Scalia, J., dissenting
acts of the President (apart from treaties) are not. Art. VI, cl. 2. That is why Chief Justice Marshall was right to think that a law prohibiting the seizure of foreign ships trumped a military order requiring it. Little v. Barreme, 2 Cranch 170, 178–179 (1804). It is why Justice Jackson was right to think that a President who “takes measures incompatible with the expressed or implied will of Congress” may “rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (concurring opinion) (emphasis added). And it is why Justice Thomas is wrong to think that even if § 214(d) operates in a field of shared authority the President might still prevail.
Whereas the Court's analysis threatens congressional power over foreign affairs with gradual erosion, the concurrence's approach shatters it in one stroke. The combination of (a) the concurrence's assertion of broad, unenumerated “residual powers” in the President, see ante, at 33–40; (b) its parsimonious interpretation of Congress's enumerated powers, see ante, at 44–48; and (c) its even more parsimonious interpretation of Congress's authority to enact laws “necessary and proper for carrying into Execution” the President's executive powers, see ante, at 48–51; produces (d) a presidency more reminiscent of George III than George Washington.
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International disputes about statehood and territory are neither rare nor obscure. Leading foreign debates during the 19th century concerned how the United States should respond to revolutions in Latin America, Texas, Mexico, Hawaii, Cuba. During the 20th century, attitudes toward Communist governments in Russia and China became conspicuous subjects of agitation. Disagreements about Taiwan, Kashmir, and Crimea remain prominent today. A President empowered to decide all questions relating to these matters, immune from laws embodying congressional
