Page:Zivotofsky v. Kerry.pdf/69

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Before turning to Presidential power under Article II, I think it well to establish the statute's basis in congressional power under Article I. Congress's power to “establish an uniform Rule of Naturalization,” Art. I, § 8, cl. 4, enables it to grant American citizenship to someone born abroad. United States v. Wong Kim Ark, 169 U. S. 649, 702–703 (1898). The naturalization power also enables Congress to furnish the people it makes citizens with papers verifying their citizenship—say a consular report of birth abroad (which certifies citizenship of an American born outside the United States) or a passport (which certifies citizenship for purposes of international travel). As the Necessary and Proper Clause confrms, every congressional power “carries with it all those incidental powers which are necessary to its complete and effectual execution.” Cohens v. Virginia, 6 Wheat. 264, 429 (1821). Even on a miserly understanding of Congress's incidental authority, Congress may make grants of citizenship “effectual” by providing for the issuance of certificates authenticating them.

One would think that if Congress may grant Zivotofsky a passport and a birth report, it may also require these papers to record his birthplace as “Israel.” The birthplace specifcation promotes the document's citizenship-authenticating function by identifying the bearer, distinguishing people with similar names but different birthplaces from each other, helping authorities uncover identity fraud, and facilitating retrieval of the Government's citizenship records. See App. 70. To be sure, recording Zivotofsky's birthplace as “Jerusalem” rather than “Israel” would fulfill these objectives, but when faced with alternative ways to carry its powers into execution, Congress has the “discretion” to choose the one it deems “most beneficial to the people.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). It thus has the right to decide that recording birthplaces as “Israel” makes for better foreign policy. Or that regardless of international politics,