Opinion of Thomas, J.
I need not resolve that question today, as the application of § 214(d) to passports would be improper under either approach. The President has made a determination that the “place of birth” on a passport should list the country of present sovereignty. 7 FAM § 1300, App. D, § 1330 (2014). And the President has determined that no country is presently exercising sovereignty over the area of Jerusalem. Thus, the President has provided that passports for persons born in Jerusalem should list “Jerusalem” as the place of birth in the passport. Id., § 1360(f). Section 214(d) directs the President to exercise his power to issue and regulate the content of passports in a particular way, and the President has objected to that direction. Under either potential mechanism for evaluating the propriety of a law under the separation-of-powers limitation, this law would be improper.[1]
c
In support of his argument that the President must enforce § 214(d), Zivotofsky relies heavily on a similar statute addressing the place of birth designation for persons born in Taiwan. See Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, § 132, 108 Stat. 395. That statute provided, “For purposes of the registration of birth or certification of nationality of a United States citizen born in Taiwan, the Secretary of State shall permit the place of birth to be recorded as Taiwan.” Ibid. The President has adopted that practice.
The President's decision to adopt that practice, however, says nothing about the constitutionality of the Taiwan provision in the first place. The constitutional allocation of powers “does not depend on the views of individual Presidents, nor on whether the encroached upon branch approves the encroachment.” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 497 (2010) (citation
- ↑ Because § 214(d) is not proper, I need not resolve whether such a law could be understood to “carry into execution” the President's power.
