Symposium: Justice Thomas gets it right in Zivotofsky

Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law and Director of the International & Comparative Law Programs at the University of San Diego Law School.
In Zivotofsky v. Kerry, Justice Clarence Thomas’s partial concurrence/partial dissent argues that “[t]he President is not constitutionally compelled to implement [the statute relating to Jerusalem] as it applies to passports because passport regulation falls squarely within his residual foreign affairs powers and Zivotofsky has identified no source of congressional power to require the President to list Israel as the place of birth for a citizen born in Jerusalem on that citizen’s passport.” I think this is the right approach for three reasons.
First, Thomas’s approach takes the issues in the correct order. If Congress lacks an enumerated power to pass a statute, the president need not follow it, regardless of whether

Original SCOTUS article

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