Scalia, J., dissenting
secretaries of state,” and instructed customs officers to mark, sign, and date passports before allowing their bearers to depart. 38 Geo. III, ch. 50, § 8, in 41 Eng. Stat. at Large 684. These and similar laws discredit any claim that, in the “Anglo-American legal tradition,” travel documents have “consistently been issued and controlled by the body exercising executive power,” ante, at 41 (emphasis added).
Returning to this side of the Atlantic, the concurrence says that passports have a “historical pedigree uniquely associated with the President.” Ante, at 58. This statement overlooks the reality that, until Congress restricted the issuance of passports to the State Department in 1856, “passports were also issued by governors, mayors, and even . . . notaries public.” Assn. of the Bar of the City of New York, Special Committee to Study Passport Procedures, Freedom to Travel 6 (1958). To be sure, early Presidents granted passports without express congressional authorization. Ante, at 43. But this point establishes Presidential authority over passports in the face of congressional silence, not Presidential authority in the face of congressional opposition. Early in the Republic's history, Congress made it a crime for a consul to “grant a passport or other paper certifying that any alien, knowing him or her to be such, is a citizen of the United States.” § 8, 2 Stat. 205 (1803). Closer to the Civil War, Congress expressly authorized the granting of passports, regulated passport fees, and prohibited the issuance of passports to foreign citizens. § 23, 11 Stat. 60–61 (1856). Since then, Congress has made laws about eligibility to receive passports, the duration for which passports remain valid, and even the type of paper used to manufacture passports. 22 U. S. C. §§ 212, 217a; § 617(b), 102 Stat. 1755. (The concurrence makes no attempt to explain how these laws were supported by congressional powers other than those it rejects in the present case.) This Court has held that the President may not curtail a citizen's travel by withholding a passport, except on grounds approved by Congress.
