Opinion of Thomas, J.
2
That the President has the power to regulate passports under his residual foreign affairs powers does not, however, end the matter, for Congress has repeatedly legislated on the subject of passports. These laws have always been narrow in scope. For example, Congress enacted laws prohibiting the issuance of passports to noncitizens, id., at 61, created an exception to that rule for “persons liable to military duty,” Act of Mar. 3, 1863, § 23, 12 Stat. 754, and then eliminated that exception, Act of May 30, 1866, ch. 102, 14 Stat. 54. It passed laws regulating the fees that the State Department should impose for issuance of the passports. Act of May 16, 1932, ch. 187, 47 Stat. 157; Act of June 4, 1920, § 1, 41 Stat. 750; Act of June 15, 1917, ch. 30, Title IX, § 1, 40 Stat. 227; Act of Aug. 18, 1856, § 23, 11 Stat. 60; Act of Mar. 1, 1855, § 12, 10 Stat. 624. It also enacted legislation addressing the duration for which passports may remain valid. § 116, 96 Stat. 279; Pub. L. 90–428, 82 Stat. 446; Pub. L. 86–267, 73 Stat. 552; Act of July 3, 1926, 44 Stat. 887. And it passed laws imposing criminal penalties for false statements made when applying for passports, along with misuse of passports and counterfeiting or forgery of them. Act of June 25, 1948, 62 Stat. 771; Act of Mar. 28, 1940, § 7, 54 Stat. 80; 40 Stat. 227.[1]
As with any congressional action, however, such legislation is constitutionally permissible only insofar as it is promulgated pursuant to one of Congress' enumerated powers. I must therefore address whether Congress had constitutional authority to enact § 214(d)'s regulation of passports.
a
Zivotofsky and congressional amici identify three potential sources of congressional power to enact the portion of
- ↑ Justice Scalia, in his dissent, faults me for failing to identify the enumerated power under which these laws were permissible, but the question presented in this case is whether § 214(d) is a constitutional exercise of Congress' power, and that is the question I address.
