls negotiations public ministers foreign princes memorials applications foreign public ministers foreigners matters respecting foreign affairs referring duties president shall assign said department act presumed president inherently possessed power engage tasks subsequent interactions president washington congress indicated parties involved believed constitution vested president authority regulate dealings foreign nations first state union address president washington told congress interests require intercourse nations facilitated provisions enable fulfil duty respect first annual message george washington collection allen ed end asked compensation employees fund designated defraying expenses incident conduct foreign affairs ibid congress responded passing act providing means intercourse foreign nations ch stat congressional debate bill president sought opinion thomas jefferson time secretary state scope senate power area jefferson responded transaction business foreign nations executive altogether opinion powers senate apr writings thomas jefferson ford ed jefferson concluded properly belonged head executive department except portions specially submitted senate ibid according washington diaries received similar advice john jay james madison propriety consulting senate places necessary send persons diplomatic line consuls diaries george washington jackson twohig eds agreed senate lacked constitutional right interfere either might impolitic draw precedent powers extending farther approbation disapprobation person nominated president rest executive vested president constitution ibid washington followed advice corresponded directly ministers moved among countries removed positions prakash ramsey also corresponded foreign leaders representing role executive authorized receive respond letters behalf foreign ministers addressed communications congress informed error washington control foreign affairs extended beyond communications governments confronted question whether recognize french republic lawful government france received french republic emissary without involvement congress later concluded emissary acted inappropriately acted without involvement congress ask french executive recall washington also declared neutrality behalf war england france see proclamation neutrality apr action hamilton pseudonymously defended proper exercise power vested president general grant executive power vesting clause pacificus june letters pacificus helvidius part congress applauded president decision annals cong short practices washington administration first congress confirm article ii vesting clause originally understood include grant residual foreign affairs power executive ii statutory provision issue implicates president residual foreign affairs power section instructs secretary state upon request citizen born jerusalem citizen legal guardian list citizen place birth israel passport consular report birth abroad even though undisputed position jerusalem part israel president argues provision violates foreign affairs powers generally recognition power specifically zivotofsky rejoins congress passed pursuant enumerated powers action must therefore take precedence neither quite right president constitutionally compelled implement applies passports passport regulation falls squarely within residual foreign affairs power zivotofsky identified source congressional power require president list israel place birth citizen born jerusalem citizen passport section however constitutionally applied reports birth abroad documents fall within president foreign affairs authority fall within congress enumerated powers legal tradition passports consistently issued controlled body exercising executive power england king colonies continental congress president washington every president since historically passports classed documents known safe conducts letters protection person enemy might rendered safe inviolable hunt dept state american passport history letters safe conduct passports performed different functions england grew king prerogative regulate nation intercourse foreign nations see blackstone king issued letters safe conduct times war whereas passports heirs tradition requiring king license depart country see richard ii calendar close rolls pp turner privy council england seventeenth eighteenth centuries see also diplock passports protection international law grotius society transactions year problems public private international law safe conducts passports use time founding passports given greater security ordinary occasions persons meet special interference going coming whereas given persons otherwise enter safety dominions sovereign granting de vattel law nations ed fenwick transl emphasis deleted issued person exercising external sovereign power state see absence separate executive branch government continental congress issued passports american revolution see resolution may journals continental congress resolution may congress articles confederation see discussing authority issue passports war power ratification constitution president washington immediately took responsibility issuing passports hunt supra although ast practice create power governmental practice open widespread unchallenged since early days republic guide interpretation ambiguous constitutional provision nlrb noel canning scalia concurring judgment slip alteration original internal quotation marks omitted history president passport regulation country one practice ratification end civil war president issued passports without authorization congress department state later remarked absence law upon subject issuing passports americans going abroad naturally fell department state one manifestly proper functions hunt supra end secretary authority entirely discretionary urtetiqui pet congress acted support authority criminalizing violat ion passport duly obtained issued authority act punishment certain crimes stat congress purported authorize president issue passports even statute provided passports issued rules president shall designate prescribe behalf act regulate diplomatic consular systems stat president continued designate prescribe rules passports ever since president power regulate passports residual foreign affairs powers however end matter congress repeatedly legislated subject passports laws always narrow scope example congress enacted laws prohibiting issuance passports noncitizens created exception rule persons liable military duty act mar stat eliminated exception act may ch stat passed laws regulating fees state department impose issuance passports act may ch stat act june stat act june ch title ix stat act stat act mar stat also enacted legislation addressing duration passports may remain valid stat pub stat pub stat act july stat passed laws imposing criminal penalties false statements made applying passports along misuse passports counterfeiting forgery act june stat act mar stat stat congressional action however legislation constitutionally permissible insofar promulgated pursuant one congress enumerated powers must therefore address whether congress constitutional authority enact regulation passports zivotofsky congressional amici identify three potential sources congressional power enact portion dealing passports zivotofsky first argues falls within congress power regulate issuance content passports brief petitioner senate amicus curiae likewise contends justified congress plenary authority passports derives penumbras powers regulate commerce foreign establish uniform rule naturalization brief senate quoting art cls none arguments withstands scrutiny constitution contains passport clause explicitly vest congress plenary authority passports government one enumerated powers congress power act unless constitution authorizes comstock thomas dissenting constitution plainly sets forth defined powers congress may exercise ibid passport power one section passport directive fares better powers actually included article start fall within power regulate commerce foreign nations time original constitution ratified consisted selling buying bartering well transporting purposes lopez thomas concurring listing place birth applicant whether born jerusalem involve selling buying bartering transporting purposes cf morrison ur cases upheld commerce clause regulation intrastate activity power regulate commerce among several activity economic nature true passport frequently used persons may intend engage commerce abroad use insufficient bring passport directive within scope power specific conduct issue listing birthplace citizen born jerusalem passport president commercial activity commercial activities subsequently undertaken bearer passport yet removed regulation power establish uniform rule naturalization similarly unavailing founding word naturalization meant act investing aliens privileges native subjects johnson dictionary english language ed see also dyche pardon new general english dictionary making foreigner alien denizen freeman kingdom city becoming subject native king country nature belong passport never issued part naturalization process always travel document dept state foreign affairs manual fam issued purpose always served request one sovereign another protection bearer see supra similar reasons necessary proper clause gives congress authority clause provides congress shall power make laws shall necessary proper carrying execution foregoing powers powers vested constitution government department officer thereof art cl initial matter congress lacks authority legislate provision objective anything execution one federal government enumerated powers comstock supra thomas dissenting end must legitimate constitutional structure mcculloch maryland wheat even objective law carrying execution one federal government enumerated powers law must necessary proper objective clause warrant congress enact law bears conceivable connection exercise enumerated power gonzales raich thomas dissenting instead must necessary proper fit federal law enumerated power powers designed serve comstock supra thomas dissenting means chosen congress deemed adapted exercise enumerated power otherwise constitution consistent spirit alteration original argument applied passports exercise congress power carry execution foreign commerce naturalization powers falters aspect directed neither ends served powers although high level generality passport related foreign commerce naturalization attenuated relationship insufficient law question must directly link ed enumerated power applied passports fails test congress foreign commerce naturalization powers bears tertiary relationship activity congress permitted regulate directs president formulation document turn may used facilitate travel turn may facilitate foreign commerce distinctive history passport travel rather citizenship document makes connection naturalization even tenuous aspect justified exercise congress power enact laws carry execution president residual foreign affairs powers simply put passport directive proper means carrying power execution proper law must fall within peculiar competence congress constitution though proper susceptible several definitions time founding two plausible candidates use necessary proper clause accommodated adapted suitable qualified eculiar belonging common see johnson supra former render word necessary superfluous mcculloch supra ordinarily attempt give effect word constitution knowlton moore latter plausible particularly true constitution elsewhere uses term proper art art ii term necessary art art term necessary part phrase necessary expedient art ii thus best interpretation proper law must fall within peculiar jurisdiction congress constitutional structure imposes three key limitations jurisdiction must conform allocation authority within federal government allocation power federal government protections retained individual rights constitution see lawson granger proper scope federal power jurisdictional interpretation sweeping clause duke words proper law must consistent principles separation powers principles federalism individual rights commentators ratification debates treated proper meaning writing publius hamilton posed question judge necessity propriety laws passed executing powers union responded propriety law constitutional light must always determined nature powers upon founded federalist pp example law exceeded congress jurisdiction invaded authority meet standard similarly impartial citizen wrote virginia newspaper even governmental powers executed without aid law granting commercial monopolies inflicting punishments creating new crimes commanding unconstitutional act thus making law necessary execution power law manifestly proper warranted clause without absolutely departing usual acceptation words impartial citizen petersburg gazette documentary history ratification constitution kaminski saladino eds emphasis deleted early interpretations clause following ratification largely confirm view lawson granger supra debate bank first congress example representative ames declared correct construction necessary proper clause promotes good society ends government adopted without impairing rights man powers state annals cong second congress representative niles railed bill authorized federal mail carriers transport passengers hire order reduce cost mails said law proper power establish post offices post roads exclusive right carrying passengers hire interpretation word proper allow bill render nugatory deliberations constitution effectively vest congress general authority legislate every subject emphasis deleted comments presumed word proper imposed jurisdictional limit congressional activity evidence makes sense light framers efforts ensure separation powers reinforced checks balances practical real protectio individual liberty new constitution perez mortgage bankers thomas concurring judgment slip congress rely necessary proper clause exercise power expressly allocated branches prevent exercise power branches undermine constitutional allocation powers evidence thus points definition proper protects separation powers fully explain way proper requirement operates congress seeks facilitate exercise power allocated another branch see two potential mechanisms either may accurately reflect original understanding clause first law improper purports direct another branch exercise power see calabresi prakash president power execute laws yale clause allow congress tell constitutionally empowered actors implement exclusive powers second law improper takes one actions branch power allocated objects action see prakash ramsey congress general power legislate support president foreign policy goals ince derivative president power must exercised coordination opposition president need resolve question today application passports improper either approach president made determination place birth passport list country present sovereignty fam app president determined country presently exercising sovereignty area jerusalem thus president provided passports persons born jerusalem list jerusalem place birth passport section directs president exercise power issue regulate content passports particular way president objected direction either potential mechanism evaluating propriety law limitation law support argument president must enforce zivotofsky relies heavily similar statute addressing place birth designation persons born taiwan see foreign relations authorization act fiscal years stat statute provided purposes registration birth certification nationality citizen born taiwan secretary state shall permit place birth recorded taiwan ibid president adopted practice president decision adopt practice however says nothing constitutionality taiwan provision first place constitutional allocation powers depend views individual presidents whether encroached upon branch approves encroachment free enterprise fund public company accounting oversight citation internal quotation marks omitted argument presidential acquiescence particularly weak given taiwan statute consistent president longstanding policy taiwan time congress enacted statute foreign affairs manual permitted consular officials list city area birth passport birthplace applicant located territory disputed another country fam list city town rather country applicant birth objections listing shown birthplace guide president otherwise treats taiwan geographical area within people republic china listing taiwan place birth directly conflict president prevailing practices section conflict requires president list citizens born jerusalem born israel even though foreign affairs manual long prohibited action justice scalia locate congress power enact passport directive congress power necessary proper clause bring effect enumerated power naturalization post dissenting opinion initial matter asserts naturalization power enables congress furnish people makes citizens papers verifying citizenship post yet offers support interpretation clause terms grants congress power establish uniform rule naturalization art cl concludes congress grant documents may also require documents record birthplace pursuant power necessary proper clause post theory account president power act area confront difficult questions application necessary proper clause case conflict among branches justice scalia disapproves assertion broad unenumerated powers president post offers response interpretation words executive power constitution instead claims argued presidential primacy passports rejects position based two postratification english statutes early practice nonfederal actors issuing passports country congressional statutes already discussed enacted civil war post supra argue president possesses primary power passports need argue argue congress act according powers granted constitution circumstances question primacy arise event historical evidence cited justice scalia dissent conflict analysis president power area two postratification english statutes implicitly acknowledged passports issued executive officers exercise executive power see geo iii ch eng stat large geo iii ch eng stat large practice executive officials country confirms relationship addition neither piece historical evidence speaks scope congress power regulate passports federal system justice scalia final piece historical support increased congressional regulation passports following civil war perhaps point institutional perspective still resolve issue regulations already described narrow scope continued leave primary regulation content passports president draw inference historical practices ambiguous best might conflict original meaning executive power proper requirement necessary proper clause dubious way undertake constitutional analysis see noel canning scalia concurring judgment slip even dubious however cursory treatment necessary proper clause justice scalia dissent asserts acting pursuant clause congress may transcend boundaries upon legislative authority stated implied elsewhere constitution post offers explanation implied limits might operate example agree word proper requires congress act manner principles separation powers principles federalism individual supra quoting lawson grainger duke find requirement satisfied case views president constitutional authority act area views congress directive president consistent separation powers irrespective president authority latter perceives limitations congress acts carry execution one enumerated powers opposed enumerated powers another branch case textual structural historical evidence exists interpretation justice scalia dissent raises questions answers justice scalia dissent least answer view constitution resolve conflict political branches acting pursuant powers granted constitution believes congressional power trump conflict post see nothing constitution clearly mandates solution difficult question need opine find power congress lawfully enacted passport directive apart power necessary proper clause carry effect president powers offered textual historical support conclusion clause include power direct president exercise passport power finally justice scalia faults failing consider number potential sources congressional power argued parties ranging fourteenth amendment migration importation clause art cl territories clause art iv cl post one even justice scalia seriously contended provisions afford basis passport provision end justice scalia characterizes interpretation executive power naturalization power necessary proper clause producing presidency reminiscent george iii george washington post offers competing interpretation either article ii vesting clause necessary proper clause decision constitution resolution conflict among branches criticized creating legislative body reminiscent parliament england congress america president residual foreign affairs authority regulate passports appears congressional power justifies application passports zivotofsky challenge executive designation place birth passport must fail although consular report birth abroad shares features passport historically associated naturalization foreign affairs order establish uniform rule naturalization congress must able identify categories persons eligible naturalization along rules process congress thus always regulated acquisition citizenship born abroad american parents exercise power conferred constitution establish uniform rule naturalization wong kim ark see also miller albright scalia concurring judgment recognizing congress power set requirements acquisition citizenship persons born within territory determined children born abroad parents subject exceptions citizens need go naturalization process consular report birth abroad well suited carrying execution power conferred congress naturalization clause report developed response congress requirement children born abroad citizens register consulate lose citizenship continues certify acquisition citizenship birth person born abroad citizen see although persons possessed statutory right citizenship birth much country process citizenship evidenced varied time consular regulations instance children born abroad citizens issued certificates applied passport issued one qualified obligations duties attached citizens virtue residence foreign nation regulations prescribed use consular service app iv see also congress acted require children residing abroad register local consulate age act mar stat importance registration requirement consular officials began issue reports citizens confirming registration see generally national archives general records dept state record group passport office decimal file department state acted standardize consular registration children born abroad report birth children american citizens residing abroad general instruction urged consulates impress upon citizens abroad need record birth children within two years encourage effort department permitted consular officials issue reports attesting parents citizens born abroad presented sufficient evidence citizenship children ibid brought additional regulations consular reports birth abroad fed reg continue substantially similar form day see cfr currently issued consular report birth abroad includes applicant name sex place birth date birth parents force effect proof citizenship certificat naturalization since stat thus although registration longer required maintain birthright citizenship consular report birth abroad remains primary means children born abroad may obtain official acknowledgement citizenship see cfr acknowledged citizens need pursue naturalization process obtain rights privileges citizenship country regulation report thus appropriate plainly adapted exercise naturalization power see comstock thomas dissenting contrast regulation report bears relationship president residual foreign affairs power historical pedigree uniquely associated president contains communication directed foreign power primarily used domestic purposes extent citizen born abroad seeks document use evidence citizenship abroad must obtain passport see generally fam regulation consular report birth abroad justified exercise congress powers naturalization necessary proper clauses fall within president foreign affairs powers treatment document iii majority perform analysis instead relies variation recognition power power among foreign affairs powers vested president article ii vesting clause confirmed article ii express assignment president duty receiving foreign ambassadors art ii join majority analysis act recognition implicated international law recognition state signifies acceptance position within international community possession full range rights obligations normal attributes statehood oppenheim international law jennings watts ed omitted oppenheim accomplished expressly implicitly key discern clear intention part one state recognize another important consequences understood flow one state recognition another new state instance acquires capacity engage diplomatic relations including negotiation treaties recognizing state new state also entitled sue invoke sovereign immunity demand acceptance official acts courts recognizing state ibid see also brownlie principles public international law ed changes territory generally affect status state international person oppenheim france example centuries retained identity although acquired lost regained parts territory changed dynasty kingdom republic empire kingdom republic empire republic ibid even loss territory occasions reduction major power lesser status affect state international person changes affect status international person include union two separate international persons partial loss independence assuming sake argument listing foreign sovereign citizen place birth passport effect recognizing sovereign international law recognition occur circumstances presented recognized israel foreign sovereign since may statement president announcing recognition state israel public papers presidents harry truman subsequently declined acknowledge israel sovereignty jerusalem changed recognition israel sovereign state even acknowledge israel sovereignty jerusalem action change recognition israel sovereign state already afforded israel rights responsibilities attendant status sovereign state taking different position jerusalem question effect perhaps recognizing formal recognition implicated majority reasons executive exclusive recognition power mean anything must mean president makes initial formal recognition determination also may maintain determination agent statements ante alter ing president statements matters recognition forc ing contradict majority reasons congress effect exercise recognition power ante argument stretches recognition power beyond recognition listing citizen place birth israel amount recognition already recognizes israel international person rather adopt novel definition recognition power majority looked foreign affairs powers constitution resolve dispute adhering constitution allocation powers leads reach different conclusion case colleagues section constitutionally applied consular reports birth abroad passports therefore respectfully concur judgment part dissent part roberts dissenting menachem binyamin zivotofsky parents guardians ari naomi siegman zivotofsky petitioner john kerry secretary state writ certiorari appeals district columbia circuit june chief justice roberts justice alito joins dissenting today decision first never accepted president direct defiance act congress field foreign affairs instead stressed president power reaches lowest ebb contravenes express congress stake equilibrium established constitutional system youngstown sheet tube sawyer jackson concurring justice scalia principal dissent join full refutes majority unprecedented holding detail write separately underscore stark nature error basic question separation powers first principles area firmly established constitution allocates foreign policy powers executive grants legislature enjoins president take care laws faithfully executed art ii executive may disregard expressed implied congress constitution grants power conclusive preclusive disabl congress acting upon subject youngstown jackson concurring assertions exclusive preclusive power leave executive least favorable possible constitutional postures claims scrutinized caution throughout history see dames moore regan first years president prevailed contradicting statute field foreign affairs see medellín texas hamdan rumsfeld youngstown majority opinion little barreme cranch case president claims exclusive preclusive power recognize foreign sovereigns devotes much analysis accepting executive contention ante serious doubts position majority places great weight reception clause directs executive shall receive ambassadors public ministers art ii provision framed obligation rather authorization appears alongside duties imposed president article ii section powers granted article ii section indeed people ratified constitution alexander hamilton assurance executive reception ambassadors matter dignity authority without consequence administration government federalist rossiter ed short time founding reason view reception clause source discretionary authority president adler president recognition power ministerial discretionary presidential studies majority asserted textual bases even tenuous president power make treaties appoint ambassadors art ii authorities shared congress hardly support inference recognition power exclusive precedent history lend weight position majority cites dicta suggesting exclusive executive recognition power acknowledges contrary dicta suggesting power shared see palmer wheat courts union must view newly constituted government viewed legislative executive departments government emphasis added best muster conflicting dicta precedent hardly said support side history majority admits points directions presidents claimed exclusive recognition power others expressed uncertainty whether preclusive authority exists skeptical camp include andrew jackson abraham lincoln leaders generally known cramped conceptions presidential power congress also asserted authority recognition determinations numerous points history majority therefore falls short demonstrating congress accepted president exclusive recognition power ante event held congressional acquiescence pertinent president acts absence express congressional authorization asserts power disregard statute executive medellín see dames moore sum although president authority recognition convinced constitution provides conclusive preclusive power required justify defiance express legislative mandate youngstown jackson concurring leading scholar issue concluded text original understanding history structure constitution support expansive claim executive power plenary reinstein president recognition power exclusive temp rev even president exclusive recognition power still prevail case statute issue implicate recognition see zivotofsky clinton alito concurring judgment slip post scalia dissenting relevant provision simply gives american citizen born jerusalem option designate place birth israel purposes passports documents foreign relations authorization act fiscal year stat state department explained identification recognition principal reason passports require birth app congress disputed executive assurances alter longstanding position jerusalem annals diplomatic history record examples official recognition accomplished via optional passport designation majority acknowledges executive exclusive power extends formal recognition determination constitute formal act recognition ante taken together statements come close confession error majority attempts reconcile position reconceiving mandate executive contradict prior recognition determination official document issued secretary state ante noted neither congress executive branch regards recognition determination hard see statute contradict determination majority worries may perceived contradiction based mistaken understanding effect insisting observers interpreted altering policy regarding jerusalem ante afford controlling weight impressions however essentially subject duly enacted statute international heckler veto moreover expanding president purportedly exclusive recognition power include authority avoid potential misunderstandings legislative enactments proves far much congress validly exercise enumerated powers countless ways create severe perceived contradictions presidential recognition decisions example president recognized particular country opposition congress wishes congress declare war impose trade embargo country neutral observer might well conclude legislative actions put mildly created perceived contradiction president recognition decision yet undoubtedly constitutional see ante statements nonlegislative actors might seen contradict president recognition positions declaration political party platform jerusalem remain capital israel landler pushed obama democrats alter platform jerusalem times ultimately power support president position one majority purports reject exclusive authority conduct diplomatic relations brief respondent government offers single citation allegedly exclusive power export majority rightly acknowledges involve claim executive contravene statute held act pursuant legislative delegation ante expansive language casting president sole organ nation foreign affairs certainly attraction members executive branch solicitor general invokes case fewer ten times brief brief respondent precedents never accepted sweeping understanding executive power see hamdan dames moore youngstown majority opinion jackson concurring cf little cranch marshall confess first bias mind strong favour executive ut convinced terms ago rejected president argument broad foreign relations power allowed override state decision contradicted international law obligations medellín president general foreign relations authority permit countermand state lawful action surely authorize disregard express statutory directive enacted congress unlike extensive foreign relations powers unfortunately despite protest contrary majority today allows executive resolving status jerusalem may vexing resolving case whatever recognition power president may exclusive otherwise implicated necessary past years definitively resolve dispute congress president recognition power perhaps waited another years instead majority strains reach question based mere possibility observers overseas might misperceive significance birthplace designation issue case process takes perilous step first time history allowing president defy act congress field foreign affairs respectfully dissent scalia dissenting menachem binyamin zivotofsky parents guardians ari naomi siegman zivotofsky petitioner john kerry secretary state writ certiorari appeals district columbia circuit june justice scalia chief justice justice alito join dissenting country declared independence law england entrusted king exclusive care kingdom foreign affairs royal prerogative included sole power sending ambassadors foreign receiving home sole authority make treaties leagues alliances foreign princes sole prerogative making war peace sole power raising regulating fleets armies blackstone commentaries people ideas organized government considered sound structure balanced powers essential preservation government international relations formed exception principle people therefore adopted constitution divides responsibility nation foreign concerns legislative executive departments constitution gave president executive power authority send responsibility receive ambassadors power make treaties command army navy though qualified powers requiring consent senate art ii time gave congress powers war foreign commerce naturalization art fully eleven powers article grants congress deal way foreign affairs tribe american constitutional law case arises dispute executive legislative branches whether treat jerusalem part israel constitution contemplates political branches make policy territorial claims foreign nations way make policy international matters president exercise powers basis views congress powers basis views happened political branches government agree fact israel controls city jerusalem see jerusalem embassy act stat brief respondent disagree however official documents record birthplace american citizen born jerusalem executive accept state claim sovereignty jerusalem maintains birthplace designation israel clash stance neutrality national legislature enacted statute provides purposes registration birth certification nationality issuance passport citizen born city jerusalem secretary state shall upon request citizen citizen legal guardian record place birth israel foreign relations authorization act fiscal year stat menachem zivotofsky parents seek enforcement statutory right issuance son passport consular report birth abroad regard son birthplace part israel insist matter conscience israeli nativity erased identity documents app turning presidential power article ii think well establish statute basis congressional power article congress power establish uniform rule naturalization art cl enables grant american citizenship someone born abroad wong kim ark naturalization power also enables congress furnish people makes citizens papers verifying citizenship say consular report birth abroad certifies citizenship american born outside passport certifies citizenship purposes international travel necessary proper clause confirms every congressional power carries incidental powers necessary complete effectual execution cohens virginia wheat even miserly understanding congress incidental authority congress may make grants citizenship effectual providing issuance certificates authenticating one think congress may grant zivotofsky passport birth report may also require papers record birthplace israel birthplace specification promotes document function identifying bearer distinguishing people similar names different birthplaces helping authorities uncover identity fraud facilitating retrieval government citizenship records see app sure recording zivotovsky birthplace jerusalem rather israel fulfill objectives faced alternative ways carry powers execution congress discretion choose one deems beneficial people mcculloch maryland wheat thus right decide recording birthplaces israel makes better foreign policy regardless international politics passport birth report respect bearer conscientious belief jerusalem belongs israel doubt congressional discretion executing legislative powers limits congress chosen approach must necessary carrying powers execution also proper congress thus may transcend boundaries upon legislative authority stated implied elsewhere constitution shall see transgress restriction ii frames case debate recognition recognition sovereign official acceptance status international law sovereign might recognize foreign entity state regime state government place part state territory rebel forces state belligerent power whiteman digest international law hereinafter whiteman president truman recognized israel state presidents consistently declined recognize jerusalem part israel state sovereign territory holds constitution makes president alone responsible recognition invades exclusive power agree constitution empowers president extend recognition behalf find much harder question whether makes power exclusive tells us weight historical evidence supports exclusive executive authority formal determination recognition ante even attention confined formal recognition forced admit history one side ibid take stark example congress legislated grant independence philippines american colony stat course congress directed president recognize independence philippine islands separate nation acknowledge authority control government instituted people thereof constitutional congress may control recognition exercising power dispose territory property belonging art iv cl exercising enumerated powers neither text history precedent yields clear answer questions fortunately need confront matters today plainly concern recognition recognition announcement policy like ratification international agreement termination treaty formal legal act effects international law signifies acceptance international status makes commitment continued acceptance status respect attendant rights see convention rights duties art stat legal effect create estoppel granting recognition debar challenging future whatever previously acknowledged schwarzenberger international law ed order extend recognition state must perform act unequivocally manifests intention whiteman act consist express conferral recognition one handful acts international custom imply recognition chiefly entering bilateral treaty sending receiving ambassador ibid know realize nothing recognition section require secretary make formal declaration israel sovereignty jerusalem nobody suggests international custom infers acceptance sovereignty birthplace designation passport birth report bilateral treaties exchanges ambassadors recognition preclude matter international law later contesting israeli sovereignty jerusalem making notation passport birth report encumber republic international obligations leaves nation free far international law concerned change mind future true even statute required passports list israel fact requires passports list israel citizen guardian requests israel rest secretary policy list jerusalem utterly impossible deference private requests constitute act unequivocally manifests intention grant recognition section performs prosaic function extending recognition foreign countries care government say borders american citizens often care government say identities cf bowen roy state department grant deny recognition order accommodate individuals make exceptions rules records birthplaces although normal protocol requires specifying bearer country birth passport dept state foreign affairs manual fam app state department bearer protests specify city birth instead irish nationalist may birthplace recorded belfast rather kingdom although normal protocol requires specifying country present sovereignty bearer place birth special exception allows bearer born palestine birthplace listed palestine section requires state department make accommodation even though department normally refuses specify country lacks recognized sovereignty bearer birthplace must suspend policy upon request american citizen born jerusalem granting request specify israel rather jerusalem recognize israel sovereignty jerusalem granting request specify belfast rather kingdom derecognize kingdom sovereignty northern ireland best indication concern recognition comes state department policies concerning taiwan according solicitor general acknowledges chinese position taiwan part china take position issue brief respondent even state department long time recorded birthplace citizen born taiwan china indeed insisted congress passed law modeled giving citizens option birthplaces recorded taiwan see stat amended stat solicitor general explains designation china involves geographic description assertion taiwan part sovereign china brief respondent quite section likewise calls nothing beyond geographic description require executive even assert never mind formally recognize jerusalem part sovereign israel since birthplace specifications citizenship documents matters within congress control congress may treat jerusalem part israel regulating recording birthplaces even president extending recognition section way expressly directs secretary record place birth israel purposes registration birth certification nationality issuance passport emphasis added law bears caption record place birth israel passport purposes emphasis added finding recognition provision rather like finding admission union provision treats american samoa state purposes federal highway safety program iii complains requires secretary state issue official documents implying jerusalem part israel appears section statute bearing title policy respect jerusalem capital israel foreign observers interpreted altering policy regarding jerusalem ante features show recognizes israel sovereignty jerusalem show law displays symbolic support israel territorial claim symbolism may tremendous significance matter international diplomacy makes difference matter constitutional law even constitution gives president sole power extend recognition give sole power make decisions relating foreign disputes sovereignty contrary fair reading article allows congress decide laws handle controversies read naturally power regulate commerce foreign nations cl includes power regulate imports gibraltar british goods spanish goods read naturally power regulate value foreign coin cl includes power honor currency issued taiwan enumerated powers airy hypotheticals trade statute example provided whole island hispaniola whose status controversy shall purposes act considered dependency french republic stat congress allowed admission vatican city public records federal courts decades extended formal recognition ch stat whiteman taiwan relations act grants taiwan capacity sue sued even though recognize state section continues tradition constitution likewise give president exclusive power determine claims statehood territory legitimate eyes ante congress may express views matters declaring war restricting trade denying foreign aid much else besides take one example congress responded iraq invasion kuwait enacting resolution authorizing use military force stat doubt resolution reflected congress views legitimacy iraq territorial claim preamble referred iraq illegal occupation stated international community demanded kuwait independence legitimate government restored ibid statements far categorical caption policy respect jerusalem capital israel follow authorization use military force invaded president exclusive powers done president recognized iraqi sovereignty kuwait history even support exclusive presidential power make calls formal statements legitimacy state government territorial bounds ante long time houses congress made formal statements announcing positions issues without provoking constitutional objections recent resolution expressed house representatives strong support legitimate government lebanon condemned illegitimate unjustifiable insurrection terrorist group hizballah res cong earlier enactment declared sense congress tibet occupied country established principles international law tibet true representatives dalai lama tibetan government exile stat texas independence mexico senate resolved state texas established maintained independent government expedient proper independent political existence said state acknowledged government cong globe see final analysis constitution may well deny congress power recognize power make international commitment accepting foreign entity state regime government place part territory whatever else may plainly make require president make commitment accepting israel sovereignty jerusalem iv try argue extends recognition try argue president holds exclusive power make nonrecognition decisions relating status jerusalem shown arguments impossible make straight face instead announces rule blatantly gerrymandered facts case concludes addition exclusive power make formal recognition determination president holds ancillary exclusive power control formal statements executive branch acknowledging legitimacy state government territorial bounds ante follows explains congress may requir president contradict earlier recognition determination official document issued executive branch ibid requiring imports jerusalem taxed like goods israel fine requiring customs issue official invoice effect nonsense recognition type legal act type statement leap worthy mad hatter go exclusive authority making legal commitments sovereignty exclusive authority making statements issuing documents national borders may well jump power issuing declaratory judgments monopoly writing articles consistent coherent theory supports decision times seems concerned possibility congressional interference president ability extend withhold legal recognition concedes must notation required constitute formal act recognition ante still frets however congress try regulate president statements way override president recognition determination ibid circumstance power may abused answer powers may abused story commentaries constitution matters whether law interferes president ability withhold recognition comical claim identifies reason believe indeed country uses field passports birth reports forum performing act recognition nobody thinks withdraws recognition canada accommodates quebec nationalist request birthplace recorded montreal extent doubts linger whether recognizes israel sovereignty jerusalem leaves president free dispel issuing disclaimer intent recognize disclaimer always suffices prevent act effecting recognition restatement second foreign relations law recall earlier law grants citizens born taiwan right birthplaces recorded taiwan state department complied law foreign affairs manual officially recognize taiwan although passport issuing officers may enter place birth fam app nothing stops similar disclaimer times seems concerned congress failure give effect recognition decision president already made protests instance directly contradicts president refusal recognize israel sovereignty jerusalem ante even constitution empowers president alone extend recognition nowhere obliges congress align laws president recognition decisions president congress perfectly terms common commission federalist rossiter ed madison president use recognition power constrain congress use legislative powers congress legislated without regard recognition long time range settings example responding revolutions latin america congress amended federal neutrality laws originally prohibited private military action recognized prohibit private hostilities unrecognized ch stat ch stat see three friends legislation years ago provided revision national immigration quotas upon one country surrender territory another even transfer recognized stat federal law today prohibits murdering foreign government officials counterfeiting foreign government bonds using american vessels smuggle goods violation foreign government laws irrespective recognition congress may legislate independently recognition areas may legislate independently recognition regulating recording birthplaces elsewhere objects interferes autonomy unity executive branch setting branch suggests instance law prevents president maintaining neutrality jerusalem agent statements ante constitutional significance shown congress power legislate without regard recognition congress power legislate president duty take care legislation faithfully executed art ii likewise duty secretary state conform law congress imposes responsibility far officer law amenable laws conduct discretion sport away vested rights others marbury madison cranch executive involvement carrying law affect constitutionality executive carries every law error made apparent applying reasoning president power make treaties art ii cl question congress may wishes pass laws openly flout treaties made president head money cases anyone dreamt president may refuse carry laws bring point closer home refuse execute federal courts judgments laws executive may speak one voice country international obligations ask answer today holding puts implied power recognize territorial claims infers power recognize infers responsibility receive ambassadors higher footing express power make treaties even though federalist describes making treaties delicate important prerogative reception ambassadors matter dignity authority circumstance without consequence administration government federalist hamilton end decision rest text history precedent instead comes functional considerations principally perception nation must speak one voice status jerusalem ante ellipsis internal quotation marks omitted vices mode analysis go beyond mere lack footing constitution functionalism sort practices today systematically favor unitary president plural congress disputes involving foreign affairs possible approach make effective foreign policy perhaps effective monarchy certain long run erode structure separated powers people established protection liberty justice thomas concurrence deems constitutional extent regulates birth reports unconstitutional extent regulates passports ante opinion concurring judgment part dissenting part concurrence finds congressional power extend issuance contents passports including power regulate foreign commerce even though passports facilitate transportation passengers part commerce foreign nations henderson mayor new york including power naturalization even though passports issued citizens like birth reports force effect proof citizenship certificates naturalization including power enforce fourteenth amendment guarantee persons born naturalized citizens even though passport provides evidence citizenship helps enforce guarantee abroad including power exclude persons territory see art cl even though passports principal means identifying citizens entitled entry including powers congress restricted ability various people leave country fugitives justice example see even though passports principal means controlling exit including power make needful rules regulations respecting territory property belonging art iv cl even though passport remains times property fam concurrence stingy interpretation enumerated powers forgets constitution partake prolixity legal code great outlines marked important objects designated minor ingredients compose objects left deduced nature objects mcculloch forgets words constitution expounding ibid defending presidential primacy passports concurrence says royal prerogative england included power issue control travel documents akin modern passport ante perhaps power assuredly exclusive aliens act example enacted almost contemporaneously constitution required alien traveling within england obtain passport mayor justice peace passport shall expressed name rank occupation description alien geo iii ch eng stat large aliens act prohibited aliens leaving country without passport first obtained one majesty principal secretaries state instructed customs officers mark sign date passports allowing bearers depart geo iii ch eng stat large similar laws discredit claim legal tradition travel documents consistently issued controlled body exercising executive power ante emphasis added returning side atlantic concurrence says passports historical pedigree uniquely associated president ante statement overlooks reality congress restricted issuance passports state department passports also issued governors mayors even notaries public assn bar city new york special committee study passport procedures freedom travel sure early presidents granted passports without express congressional authorization ante point establishes presidential authority passports face congressional silence presidential authority face congressional opposition early republic history congress made crime consul grant passport paper certifying alien knowing citizen stat closer civil war congress expressly authorized granting passports regulated passport fees prohibited issuance passports foreign citizens stat since congress made laws eligibility receive passports duration passports remain valid even type paper used manufacture passports stat concurrence makes attempt explain laws supported congressional powers rejects present case held president may curtail citizen travel withholding passport except grounds approved congress kent dulles history precedent thus refute suggestion constitution disables congress regulating president issuance formulation passports concurrence adds passport contains communication directed foreign power ante communication question message traditionally appears passport though statute knowledge expressly requires inclusion secretary state america hereby requests may concern permit named herein pass without delay hindrance case need give lawful aid protection app leave reader judge whether request may concern qualifies communication directed foreign power even presence affect constitutionality requesting protection subordinate function passport kent supra subordinate function never thought invalidate laws regulating contents passports invalidate one brings analytic crescendo concurrence suggestion even congress enumerated powers otherwise encompass even president power regulate contents passports exclusive law might still violate constitution conflict president passport policy ante turns constitution suggest areas shared authority executive policy preempts law rather way around congress may make laws necessary proper carrying execution president powers art cl president must take care congress legislation faithfully executed art ii acts congress made pursuance constitution law land acts president apart treaties art vi cl chief justice marshall right think law prohibiting seizure foreign ships trumped military order requiring little barreme cranch justice jackson right think president takes measures incompatible expressed implied congress may rely upon constitutional powers minus constitutional powers congress matter youngstown sheet tube sawyer concurring opinion emphasis added justice thomas wrong think even operates field shared authority president might still prevail whereas analysis threatens congressional power foreign affairs gradual erosion concurrence approach shatters one stroke combination concurrence assertion broad unenumerated residual powers president see ante parsimonious interpretation congress enumerated powers see ante even parsimonious interpretation congress authority enact laws necessary proper carrying execution president executive powers see ante produces presidency reminiscent george iii george washington international disputes statehood territory neither rare obscure leading foreign debates century concerned respond revolutions latin america texas mexico hawaii cuba century attitudes toward communist governments russia china became conspicuous subjects agitation disagreements taiwan kashmir crimea remain prominent today president empowered decide questions relating matters immune laws embodying congressional disagreement position uncontrolled mastery vast share nation foreign affairs chief magistrate american people agreed live adopted national charter believed accumulation powers legislative executive judiciary hands may justly pronounced definition tyranny federalist madison reason entrust either president congress sole power adopt uncontradictable policies subject disputes included instead gave political department powers freedom contradict policies constitution approved congress may require zivotofsky passport birth report record birthplace israel even requirement clashes president preference neutrality status jerusalem dissent footnotes discussion allocation federal foreign affairs powers understood address allocation foreign affairs powers federal government extent retained foreign affairs powers following ratification us today majority asserts zivotofsky waived argument consular report birth abroad treated differently passport fail ed differentiate two documents ante every stage proceedings zivotofsky pressed claim entitled place birth listed israel passport consular report birth abroad consular report issue fairly included question presented parties waive correct interpretation law simply failing invoke see eeoc flra per curiam parties argued case analysis apply documents relieve responsibility interpret law correctly passports generally required enter exit country except wartime stat justice scalia dissent faults failing identify enumerated power laws permissible question presented case whether constitutional exercise congress power question address proper need resolve whether law understood carry execution president power principle necessarily inconsistent second mechanism evaluating congressional action necessary proper clause discussed although mechanism tie propriety congressional action objection nonobjection another branch point tying feature determine whether fact congress encroached upon another branch whether encroachment acceptable first congress passed law recognizing citizenship birth children born abroad citizens act mar ch stat amendment provision rendered availability citizenship uncertain binney alienigenae reg congress acted clarify availability citizenship act ch stat continues exist day see immigration nationality act stat issue presented need decide direct conflict action pursuant enumerated power congress action pursuant residual foreign affairs power president resolved assume majority recognition power conferred president constitution power accomplish act recognition act defined international law possible course framers fixed understanding act recognition odds definition act international law majority make argument majority even specifically address consular reports birth abroad related recognition lacking evidence modern practice recognition deviates relevant way historical practice original understanding recognition power something power take part practice proceed assumption majority scholars long debated extent official recognition sovereign make international community necessary bring new state international community thereby subject international law oppenheim resolving debate necessary resolve issue hand describe modern view recognition without endorsing analysis might look different required president list place birth country never officially recognized case