Page:Zivotofsky v. Kerry.pdf/52

This page has been proofread, but needs to be validated.

52

ZIVOTOFSKY v. KERRY

Opinion of Thomas, J.

and internal quotation marks omitted).^[1] And the argument from Presidential acquiescence here is particularly weak, given that the Taiwan statute is consistent with the President's longstanding policy on Taiwan. At the time Congress enacted the statute, the Foreign Affairs Manual permitted consular officials to list “the city or area of birth” on a passport “[w]here the birthplace of the applicant is located in territory disputed by another country,” 7 FAM § 1383.5–2 (1987), and to list “the city or town, rather than the country,” of an applicant's birth “when there are objections to the listing shown on the birthplace guide,” id., § 1383.6. Because the President otherwise treats Taiwan as a geographical area within the People's Republic of China, listing Taiwan as the place of birth did not directly conflict with the President's prevailing practices. Section 214(d) does so conflict, as it requires the President to list citizens born in Jerusalem as born in “Israel,” even though the Foreign Affairs Manual has long prohibited that action.

d

Justice Scalia would locate Congress' power to enact the passport directive of § 214(d) in Congress' power under the Necessary and Proper Clause to bring into effect its enumerated power over naturalization. Post, at 69–70 (dissenting opinion). As an initial matter, he asserts that “[t]he naturalization power . . . enables Congress to furnish the people it makes citizens with papers verifying their citizenship,” post, at 69, yet offers no support for this interpretation of a clause that, by its terms, grants Congress only the “Power . . . To

↑ This principle is not necessarily inconsistent with the second mechanism for evaluating congressional action under the Necessary and Proper Clause discussed above. Although that mechanism would tie the propriety of congressional action to the objection (or nonobjection) of another branch, the point of that tying feature is to determine whether, in fact, Congress has encroached upon another branch, not whether such encroachment is acceptable.

[1] This principle is not necessarily inconsistent with the second mechanism for evaluating congressional action under the Necessary and Proper Clause discussed above. Although that mechanism would tie the propriety of congressional action to the objection (or nonobjection) of another branch, the point of that tying feature is to determine whether, in fact, Congress has encroached upon another branch, not whether such encroachment is acceptable.

[1]