Seth Barrett Tillman sends this comment:
You wrote: "But, Congress must always act pursuant to the powers given to it in the Constitution." See http://originalismblog.typepad.com/the-originalism-blog/2014/11/kontorovich-v-ramsey-on-zivotofskymichael-ramsey.html (11/7/2014). You considered several Article I powers (e.g., commerce & naturalisation) which might support Congress' purported power to control passport design. But you rejected those Article I powers as insufficient to authorise Congress here.
What about the following argument … Page 5 of my passport says: "U.S. Government Property. This passport is property of the United States. (Title 22, Code of Federal Regulations, Section 51.9)." So Congress' regulatory power over passports and, arguably, over passport design might be supported by U.S. Constitution Article IV, Section 3, Clause 2: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."
I think that works.
Eugene Kontorovich comments favorably on this suggestion here: The Government Property Clause and Zivotofsky. But Marty Lederman (Just Security) is not persuaded.
RELATED: Josh Blackman highlights originalism in the Zivotofsky oral argument: Hamilton and Story on the Recognition Power in Zivotofsky (including Justice Breyer, an "unexpected originalist").
ALSO RELATED: This article in the National Law Journal discusses legal historian Louis Fisher's amicus brief in Zivotofsky and his campaign to get the Supreme Court to do something about Curtiss-Wright. Of course, I agree. Although I'm skeptical of Congress' enumerated power in Zivotofsky, my bigger concern (expressed in this discussion) is that the case not become a Curtiss-Wright-like assertion of wide ranging exclusive executive power.
AND STILL MORE: Will Baude highlights part of his debate with John Manning that may relate to congressional power in Zivotofsky: The Necessary and Proper Clause: Master or Servant?
Posted at 6:55 AM