A prevailing plaintiff in a trademark infringement suit is often entitled to an award of the “defendant’s profits.” 15 U.S.C. §1117(a).

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Thompson did not argue that his alleged statement about “home improvement” was a true statement. See also Tr. of Oral Arg. 28 (“That is a false statement.”).

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Under that doctrine as it existed in 1946, a judgment is “on the merits” if the underlying decision “actually passes directly on the substance of a particular claim before the court.” Id. at 501–502 (cleaned up).

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The Court’s ruling today means that those deportations violated the Due Process Clause’s most fundamental protections. See ante, at 3 (reiterating that notice and an opportunity for a hearing are required before a deportation under the Alien Enemies Act).

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Other decisions of this Court indicate that the pardon power also falls in this category, see United States v. Klein, 13 Wall. 128, 147 (1872) (“To the executive alone is intrusted the power of pardon; and it is granted without limit”), as does the power to recognize foreign countries, see Zivotofsky v. Kerry, 576 U. S. 1, 32 (2015) (holding that the President has “exclusive power . . . to control recognition determinations”).

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Had the Court applied strict scrutiny, it could not have so easily cast that doubt aside. Cf. Brown, 564 U. S. at 799–800 (declining to defer to a legislature’s view of “competing psychological studies” when applying strict scrutiny to a law restricting minors from purchasing violent video games).

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Unlike the Alien Friends Act, which lapsed in disrepute as James Madison deemed it “a monster that must for ever disgrace its parents,” the Founders saw the Alien Enemies Act as a constitutional exercise of Congress’s powers to “declare War,” to “raise and support Armies,” and to “provide for calling forth the Militia to . . . suppress Insurrections and repel Invasions.” U. S. Const., Art. I, §8, cls. 11–15.1

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 Although “appoint” is not the only verb that Congress can use, see SW General, 580 U.S. at 313 (THOMAS, J., concurring), this Court has been reluctant to find a vesting where the statute in question uses a verb that Congress does not typically employ to confer appointment authority. See Edmond, 520 U. S. at 657 (holding that the power to “assign” military judges is not the power to “appoint” them, because “Congress has consistently used the word ‘appoint’ ” to vest appointment power for “military positions”); Weiss v. United States, 510 U. S. 163, 171–173 (1994) (similar); Auffmordt v. Hedden, 137 U. S. 310, 326–327 (1890) (finding no vesting of appointment authority in part because “[t]he statute does not use the word ‘appoint,’ but uses the word ‘select’”).

The Court’s omission of such analysis in D’Arcy is illustrative: The Court could have analyzed the legitimacy of enforcing the New York judgment under the New York Constitution—which “contained an exact replica of the Fifth Amendment’s Due Process Clause”—but it conspicuously declined to do so. See Brief for Professor Stephen E. Sachs as Amicus Curiae 10 (citing N. Y. Const. of 1846, Art. I, §6).

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