Page:Zivotofsky v. Kerry.pdf/46

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46
ZIVOTOFSKY v. KERRY

Opinion of Thomas, J.

cient to bring § 214(d)'s passport directive within the scope of this power. The specific conduct at issue here—the listing of the birthplace of a U. S. citizen born in Jerusalem on a passport by the President—is not a commercial activity. Any commercial activities subsequently undertaken by the bearer of a passport are yet further removed from that regulation.

The power “[t]o establish an uniform Rule of Naturalization” is similarly unavailing. At the founding, the word “naturalization” meant “[t]he act of investing aliens with the privileges of native subjects.” 2 S. Johnson, A Dictionary of the English Language 1293 (4th ed. 1773); see also T. Dyche & W. Pardon, A New General English Dictionary (1771) (“the making a foreigner or alien, a denizen or freeman of any kingdom or city, and so becoming, as it were, both a subject and a native of a king or country, that by nature he did not belong to”). A passport has never been issued as part of the naturalization process. It is—and has always been—a “travel document,” Dept. of State, 7 Foreign Affairs Manual (or FAM) § 1311(b) (2013), issued for the same purpose it has always served: a request from one sovereign to another for the protection of the bearer. See supra, at 41–43.

b

For similar reasons, the Necessary and Proper Clause gives Congress no authority here. That Clause provides, “The Congress shall have Power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U. S. Const., Art. I, § 8, cl. 18. As an initial matter, “Congress lacks authority to legislate [under this provision] if the objective is anything other than `carrying into Execution' one or more of the Federal Government's enumerated powers." Comstock, supra, at 161 (Thomas, J., dissenting). The “end [must] be legiti-