Page:Zivotofsky v. Kerry.pdf/41

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

41

Opinion of Thomas, J.

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

Neither has it quite right. The President is not constitutionally compelled to implement § 214(d) as it applies to passports because passport regulation falls squarely within his residual foreign affairs power and Zivotofsky has identified no source of congressional power to require the President to list Israel as the place of birth for a citizen born in Jerusalem on that citizen's passport. Section 214(d) can, however, be constitutionally applied to consular reports of birth abroad because those documents do not fall within the President's foreign affairs authority but do fall within Congress' enumerated powers over naturalization.^[1]

A

1

In the Anglo-American legal tradition, passports have consistently been issued and controlled by the body exercising executive power—in England, by the King; in the Colonies,

↑ The majority asserts that Zivotofsky “waived any argument that his consular report of birth abroad should be treated differently than his passport” in the court below and in this Court because he “fail[ed] to differentiate between the two documents.” Ante, at 9. But at every stage of the proceedings, Zivotofsky has pressed his claim that he is entitled to have his place of birth listed as “Israel” on both his passport and his consular report of birth abroad, and the consular report issue is fairly included in the question presented. Parties cannot waive the correct interpretation of the law simply by failing to invoke it. See, e. g., EEOC v. FLRA, 476 U. S. 19, 23 (1986) (per curiam). That the parties have argued the case as if the same analysis should apply to both documents does not relieve this Court of its responsibility to interpret the law correctly.

[1] The majority asserts that Zivotofsky “waived any argument that his consular report of birth abroad should be treated differently than his passport” in the court below and in this Court because he “fail[ed] to differentiate between the two documents.” Ante, at 9. But at every stage of the proceedings, Zivotofsky has pressed his claim that he is entitled to have his place of birth listed as “Israel” on both his passport and his consular report of birth abroad, and the consular report issue is fairly included in the question presented. Parties cannot waive the correct interpretation of the law simply by failing to invoke it. See, e. g., EEOC v. FLRA, 476 U. S. 19, 23 (1986) (per curiam). That the parties have argued the case as if the same analysis should apply to both documents does not relieve this Court of its responsibility to interpret the law correctly.

[1]