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48
ZIVOTOFSKY v. KERRY

Opinion of Thomas, J.

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

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

Our constitutional structure imposes three key limitations on that jurisdiction: It must conform to (1) the allocation of authority within the Federal Government, (2) the allocation of power between the Federal Government and the States, and (3) the protections for retained individual rights under the Constitution. See Lawson & Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 291, 297 (1993). In other words, to be “proper,” a law “must be consistent with principles of separation of powers, principles of federalism, and individual rights.” Id., at 297.

Commentators during the ratification debates treated “proper” as having this meaning. Writing as Publius, Ham-