Opinion of Thomas, J.
establish an uniform Rule of Naturalization,” U. S. Const., Art. I, § 8, cl. 4. He then concludes that, if Congress can grant such documents, “it may also require these [documents] to record his birthplace as `Israel' ” pursuant to its power under the Necessary and Proper Clause, post, at 69. But this theory does not account for the President's power to act in this area, nor does it confront difficult questions about the application of the Necessary and Proper Clause in the case of conflict among the branches.
Justice Scalia disapproves of my “assertion of broad, unenumerated `residual powers' in the President,” post, at 84, but offers no response to my interpretation of the words “executive Power” in the Constitution. Instead, he claims that I have argued for “Presidential primacy over passports” and then rejects that position based on two postratifcation English statutes, the early practice of nonfederal actors issuing passports in this country, and the same congressional statutes that I have already discussed, most of which were enacted after the Civil War. Post, at 81–83; supra, at 44, and n. 4. But I do not argue that the President possesses primary power over passports. I need not argue that. I argue only that Congress did not act according to any of the powers granted to it in the Constitution and, in such circumstances, the question of primacy does not arise.
In any event, the historical evidence cited in Justice Scalia's dissent does not conflict with my analysis of the President's power in this area. The two postratifcation English statutes implicitly acknowledged that passports are issued by executive officers in the exercise of executive power, see 38 Geo. III, ch. 50, § 8, in 41 Eng. Stat. at Large 684; 33 Geo. III, ch. 4, § 8, in 39 Eng. Stat. at Large 12, and the practice of executive officials in the States of this country confirms that relationship. In addition, neither piece of historical evidence speaks to the scope of Congress' power to regulate passports under our federal system. Justice
