Scalia, J., dissenting
Kent v. Dulles, 357 U. S. 116, 129 (1958). History and precedent thus refute any suggestion that the Constitution disables Congress from regulating the President's issuance and formulation of passports.
The concurrence adds that a passport “contains [a] communication directed at a foreign power.” Ante, at 58. The “communication” in question is a message that traditionally appears in each passport (though no statute, to my knowledge, expressly requires its inclusion): “The Secretary of State of the United States of America hereby requests all whom it may concern to permit the citizen/national of the United States named herein to pass without delay or hindrance and in case of need to give all lawful aid and protection.” App. 22. I leave it to the reader to judge whether a request to “all whom it may concern” qualifies as a “communication directed at a foreign power.” Even if it does, its presence does not affect § 214(d)'s constitutionality. Requesting protection is only a “subordinate” function of a passport. Kent, supra, at 129. This subordinate function has never been thought to invalidate other laws regulating the contents of passports; why then would it invalidate this one?
That brings me, in analytic crescendo, to the concurrence's suggestion that even if Congress's enumerated powers otherwise encompass § 214(d), and even if the President's power to regulate the contents of passports is not exclusive, the law might still violate the Constitution, because it “confict[s]” with the President's passport policy. Ante, at 55. It turns the Constitution upside-down to suggest that in areas of shared authority, it is the executive policy that preempts the law, rather than the other way around. Congress may make laws necessary and proper for carrying into execution the President's powers, Art. I, § 8, cl. 18, but the President must “take Care” that Congress's legislation “be faithfully executed,” Art. II, § 3. And Acts of Congress made in pursuance of the Constitution are the “supreme Law of the Land”;
