Scalia, J., dissenting
Federalist describes the making of treaties as a “delicate and important prerogative,” but the reception of ambassadors as “more a matter of dignity than of authority,” “a circumstance which will be without consequence in the administration of the government.” The Federalist No. 69, p. 420 (Hamilton).
In the end, the Court's decision does not rest on text or history or precedent. It instead comes down to “functional considerations”—principally the Court's perception that the Nation “must speak with one voice” about the status of Jerusalem. Ante, at 14 (ellipsis and internal quotation marks omitted). The vices of this mode of analysis go beyond mere lack of footing in the Constitution. Functionalism of the sort the Court practices today will systematically favor the unitary President over the plural Congress in disputes involving foreign affairs. It is possible that this approach will make for more effective foreign policy, perhaps as effective as that of a monarchy. It is certain that, in the long run, it will erode the structure of separated powers that the People established for the protection of their liberty.
V
Justice Thomas's concurrence deems § 214(d) constitutional to the extent it regulates birth reports, but unconstitutional to the extent it regulates passports. Ante, at 41 (opinion concurring in judgment in part and dissenting in part). The concurrence finds no congressional power that would extend to the issuance or contents of passports. Including the power to regulate foreign commerce even though passports facilitate the transportation of passengers, “a part of our commerce with foreign nations,” Henderson v. Mayor of New York, 92 U. S. 259, 270 (1876). Including the power over naturalization—even though passports issued to citizens, like birth reports, “have the same force and effect as proof of United States citizenship as certificates of naturalization,” 22 U. S. C. § 2705. Including the power to enforce the Fourteenth Amendment's guarantee that “[a]ll per-
