06/27/57 Walter BRIEHL,
v. John Foster DULLES,
[1] UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA
CIRCUIT.
[2] Walter BRIEHL, Appellant,
v.
[3] John Foster DULLES, Secretary of State, Appellee.
[4] No. 13317
BLUE BOOK CITATION FORM: 1957.CDC.104 (http://www.versuslaw.com)
[5] Date Decided: June 27, 1957.
[6] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE
EDGERTON
[7] Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K.
MILLER, BAZELON, FAHY, WASHINGTON, DANAHER and BASTIAN, Circuit
Judges, sitting en banc.
[8] EDGERTON, Chief Judge, announced the judgment and division
of the court as follows:
[9] The judgment of the District Court, granting the
Secretary's motion for summary judgment, is affirmed. Judges
Prettyman, Miller, Washington, Danaher and Bastian vote to affirm.
Judges Edgerton and Bazelon vote to reverse. Judge Fahy votes to
remand to the District Court with instructions to remand to the
Secretary. Judge Burger took no part in the consideration or
decision of this case.
[10] Judge Prettyman files an opinion in which Judges Miller,
Danaher and Bastian concur. Judge Washington files an opinion
concurring in the result reached by Judges Prettyman, Miller,
Danaher and Bastian. 101 U.S.App.D.C. 254, 248 F.2d 576. Judge
Bazelon files a dissenting opinion in which Judge Edgerton
concurs. 101 U.S.App.D.C. 257, 248 F.2d 579. Judge Edgerton also
files a separate dissent. 101 U.S.App.D.C. 274, 248 F.2d 596.
Judge Fahy files a dissenting opinion. 101 U.S.App.D.C. 275, 248
F.2d 597.
[11] PRETTYMAN, Circuit Judge, with whom WILBUR K. MILLER,
DANAHER and BASTIAN, Circuit Judges, concur: Appellant, Dr. Walter
Briehl, applied in April, 1955, to
the Department of State for renewal of a passport, stating his
desire to attend an international psychoanalytic congress in
Geneva and a World Mental Health Organization Congress in
Istanbul. He was and is engaged in the practice of medicine,
specializing in psychiatry. In prior years he had attended
international meetings in this field. The Director of the Passport
Office wrote him that "it would be helpful to the Department
if you would furnish an affidavit setting forth whether you are
now or ever have been a Communist, and explain your connections
with" certain named organizations. Dr. Briehl's
attorney replied, saying in part:
[12] "My clients refuse to submit the affidavits your
letters request. Your demands and the vague and formless standards
of the passport regulations under which you purport to act are
palpable violations of their Constitutional rights, including, but
not limited to, the First, Fifth, Ninth and Tenth
Amendments."
[13] The attorney described Dr. and Mrs. Briehl's
professional interests and concluded by saying: "Demand is
hereby made that passports as applied for by them be issued
forthwith."
[14] Thereupon the Director of the Passport Office wrote Dr. Briehl,
saying in part:
[15] "I regret to inform you that after careful
consideration of your application for the renewal of passport
facilities, the Department of State is obliged to disapprove your
request tentatively on the ground that the granting of such
further passport facilities is precluded under the provisions of
Section 51.135 of Title 22 of the Code of Federal Regulations. A
copy of the pertinent Regulations is enclosed for your
information.
[16] "In cases coming within the purview of the
Regulations above referred to, it is the practice of the
Department to inform the applicant of the reasons for the
disapproval of his request for passport facilities insofar as the
security regulations will permit. In your case it has been alleged
that you were a Communist."
[17] Dr. Briehl's attorney replied
in part:
[18] "[My clients] wish you to be advised that they do not
choose to offer any evidence in support of their applications for
passports unless and until they are confronted with the informers
your letter states have furnished you with proof that they have
been, are, or intend to engage in acts contrary to the national
interests of this country."
[19] Thereafter the attorney wrote several times demanding the
issuance of the passports and "an evidentiary hearing".
An "informal" hearing was arranged. Dr. Briehl,
his attorney, and two representatives of the State Department
attended. The attorney made an extended statement, in the course
of which he recounted the correspondence, described Dr. Briehl's
purposes in seeking to go abroad, and made three points as
follows:
[20] "Our first point, therefore is that medicine has
nothing to do with politics and you may not introduce and confuse
the issue of his right to practice medicine and his right to
study, and his right to participate in conferences by injecting
this issue of politics in connection with his travel abroad. When
a physician has a legitimate purpose in going abroad as was stated
here, all issues of political affiliations, past or present,
definite or indefinite, good or bad, are irrelevant. That will be
our first point. . . . My second point is that everyone has the
right to travel regardless of political considerations. . . . Now
we turn to the third point. . . . that you confront us with the
evidence against Dr. Briehl. . . . It
is up to the Department to support those allegations by evidence
and witnesses which we can examine and confront. . . . [We] have a
right to what the courts have now called a quasijudicial hearing,
. . . and . . . it is the Department's job to prove not only the
facts with respect to each of these allegations but it is the
Department's job to prove wherein each of these activities was
wrong and wherein the activities were in violation of the laws of
the United States."
[21] The attorney later said:
[22] ". . . Dr. Briehl will
not execute an affidavit of the kind you requested. He will not
execute an affidavit with respect to past membership; he will not
execute an affidavit with respect to present membership; he will
not execute an affidavit with respect to future membership. And
that does not apply only to the Communist Party situation, it
applies to any political activities or associations or beliefs
because those are things which we think are irrelevant to the
right of travel and particularly irrelevant, in fact, incredibly
so, to the right of a physician to travel for the purposes
indicated in the application for the passport renewal."
[23] In response to a letter from Dr. Briehl's
attorney, counsel for the Board of Passport Appeals replied:
[24] "It is understood that you appeared with your client,
Dr. Briehl, at a hearing in the
Passport Office on August 30, 1955. It is further understood that
Dr. Briehl refused to execute an
affidavit as to present or past membership in the Communist Party,
having been requested to do so by the Passport Office. The Board
has not been advised of any further processing of this case under
Section 51.137 of the Passport Regulations.
[25] "In these circumstances, the Board could not
entertain an appeal from Dr. Briehl
at this time. Your attention is invited to Sections 51.138 and
51.142 (22 CFR) of the Passport Regulations, and Sections
51.156(2) and 51.147 (22 CFR) of the Rules of the Board."
[26] And a few days later the Passport Office wrote:
[27] "You will recall that during the recent informal
hearing in which you represented Dr. Briehl,
he refused to explain or deny the allegations concerning him. He
also refused to submit an affidavit setting forth whether he was
or ever had been a member of the Communist Party.
[28] "In view of the above, the Department knows of no
further action which it can appropriately take in the case of Dr. Briehl."
[29] Dr. Briehl filed a civil
action in the District Court, naming the Secretary of State as
defendant. He prayed for a judgment decreeing that he is entitled
to a passport under the statutes, that the passport regulations of
the Secretary of State are invalid and illegal, and that the
refusal to renew the passport was in violation of his (Briehl's)
rights under the Passport Act of 1926, the Constitution of the
United States and the Declaration of Human Rights of the United
Nations; enjoining the Secretary from continuing to deny the
passport; and directing him to renew the passport.
[30] The Secretary answered, and a motion and a cross motion
for summary judgment were made, with supporting affidavits and
exhibits. The court rendered a brief opinion, denied the
plaintiff's motion, and granted the motion of the Secretary.
[31] In this court Dr. Briehl
divides his argument into four main points:
[32] *fn1. Appellant's constitutional right to travel could not
be conditioned upon his execution of a non-Communist affidavit or
compliance with any other political test.
[33] *fn2. Appellee's regulations deprive appellant of
procedural due process and the quasi-judicial hearing to which he
is entitled under the recent decisions of this Court.
[34] *fn3. The regulations are not authorized by statute, they
conflict with the will of Congress and were invalidity
promulgated.
[35] *fn4. The Secretary has not made out a case against
appellant, even under the Regulations.
[36] The arguments thus advanced involve consideration of six
basic subjects.
I
[37] The nature of the Communist movement. Dr. Briehl's
underlying premise, as shown by the statements we have quoted, is
that Communist membership or affiliation is a matter of politics,
an issue of political affiliation, a political consideration, a
political test, and thus is subject to the same rules which apply
to political beliefs generally. But it is not so. The Communist
organization and program have long since passed beyond the area of
mere politics and political opinion. All three branches of the
Federal Government - the executive, the legislature, and the
judiciary - have declared unequivocally that the Communist
movement today is an international conspiracy aimed at world
domination and a threat to the internal security of this country.
The foreign policy and a large part of the fiscal policy of the
Government are based upon that proposition.
[38] The Congress declared in 1650:
[39] "There exists a world Communist movement which, in
its origins, its development, and its present practice, is a
world-wide revolutionary movement whose purpose it is, by
treachery, deceit, infiltration into other groups (governmental
and otherwise), espionage, sabotage, terrorism, and any other
means deemed necessary, to establish a Communist totalitarian
dictatorship in the countries throughout the world through the
medium of a world-wide Communist organization."1
[40] President Truman declared in 1950:2
[41] "WHEREAS world conquest by communist imperialism is
the goal of the forces of aggression that have been loosed upon
the world; and
[42] "WHEREAS, if the goal of communist imperialism were
to be achieved the people of this country would no longer enjoy
the full and rich life they have with God's help built for
themselves and their children; they would no longer enjoy the
blessings of the freedom of worshipping as they severally choose,
the freedom of reading and listening to what they choose, the
right of free speech including the right to criticize their
Government, the right to choose those who conduct their
Government, the right to engage freely in collective bargaining,
the right to engage freely in their own business enterprises, and
the many other freedoms and rights which are a part of our way of
life; . . .."
[43] In his Inaugural Address of January, 1957, President
Eisenhower said:
[44] "The divisive force is international communism and
the power that it controls.
[45] "The designs of that power, dark in purpose, are
clear in practice. It strives to seal forever the fate of those it
has enslaved. It strives to break the ties that unite the free.
And it strives to capture - to exploit for its own greater power -
all forces of change in the world, especially the needs of the
hungry and the hopes of the oppressed."3
[46] In his State of the Union speech on January 10, 1957, the
President had said: "The existence of a strongly armed
imperialistic dictatorship poses a continuing threat to the free
world's and thus to our own Nation's security and peace."4 He
referred to "Communist persecution" and to "Soviet
aggression".*fn5
[47] The Supreme Court has held valid and sufficient the
findings of Congress*fn6 and the findings of a jury*fn7 to the
same import as the foregoing declarations. In Galvan v. Press the
Court quoted the above-quoted congressional finding and said:
"Certainly, we cannot say that this classification by
Congress is so baseless as to be violative of due process and
therefore beyond the power of Congress."*fn8 In American
Communications Ass'n v. Douds*fn9 the Court, balancing the
interest of the public against a partial abridgement of speech,
upheld the statutory requirement that a person must swear he is
not a member of the Communist Party before he can avail himself or
his organization of the processes of the Labor Board.*fn10
[48] There exists in some quarters a dogged insistence that the
Communist movement be treated as any other political organization.
It is as though one argued that, since opiates and aspirin both
possess medicinal properties, they must be subjected to the same
permissions and restrictions. The fact is that opiates are to be
and are regulated because of their own peculiar characteristics.
And so is the Communist movement and its affiliates. It would be
inexcusably naive for any court to declare in the present state of
the world that adherence to the Communist cause is a mere matter
of politics or political opinion. We shall treat the Communist
movement according to what the Congress, the President, and the
Supreme Court have declared it to be.
II
[49] The power of government in foreign affairs. Whatever may
be the dispute - and it has been extended and intense - as to the
division of this power as between the President and the Congress,
it seems settled beyond dispute that those two branches between
them possess the totality of the power. In a long line of cases,
beginning perhaps with Foster v. Neilson*fn11 and extending down
to United States v. Curtiss-Wright Corp.,12 United States v.
Belmont,13 Chicago & Southern Air Lines v. Waterman Corp,14
and Ludecke v. Watkins,15 the Supreme Court has laid down the rule
that foreign affairs and decisions upon foreign policy are
political matters entrusted by the Constitution to the political
departments of the Government, and that the judiciary has no part
in them. Mr. Justice Jackson, writing for the Court in the Chicago
& Southern Air Lines case, stated the proposition in succinct,
quotable terms.He wrote:
[50] "The President, both as Commander-in-Chief and as the
Nation's organ for foreign affairs, has available intelligence
services whose reports are not and ought not to be published to
the world. It would be intolerable that courts, without the
relevant information, should review and perhaps nullify actions of
the Executive taken on information properly held secret. Nor can
courts sit in camera in order to be taken into executive
confidences. But even if courts could require full disclosure, the
very nature of executive decisions as to foreign policy is
political, not judicial. Such decisions are wholly confided by our
Constitution to the political departments of the government,
Executive and Legislative. They are delicate, complex, and involve
large elements of prophecy. They are and should be undertaken only
by those directly responsible to the people whose welfare they
advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility and
which has long been held to belong in the domain of political
power not subject to judicial intrusion or inquiry."16
[51] The range of permissible judicial action in the case at
bar is narrowed also by the fact that the Secretary is acting in
the context of a national emergency. Only the President may
declare an emergency; he has done so.17 The existence of an
emergency indisputably enhances both executive and legislative
power.18 The Secretary has acted pursuant to two acts of
Congress,19 which not only recognize the administrative function
of the executive in this area but also delegate to the executive
any rule-making power it may have lacked. Thus the Secretary's
acts are buttressed by the sovereign power to defend the nation.
[52] There are of course in any government formed upon a
constitution residual areas within which the judicial branch may
act in respect to a power even so unfettered as is the executive
power in foreign affairs.If the President were in gross defiance
of constitutional limitations, or perhaps even of congressional
prohibitions, the judiciary might act. The Supreme Court has also
held20 that, where the Secretary refused to issue a passport
solely upon an erroneous finding of mixed law and fact (in that
case citizenship), a decree precluding his denial on that ground
could issue.
[53] It must be kept in mind that the power of the judiciary to
inquire is vastly different from its power to act. A court often
has jurisdiction to determine whether it has jurisdiction. The
books are full of cases in which the courts have examined with
meticulous care complaints alleging invalidity of executive action
in foreign affairs. But seldom if ever have the courts found
grounds to impose upon such executive action their own ideas of
propriety or wisdom. So in the case at bar it is not suggested
that the court could not entertain a complaint against the
Secretary of State alleging the illegality of his action. The
point is that having examined the allegations the court is without
power to act save in a narrow and limited class of extraordinary
circumstances.
[54] The inquiry in the case before us is whether the Secretary
has so far violated constitutional prescriptions or specific
congressional limitations as to cast his action outside the
exceedingly broad boundaries within which he is free to act
without judicial review.21
III
[55] The nature of a passport. In Urtetiqui v. D'Arbel22 the
Supreme Court said in 1835:
[56] "It is a document, which, from its nature and object,
is addressed to foreign powers; purporting only to be a request,
that the bearer of it may pass safely and freely; and is to be
considered rather in the character of a political document, by
which the bearer is recognized, in foreign countries, as an
American citizen; and which, by usage and the law of nations, is
received as evidence of the fact."23
[57] But, whatever may have been its nature in the past, the
pertinent characteristic of a passport in the present controversy
is that it is a requisite for going abroad. And thus it has become
a tool with which the Department of State can prevent the presence
of any American citizen in a foreign country.
[58] A statute,24 alluded to by the Supreme Court in Johnson v.
Eisentrager,25 provides that, whenever the President learns that a
citizen of the United States has been deprived of his liberty by
any foreign government, he must demand the reasons and, if it
appears the imprisonment is wrongful, demand release and use such
means not amounting to war as are necessary to effectuate the
release. So, while a passport as such does not bestow rights of
protection which a citizen does not otherwise have, it does, as a
permit to travel abroad, allow him to put himself in a position
where he may invoke the protective power of this government. So
one of the questions here is whether the Secretary may prevent an
American with Communist affiliations from being in a place where
political indiscretion might involve the United States Government
in international complications.
IV
[59] The right to travel. The present dispute over passport
denials is less than a decade old, but its antecedents are to be
found deep in the history of Anglo-American law. The English
sovereign had for many centuries a recognized right to prevent
foreign travel and to recall subjects from abroad.26 Late in the
Eleventh Century Anselm, Archbishop of Canterbury, was forbidden
by William Rufus, son of William the Conqueror, to go to Rome to
receive the pallium from Pope Urban II.27 The Magna Carta, as
signed by John Lackland at Runnymede in 1215, deprived the King of
the right to prevent foreign travel. However John died shortly
afterward, and William Marshall, regent of Henry III, republished
the Charter without the guarantees of freedom of travel.28 In the
following centuries the kings frequently exercised their
prerogative, usually through the issuance of a writ Ne Exeat
Regnum.29 Parliament also exercised the prerogative by passing
statutes which forbade foreign travel to certain classes30 or
which recognized the right of the King to limit travel.31 However
the writ has gradually fallen into disuse. It is most unlikely
that a writ Ne Exeat Regnum would issue in modern England, except
in time of war.32 This does not mean that an Englishman has an
enforceable right to a passport.33
[60] The Articles of Confederation34 and the Constitution of
the United States35 clearly recognized the right of citizens to
travel among the various states. But whether the liberty mentioned
in the Fifth Amendment included liberty to leave this country and
circulate among foreign nations was not so clear. A three-judge
federal District Court recognized in 1952 that a citizen has at
least a limited right to international travel.36 This court has
since recognized that right.37 However the existence of this
limited right does not preclude the existence in the sovereign of
a right to limit travel. The Supreme Court has established the
power of the Government to recall a person from abroad to appear
in a lawsuit, an exercise of the same sort of control over
movement available to the English sovereign through Ne Exeat
Regnum. In Blackmer v. United States38 the Court made the broad
statement:
[61] "What in England was the prerogative of the sovereign
in this respect, pertains under our constitutional system to the
national authority which may be exercised by the Congress by
virtue of the legislative power to prescribe the duties of the
citizens of the United States."
[62] While Blackmer refers to the power to limit foreign travel
as being exercised by the Congress, the power is not solely
congressional. In matters pertaining to war and emergency or to
the foreign policy, the power may reside in the executive or in
both branches jointly. Whatever the theoretical residence of such
power, the power to limit travel has in fact been exercised
through the cooperative efforts of Congress and the President.
During the War of 1812 Congress forbade citizens to travel into
enemy countries without passports.39 During the Civil War
passports were required of all persons entering or leaving the
country.40 In 1861 Secretary of State Seward ordered that
"Until further notice, no person will be allowed to go abroad
from a port of the United States without a passport either from
this Department or countersigned by the Secretary of State".
This action was taken by the executive branch on its own
initiative, without the sanction of Congress.
[63] In 1856 Congress had granted the Secretary of State sole
authority to issue passports.41 The Secretary was authorized to
issue them "under such rules as the President shall designate
and prescribe". In 1918 Congress, leaving intact the broad
discretion inherent in the words just quoted, gave the President
power to make it unlawful to leave the country in time of war
without a passport.42 The President exercised this power by an
appropriate proclamation.43 The period between the two World Wars
saw Congress reaffirm in the executive the broad discretion
declared in the 1856 act, the new language being "may
grant".44 This was in a 1926 act which remains today the
underpinning of congressionally-granted executive power in the
field. That period also witnessed the condification in 1938 of
State Department passport regulations and their affirmation by
executive order.45
[64] The machinery which today enables the State Department to
regulate travel through passport control began to take shape in
June of 1941, when Congress46 amended the act of 191847 to enable
the President to make it a crime to leave the country without a
passport, not only in time of war but also during the existence of
the national emergency proclaimed by the President on May 27,
1941.48 On November 14, 1941, President Roosevelt exercised the
authority over entry and exit vested in him by the amendment.49
President Truman declared the termination of that state of
emergency on April 28, 1952.50 But the termination of the World
War II emergency did not affect the Korean emergency, declared by
President Truman on December 16, 1950.51 Consequently our nation
has been in a continuing state of emergency since May of 1941.
[65] By act of June 27, 1952,52 Congress declared:
[66] "SEC. 215. (a) When the United States is at war or
during the existence of any national emergency proclaimed by the
President, . . . and the President shall find that the interests
of the United States require that restrictions and prohibitions in
addition to those provided otherwise than by this section be
imposed upon the departure of persons from and their entry into
the United States, and shall make public proclamation thereof, . .
.
[67] "(b) . . . and while such proclamation is in force,
it shall, except as otherwise provided by the President, and
subject to such limitations and exceptions as the President may
authorize and prescribe, be unlawful for any citizen of the United
States to depart from or enter, or attempt to depart from or
enter, the United States unless he bears a valid passport."
[68] This statute applies to any national emergency. It would
appear that the Korean emergency, existing when the statute became
law, made the section above quoted immediately operative. Any
doubt on this score was removed by President Truman's proclamation
of January 17, 1953,53 specifically invoking the 1952 act.
[69] Two conclusions emerge from this complex series of laws,
proclamations and orders. First, it is forbidden to leave this
country without a passport. This rule was specifically provided by
the Congress in the 1952 act, by the President in Proclamation No.
3004,54 and by the Secretary in Section 53.1 of his Regulations.55
Second, it is within the power of the Secretary of State to refuse
to issue a passport. This power is lodged in him by the act of
1926,56 as implemented in Section 124 of Executive Order No.
7856;57 is both claimed by the Secretary in Sections 53.1-53.9 of
the Regulations and exercised by him thereunder; and is reaffirmed
by the President in Proclamation No. 3004. The restrictions of the
1952 act upon travel without a passport can be read intelligibly
only in the light of the Secretary's long-recognized power to
refuse a passport.
[70] Shortly after the passage of the 1952 act the Secretary
issued additional regulations to govern the issuance of
passports.58 This was done pursuant to Executive Order No. 7856
(supra) which specifically provided that the Secretary may make
rules additional to the rules contained therein, so long as they
are not inconsistent therewith.
V
[71] The regulations of the Department. The regulations which
the Secretary promulgated59 provide in substance that, in order
that persons who support the world Communist movement may not
through the use of United States passports further the purposes of
that movement, no passport shall be issued to persons who are
members of the Communist Party or to certain others who are
believed to engage in activities which will advance that movement;
that a person whose application is tentatively denied under the
foregoing will be notified in writing, including notice of the
reasons as specifically as security considerations permit; that
such person will be entitled to present his case informally to the
Passport Division and to appear before a hearing officer with
counsel; and that if the decision is adverse it shall be in
writing with reasons and the applicant shall be entitled to appeal
to the Board of Passport Appeals, where he will be accorded a
hearing with counsel. The regulations provide:60
[72] "Oath or affirmation by applicant as to membership in
Communist Party. At any stage of the proceedings in the Passport
Division or before the Board, if it is deemed necessary, the
applicant may be required, as a part of his application, to
subscribe, under oath or affirmation, to a statement with respect
to present or past membership in the Communist Party. If applicant
states that he is a Communist, refusal of a passport in his case
will be without further proceedings."
[73] The substantive part of the regulations61 provides that no
passport shall be issued to certain described classes of persons.
Roughly paraphrased those classes are (1) members of the Communist
Party, (2) persons who have recently terminated Party membership
under certain circumstances, (3) persons who support the Communist
movement under certain circumstances, and (4) persons as to whom
there is reason to believe they are going abroad for the purpose
knowingly of advancing the Communist movement. We do not know from
the record presently before us whether the Secretary would finally
refuse a passport to Dr. Briehl if
the matter were to progress to final decision, and we do not know
in what proscribed class the Secretary might find Dr. Briehl
upon the evidence before him if that evidence caused a refusal of
the passport. And so we intimate no opinion upon the merits of Dr.
Briehl's application; we have no
opinion upon that subject. But, since we must determine the
validity of the procedural provisions of the regulations, we face
the validity of the underlying substantive provisions. We think
those regulations62 are valid as regulations.
[74] The regulations in no way attempt to implement an
unlimited discretion in the Secretary. They provide for peremptory
denial of a passport under only one circumstance, admitted present
membership in the Communist Party (Sec. 51.142). Standards for
denials upon other grounds are set up. That section of the
regulations (51.135) obviously contemplates findings upon facts.
It uses such terms as "under such circumstances as to warrant
the conclusion", "not otherwise rebutted by the
evidence", and "on the balance of all the
evidence". Thus the regulations clearly require facts -
revealed or unrevealed - and an evaluation of information. They do
not provide for an unfettered discretion. Such provisions are the
normal content of statutes or regulations which establish criteria
for administrative action. Moreover, as we read the regulations,
they refer to knowing associations with Communism.63
[75] As we have pointed out, the Communist movement is, in the
view of this Government, an aggressive conspiracy potentially
dangerous to this country. Travel abroad by members of or
adherents to the Communist movement is obviously an easy method of
communication between such persons or organizations in this
country and the prime sources of Communist policy and program in
the Soviet Union and its satellites. Once a person with a passport
is out of this country, this Government has no control over where
he goes. His travel is controlled entirely by whatever countries
he thereafter wishes to leave and to enter. The Department of
State has authority to refuse to facilitate that communication.
[76] In the second place, unless all the major foreign and
fiscal policies of this Government, under two administrations of
opposing political parties, have been a gigantic fraud, it is the
unequivocal duty of the Department of State to prevent
international incidents which might arouse hostile activities on
the part of the Soviet Union or its satellites. To that end the
Secretary may refuse to permit an adherent of the Communist
movement, clothed with American citizenship, from being present in
places where he may readily create incidents or may assert
statutory rights to activity on the part of this Government in his
behalf. The Secretary may preclude potential matches from the
international tinderbox.
[77] As is recognized throughout this opinion, consistently
with the other opinions of this court in this field,64 the
restrictions imposed by these regulations and the underlying
statutes upon the right to travel are impingements upon that phase
of liberty and indirectly upon the exercise of First Amendment
rights. And so the problem in the case is once more the familiar
problem of balancing private right against public requirement.65
Our conclusion is reached by such a balancing. In the
international situation of the present, the reasonable
requirements of national security and interest and the delicate
characteristics of foreign relations outweigh the needs or desires
of an individual to travel, when the Secretary finds the facts to
be such as to preclude grant of a passport under the regulation.
[78] We therefore conclude that persons properly found to come
within Section 51.135 of the Regulations are not illegally denied
any constitutional right if they are refused passports.
[79] It is suggested to us that, since the Internal Security
Act of 195066 made certain provisions pertaining to passports to
members of registered Communist organizations, it preempted the
field and rendered null all other statutes and regulations
relating to Communists and passports. Such a conclusion would have
to be an inference; we find no specific provision to that effect.
We think the inference is not supportable. The 1950 act made it
unlawful for a member of a registered Communist organization to
apply for a passport or to use one, and made it unlawful for any
officer or employee of the United States to issue a passport to
such a member. It prescribed penalties up to $10,000 fine and five
years' imprisonment for violation.67 So the 1950 act relating to
passports is a criminal statute. It applies to only a portion of
the people to whom the Secretary's regulations apply, as is easily
seen by reference to Section 51.135. Moreover the 1952 statute,
making it a crime for any person to leave the country without a
passport during an emergency, was passed after the 1950 act. The
1952 act continued in effect the system of travel control by
passport denial employed since 1941. That fact compels the
conclusion that the criminal sanctions of the 1950 act are in
addition to, not to the exclusion of, that control. Passport
regulations under the later act are not prohibited by the former.
We think the 1950 act did not preempt the field in respect to
passports and adherents to the Communist movement.
VI
[80] The reguirement for an affidavit. In the case at bar Dr. Briehl
was advised in writing that it had been alleged he was a
Communist. He was required to admit or deny that allegation under
oath before the proceeding on his application went further. Dr. Briehl
urges, as we have seen, that he is entitled to be confronted with
witnesses and evidence sustaining the Secretary's suggestions of
Communist affiliations. He says he is entitled to that revelation
without first filing an affidavit in response to the suggestions.
He says this is a requisite of due process. But our judicial
process knows no such requirement. Our judicial process is that a
party must plead before he is entitled to trial. There is nothing
new or novel about that. Dr. Briehl
says he is entitled to know his opponent's evidence before he
pleads. Under the rules of civil procedure, if a defendant party
does not plead, a default judgment is entered against him. We know
of no reason why Dr. Briehl should
not be required to admit or deny the Secretary's allegations
before he gets an evidentiary hearing.
[81] It is said that if Dr. Briehl
should admit being a member of the Communist Party his application
would thereupon promptly be denied, and therefore, it is said, no
administrative remedy is really afforded him. But precisely the
same thing happens to any party to a lawsuit. If he admits his
opponent's allegations of fact he gets no evidentiary hearing; he
gets an oral argument and perhaps a summary judgment against him.
We know of no rule or doctrine that, if a party to a controversy
admits adversary allegations of fact, the proceeding is void if no
evidentiary hearing is thereafter afforded him. It is elementary
that a party must raise an issue of fact in order to get a hearing
on the facts.
[82] In National Council of American-Soviet Friendship v.
Brownell,68 we held, citing several cases, that a party to an
administrative proceeding could not default and still continue to
litigate.
[83] Moreover Dr. Briehl is an
applicant. There is nothing new or novel about requiring an
applicant for a permit or a license to supply pertinent
information under oath. Applicants for radio licenses and air
route certificates must do so, and applicants for marriage
licenses, voting privileges, and business permits must also. And,
failing to supply the required data, the applicant cannot exercise
his right. We know of no reason why an application for a passport
should not be treated by the usual rules pertaining to
applications. If Communist Party affiliations are pertinent to the
Secretary's decision upon the possible consequences or
complications of an applicant's presence in foreign countries or
his roving about foreign areas in present world conditions, we see
no reason why Communist affiliations should not be part of the
data required by the application.
[84] Dr. Briehl complains that the
evidence in respect to the allegations asserted in the Secretary's
advices to him may be in part confidential, and he argues that
such possibility effectively nullifies the due process of the
procedure. He seeks to bring the situation within the doctrine
followed by the Ninth Circuit in Parker v. Lester,69 that, if it
be established in advance that a proffered administrative remedy
will not afford due process, the remedy need not be pursued. It is
true that a passport denial may be based upon confidential
information. But due process of law is a term of variable
content.70 The necessity for secrecy in the conduct of foreign
affairs has been asserted, seemingly without question, ever since
President Washington refused to submit to the House of
Representatives the documents relating to the Jay Treaty.71 The
Supreme Court said in the Curtiss-Wright case:72
[85] "The marked difference between foreign affairs and
domestic affairs in this respect is recognized by both houses of
Congress in the very form of their requisitions for information
from the executive departments. In the case of every department
except the Department of State, the resolution directs the
official to furnish the information. In the case of the State
Department, dealing with foreign affairs, the President is
requested to furnish the information 'if not incompatible with the
public interest.' A statement that to furnish the information is
not compatible with the public interest rarely, if ever, is
questioned." And recognition of the necessity for secrecy in
foreign affairs, coupled with a strong admonition to the judiciary
against any attempts on its part to peer into or to unveil such
confidential material, is contained in the Court's opinion in the
Chicago & Southern Air Lines case, from which we have quoted.
That case concerned the right of an American company to do
business abroad. That was a right of the applicant if he could
meet the appropriate specifications. But the Supreme Court
specifically and emphatically pointed out that the President could
deny the application for secret and confidential reasons. We know
of no reason why an individual's right to travel abroad is to be
treated by different constitutional standards than is his right to
do business abroad. And we know of no reason why treatment of
alleged Communist affiliation is to be put upon a preferred basis
as compared with ordinary commercial infirmities or adverse
suggestions.
[86] Further justification for secrecy in a case of this type
is supplied by the fact that the nation is in a state of national
emergency, caused by the infiltration program of the Communist
movement. During such an emergency cabinet officers may be forced
to act on the basis of information the publication of which is
inconsistent with national security.When the Secretary of State
avows that in the interest of national security he cannot spread
certain information on an open record, and explains with as much
particularity as possible the reasons why he cannot do so, courts
must rely upon his integrity and accept his statement.
[87] We held in Boudin v. Dulles73 that, where a passport has
been denied by the Secretary on the authority of a specific
regulation, he (the Secretary) must make findings in writing
responsive to the requirements of that regulation, and in such a
case must state whether the findings are based on evidence openly
produced or on secret information and, if the latter, "should
explain with such particularity as in his judgment the
circumstances permit the nature of the reasons why such
information may not be disclosed." We adhere to that ruling.
We are of the view that due process in passport proceedings does
not prevent the use of confidential information when foreign
affairs or the national security is involved.
[88] In summary on this point we are of opinion that, if a
person falls within one of the classes described in the
regulations, the Secretary may refuse him a passport; and if
follows that, if it be alleged he is in one of those classes and
he refuses to admit or deny the allegation, the passport may be
refused.
[89] From the foregoing basic considerations some conclusions
are easily reached. We summarize. In the deliberate judgment of
this Government the Communist movement is today a conspiracy for
world domination sufficiently threatening to the security of this
nation to justify the expenditure of billions of dollars every
year to thwart its ambitions.Limitations and prohibitions upon
leaving one's country and traveling abroad have been enforced in
periods of stress since time immemorial. It would be idle, if not
ridiculous, in view of the absorption of the whole world in the
problem of the Communist program and of the extent of the
attention and activity of our own Government in that respect, for
any court to say the present is not a period of stress in
international affairs. The present limitations upon travel
effectuated by passport control are authorized by statute and by
presidential proclamation. They are, as we said in Shachtman v.
Dulles,74 an impingement upon a natural right of a citizen to
travel. But no right, even the right to life, is absolute, and so
the inquiry must be whether the impingement is valid. Executive
action in the field of foreign affairs has been clothed in secrecy
since the foundation of the Republic, and the Supreme Court has
invariably protected that secrecy and repeatedly warned the
judiciary not to invade that realm of executive prerogative. The
rule has been applied by the Court even where the matter involved
was transportation over international routes. Requirements that
one admit or deny an adversary's allegations of fact before the
right to an evidentiary hearing arises are elementary in judicial
process; a fortiori in quasi-judicial process. And requirements
that an applicant for a permit submit prescribed pertinent data as
a prerequisite to consideration of his application are usual and
valid in administrative procedure.
[90] Analyzed to its underlying elements the critical problem
in the case before us is simply whether the Secretary of State may
decline to issue a passport to a person who refuses to admit or
deny that he is a member of the Communist Party. We think he may.
Or to state the problem in different terms, it is whether
membership in or adherence to the Communist Party is a valid
subject of inquiry prerequisite to the issuance of a passport
under world conditions. We think it is.
[91] We are of opinion that the disputed regulations of the
Secretary are valid and that Dr. Briehl
did not qualify himself for a passport under them. The judgment of
the District Court, granting the Secretary's motion for summary
judgment is
[92] Affirmed.
IN AGREEMENT
[93] WASHINGTON, Circuit Judge (concurring in the result).
[94] The record discloses a "tentative" refusal by
the Passport Office to renew Dr. Briehl's
passport, and an official determination by that Office not to
render a final decision on the matter because of Dr. Briehl's
refusal at his hearing to furnish an affidavit, as provided for in
Section 51.142 of the Passport Regulations, "with respect to
present or past membership in the Communist Party." Unlike
the applicant in Robeson v. Dulles, 98 U.S.App.D.C. 313, 235 F.2d
810, certiorari denied, 1956, 352 U.S. 895, 77 S. Ct. 131, 1 L.
Ed. 2d 86, the appellant in this case has pursued the
administrative and judicial steps open to him to raise the
question whether the Secretary of State may validly require such
an affidavit as a condition precedent to the rendering of a final
decision.That question must now be decided.
[95] The Secretary seeks to uphold his power to elicit
information as to Communist Party membership as a procedure
incident to the substantive power to restrict foreign travel
through passport denial. Affidavit requirements of this sort are
ordinarily valid if the information elicited is relevant to the
exercise of a valid power. Cf. Garner v. Board of Public Works,
1951, 341 U.S. 716, 71 S. Ct. 909, 95 L. Ed. 1317.1 Implicit in
the decisions of this court is the holding that the Secretary
possesses a substantial measure of authority to restrict travel by
passport denial.2 While the precise extent of that authority is
still in process of being defined, Congress has not been silent or
inactive. In the 1941 travel control statute, 8 U.S.C.A. § 1185,
Congress provided, in substance, that when the President has
proclaimed a national emergency and when he has found that the
interests of the United States require additional restrictions on
the departure of persons from the United States, it shall be
unlawful for a citizen to leave the country without a valid
passport. As Judge Prettyman points out, this statute has become
operative. I read it as having been intended to authorize the
Secretary to control, by passport denial, the travel of those
whose journeying abroad is reasonably found to be contrary to the
interests of the United States.
[96] In the Internal Security Act of 1950, Congress made the
following legislative finding, whose validity today can hardly be
subject to challenge:
[97] "Due to the nature and scope of the world Communist
movement, with the existence of affiliated constituent elements
working toward common objectives in various countries of the
world, travel of Communist members, representatives, and agents
from country to country facilitates communication and is a
prerequisite for the carrying on of activities to further the
purposes of the Communist movement." 50 U.S.C.A. § 781(8).
[98] Congress implemented that finding by Section 6 of the
Internal Security Act, 50 U.S.C.A. § 785, a provision which the
framers of the Act no doubt thought would come into effect at a
much earlier date than in fact has proved possible. But the
congressional finding remains as an admonition to the executive
branch to use its authority in all lawful ways to control the
"travel of Communist members, representatives, and
agents" so as not to facilitate communication or otherwise
"further the purposes of the Communist movement."
Therefore, I have no doubt that the Secretary has the power - in
some cases at least - to deny passports on grounds to which past
or present membership in the Communist Party "may prove
relevant." Garner (supra) 341 U.S. at page 720, 71 S. Ct. at
page 912.
[99] It must be admitted, I think, that the affidavit
requirement does infringe Dr. Briehl's
interest in maintaining privacy and upon interests protected by
the First Amendment.3 But if the interests of the public are also
involved, the problem is "to determine which of these two
conflicting interests demands the greater protection under the
particular circumstances presented." American Communications
Ass'n v. Douds (supra) 339 U.S. at page 399, 70 S. Ct. at page
684. The information as to Communist Party membership is asked for
in connection with a passport application and might prove relevant
to a valid denial of a passport. Under all the circumstances, it
seems clear that the benefit to the public order, in having
information of this sort available to the Secretary to enable him
to exercise his lawful authority, substantially outbalances any
abridgement of individual interests that may result. As Mr.
Justice Murphy observed, concurring in West Virginia State Board
of Education v. Barnette, 1943, 319 U.S. 624, 645, 63 S. Ct. 1178,
1188, 87 L. Ed. 1628: "The right of freedom of thought and of
religion as guaranteed by the Constitution against State action
includes both the right to speak freely and the right to refrain
from speaking at all, except insofar as essential operations of
government require it for the preservation of an orderly society,
- as in the case of compulsion to give evidence in court." In
the exercise of his powers over the granting or withholding of
passports, the Secretary is similarly entitled to relevant
information.
[100] For these reasons, I find no infirmity in the statutory
and regulatory system which authorizes the Secretary to withhold a
passport from any person who, by refusing to furnish the required
affidavit, fails to complete his application.4 Appellant has not
suggested any reason or rule of law that would require a
governmental agency to proceed to hear and determine on its merits
the claim of a person seeking to exercise a right or privilege,
when the claimant declines to file a complete application, as
required by statute or by a regulation having - like the present
one - the force of law.5 Surely if a person desiring to vote
declines to answer a question which may prove relevant to a valid
ground of denial - such as his age, or where and when he last
voted - an election board may thereupon refuse to permit him to
vote until the question is answered, and need not make a
considered determination that in fact he is ineligible.And even if
the decision to deny a right could be said to require an exercise
of discretion, I do not see why the decision-maker must act in
spite of the fact that he has not received answers to relevant
questions which were properly asked, and which may provide
information necessary for a proper decision.
[101] It is important to bear in mind the distinction, which
the Supreme Court pointed out in Konigsberg v. State Bar of
California, 1957, 353 U.S. 252, 77 S. Ct. 722, 1 L. Ed. 2d 810,
between the two courses of governmental action that can follow a
refusal to answer a particular question propounded by a government
agency. In Konigsberg, an adverse inference was drawn from a
refusal to answer, and governmental action - denial of bar
membership - was based in part on this inference. The Court held
the inference to be unreasonable, since the refusal appeared to be
based on a good faith reliance on a constitutional privilege and
therefore would not necessarily give rise to the adverse inference
which the State had drawn. On the other hand, in the case at bar,
no adverse inference was drawn from a refusal to answer. Here the
government agency asserted its right to have certain information
which was relevant to the exercise of valid authority, and
declared in advance that it would not proceed until the
information was forthcoming. This is precisely the sort of
situation which the Court in Konigsberg contrasted with the
inference-drawing approach that had been used there. As to this
situation, the Court indicated that a serious First Amendment
question would be raised, as has been recognized in this opinion,
and that there would be a question of fairness courses of
governmental action that can consequence of failure to answer.
Here the regulations plainly indicate the result of a refusal to
answer.
[102] At this stage we are concerned only with a request for
identification of affiliation vel non, unaccompanied by any direct
penalty stemming from such identification. "No doubt issues
like those now before us cannot be completely severed from the
political and emotional context out of which they emerge. For that
very reason adjudication touching such matters should not go one
whit beyond the immediate issues requiring decision."
American Communications Ass'n v. Douds (supra) 339 U.S. at page
416, 70 S. Ct. at page 693 (Frankfurter, J., concurring in part).
The question whether past or present membership in the Communist
Party is in itself sufficient to support denial of a passport is
not before us: there has not here been a denial based on such
membership.6
[103] It is also unnecessary and inappropriate for us to decide
such questions as whether the Secretary's regulations are in every
particular valid, whether he is justified in using confidential
information, whether he must always hold a hearing, and the like.
We need not in the present case attempt fully to define the scope
of the Secretary's power, or that of the courts. We should do no
more than decide the question actually before us.
[104] MINORITY OPINION
[105] BAZELON, Circuit Judge, with whom EDGERTON, Chief Judge,
concurs (dissenting).
[106] The Secretary of State says his regulations, pursuant to
which he denies passports to persons who "support the
Communist movement," are a valid exercise of discretion
delegated to him by the President. I think they are invalid
because (1) the President did not undertake to delegate the
discretion the Secretary claims and (1) the President himself did
not have this discretion.
[107] For many years the Secretary of State has claimed an
unlimited discretion to deny passports.1 During the greater part
of our history, when a passport was merely a comfort to the
traveller, but not a necessity,2 his claim went unchallenged.
Since 1941, however, a passport has been a travel necessity,3 and
when the Secretary began denying or revoking passports on such
grounds as "activities contrary to the best interests of the
United States," or Communist membership or support,
applicants turned to the courts for relief.4
[108] Bauer v. Acheson, D.C.1952, 106 F.Supp. 445, was the
first reported case. There the Secretary based his authority on
the President's inherent foreign relations power, and on the
provision of 22 U.S.C.A. 211a that the Secretary "may grant .
. . passports . . . under such rules as the President shall
designate and prescribe . . .." The court held there was no
authority to refuse or revoke a passport without notice and
hearing. Less than two months later and presumably as a result of
that decision, the Secretary promulgated the regulations now
before us, declaring Communist supporters ineligible for passports
and establishing a notice and hearing procedure.5 Until then, the
only substantive passport qualification ever imposed by any
statute6 or regulation was citizenship.7
[109] As authority for his new regulations, the Secretary
relied on 22 U.S.C.A. § 211a,8 the same statute he had relied on
in Bauer. He continued this reliance in later cases. In the
present case he says: "In the light of the broad language of
this statute, there is no occasion here to determine whether the
President's plenary executive power over foreign affairs in itself
furnishes sufficient authority to the Secretary to deny passports
to American citizens in accordance with the reasonable standards
prescribed by him."9 But he adds that "if some
additional source of authority were needed, it is supplied by the
travel control statutes which Congress has repeatedly
enacted";10 and "the language of the [travel control]
statute makes it plain that during [a proclaimed emergency] this
authorization becomes incorporated, in effect, into § 211a
itself."
[110] But in Stewart v. Dulles, 101 U.S.App.D.C. 280, 248 F.2d
602, briefed and argued after the present case and now awaiting
decision, the Secretary conceded that § 211a "confers no
substantive power," and he "[assumed]" that he
"had no authority to impose this kind of direct restraint
upon travel." "It was for this very reason," he
said, "that Congress enacted what is now 8 U.S.C.A. § 1185,
authorizing the President, in times of war or national emergency,
to use his inherent powers in the field of passport issuance as a
means of directly controlling the travel of citizens." The
argument now is that (1) 22 U.S.C.A. § 211a and the inherent
executive power, though ineffective to control travel, give the
Secretary discretion as to passport issuance; and (2) under 8
U.S.C.A. § 1185, upon proclamation of an emergency by the
President, any person to whom the Secretary, in his discretion,
refuses a passport, may not leave the country. Thus, the Secretary
claims that Congress has delegated to him, through the President,
the power to establish categories of persons ineligible to leave
the country.
I. The Claimed Delegation
[111] The authority conferred on the President by 22 U.S.C.A.
§ 211a was exercised through Executive Order No. 7856, on March
31, 1938.11 The Executive Order designated only one general
category of passport eligibility, that created by 22 U.S.C.A. §
212, namely, persons who are citizens of the United States. 22
C.F.R. § 51.2 (1949). Beyond that, the order confined itself to
specifying the formal requirements of the passport application
(e.g., the type and size of photographs to be attached), id., §
51.23q, and the evidence of citizenship to be furnished, and
providing for amendment, renewal and extension of passports and
specifying the fees to be collected. In addition, it authorized
the Secretary of State, "in his discretion to refuse to issue
a passport . . ." and "to make regulations . . .
additional to the rules in this part and not inconsistent
therewith." Id., §§ 51,75, 51.77. Pursuant to this latter
authority, the Secretary, on the day of the President's order,
issued Departmental Order 749, promulgating the Department's
regulations, consisting merely of procedural implementation of the
President's rules.*fn12
[112] The regulations in question in the present case, which
the Secretary added four years later and after the Bauer decision,
were the first attempt, by regulations issued under 22 U.S.C.A. §
211a, to affect anything more than procedure or form.*fn13 In view
of the purely procedural nature of the President's rules, his
accompanying grant to the Secretary of authority to make
"additional . . . and not inconsistent" regulations
confers no power to create substantive disqualifications.
[113] Nor did the President's Proclamation No. 3004,*fn14
making operative the travel control provision of 8 U.S.C.A. §
1185, give the Secretary this authority. Section 1185 prohibits
departure from the United States without a valid passport during a
proclaimed emergency, "except as otherwise provided by the
President and subject to such limitations and exceptions as the
President may authorize and prescribe . . .." When the
proclamation was issued, regulations existing under an earlier
proclamation were in force, providing generally that no person
could enter or leave the country without a valid passport, except
for travel to and from certain countries. 22 C.F.R. §§ 53.1-53.9
(1949). Proclamation No. 3004 did not undertake to grant power to
the Secretary to control travel by establishing additional
categories of passport ineligibility. It merely declared that
departure and entry would be subject to the already established
travel control regulations, 22 C.F.R. §§ 53.1-53.9, referring to
them specifically and incorporating them into the
proclamation.*fn15 It added an authorization to the Secretary
"to revoke, modify or amend such regulations as he may find
the interests of the United States to require." This
authorization, like the authorization of Executive Order No. 7856
to issue "additional" passport regulations, must be read
in its context. Thus read, it grants the Secretary discretion of
the type already exercised in his existing travel control
regulations, namely, to determine which parts of the world can be
visited by Americans only if they have passports, but not to
determine which Americans are to receive passports.
[114] Thus neither Executive Order No. 7856, which confers upon
the Secretary authority received by the President under 22 U.S.C.A.
§ 211a, nor Proclamation No. 3004, which confers upon the
Secretary authority the President holds under 8 U.S.C.A. § 1185,
undertakes to delegate to the Secretary any power to create
substantive passport disqualifications.
[115] Nor could the President delegate such power, for neither
statute conferred it upon him.
II. The President's Statutory Power
[116] A. The Passport Statutes Do Not Purport to Confer the
Power Here Claimed.
[117] Section 211a of 22 U.S.C.A. says nothing about categories
of ineligibility. Indeed, the Secretary concedes that the purpose
of the Act of August 18, 1856,*fn16 from which § 211a derives,
was to prohibit passport issuance by anyone other than the
Secretary of State. Nothing in the legislative history of the 1856
statute suggests that the words "may grant and issue"
confer power to set up substantive categories of ineligibility.
From the little that history reveals, it appears that the purpose
of Congress was merely to control the procedure of passport
issuance.*fn17 Fairly read § 211a grants the Executive only such
discretion as may be necessary for elaborating a procedure for
issuing passports, e.g., as to the type and quantum of evidence of
citizenship.*fn18 And so the statute was read by our Presidents in
former times.*fn19
[118] Nor did 8 U.S.C.A. § 1185 authorize the President to
create such substantive passport disqualifications as are
contained in the regulations before us. Subsection (a) of § 1185
did not purport to give the President power to establish criteria
for restricting anyone's right to travel. It merely authorized him
to invoke restrictions set forth in the statute if he found that
"those provided otherwise than by this section" were
inadequate to protect the public safety. Moreover, when the Act
was first adopted in 1918 and when it was reenacted in 1941,*fn20
there were no restrictions on citizens' travel "provided
otherwise than by this section." What Congress had in mind,
therefore, in § 1185(a), was the problem of movements of aliens,
not citizens. And Congress set forth, in subparagraphs (1) through
(7) of subsection (a), a system of exit and entry permits to
control movements of aliens.
[119] It is subsection (b) of § 1185 which is relevant to
citizens. That subsection provided that, upon issuance of the
President's proclamation, "it shall, except as otherwise
provided by the President, and subject to such limitations and
exceptions as the President may authorize and prescribe, be
unlawful for any citizen to depart from or enter, or attempt to
depart from or enter, the United States unless he bears a valid
passport." Thus citizens were forbidden to travel without
passports, but the President was authorized to establish
conditions and exceptions to this prohibition. But the subsection
did not authorize the President to decide which categories of
citizens might receive passports.
[120] Though neither 22 U.S.C.A. § 211a nor 8 U.S.C.A. § 1185
explicitly confers the authority the Secretary claims, he urges us
to read them through a wide lens and find in them a congressional
intent to authorize his regulations. His contention comes to this,
that Congress has by implication, though not expressly, authorized
the Executive to decide which Americans shall be confined within
our boundaries. In my opinion such an intention may not be read
into the statutes because (1) it would conflict with other
expressions of congressional policy and (2) it would raise grave
constitutional doubts.
[121] B. The Secretary's Reading of the Statutes Conflicts with
Congressional Policy.
[122] Almost a century ago, Congress declared that "the
right of expatriation is a natural and inherent right of all
people, indispensable to the enjoyment of the rights of life,
liberty, and the pursuit of happiness," and decreed that
"any declaration, instruction, opinion, order, or decision of
any officers of this government which denies, restricts, impairs,
or questions the right of expatriation, is hereby declared
inconsistent with the fundamental principles of this
government." 15 Stat. 223-224 (1868), R.S. § 1999, 8 U.S.C.
§ 800 (1940).*fn21 Although designed to apply especially to the
rights of immigrants to shed their foreign nationalities, that Act
of Congress "is also broad enough to cover, and does cover,
the corresponding natural and inherent right of American citizens
to expatriate themselves." Savorgnan v. United States, 1950,
338 U.S. 491, 498 note 11, 70 S. Ct. 292, 296, 94 L. Ed. 287.*fn22
The Supreme Court has held that the Citizenship Act of 1907 and
the Nationality Act of 1940 "are to be read in the light of
the declaration of policy favoring freedom of expatriation which
stands unrepealed." Id., 338 U.S. at pages 498-499, 70 S. Ct.
at page 296.That same light, I think, illuminates 22 U.S.C.A. §
211a and 8 U.S.C.A.§ 1185. Since expatriation is today impossible
without leaving the country,*fn23 the policy expressed by Congress
in 1868 and never repealed precludes a reading of the passport and
travel control statutes which would permit the Secretary of State
to prevent citizens from leaving.
[123] The Secretary's construction of the statutes would
impinge also upon the Internal Security Act of 1950.*fn24 Congress
there made it unlawful for a member of a Communist organization to
apply for or use a passport, but only after such organization has
registered under the Act or has been finally ordered et do so.
Neither of those events has occurred.*fn25 Moreover, the
prohibition was circumscribed by procedural safeguards not found
in the Secretary's "Communist supporter" regulations
involved here; and it was substantively limited to
"members" of the proscribed organization, whereas the
Secretary's regulations apply "regardless of the formal state
of [the applicant's] affiliation with the Communist party . .
.."*fn26 These declarations of congressional policy make it
unlikely that by other statutes Congress intended to authorize a
different policy.*fn27 "The legislative process is especially
qualified and the administrative process is especially unfit for
the determination of major policies that depend more upon
emotional bent and political instincts than upon investigation,
hearing and analysis." Davis, Administrative Law 57 (1951).
[124] I would not construe the statutes as conferring upon the
Secretary by implication broad powers which they do not explicitly
confer, United States v. Minker, 1956, 350 U.S. 179, 190, 76 S.
Ct. 281, 100 L. Ed. 185, especially when serious restraints on
liberty are entailed. Ex parte Endo, 1944, 323 U.S. 283, 299-300,
65 S. Ct. 208, 89 L. Ed. 243.
[125] C. The Secretary's Reading of the Passport Statutes Is
Constitutionally Doubtful.
[126] The broad construction the Secretary would have us place
on the passport statutes would raise grave constitutional
doubts.*fn28 Statutes must be construed narrowly if to do so
avoids a serious constitutional question. United States v. Rumely,
1953, 345 U.S. 41, 46, 73 S. Ct. 543, 97 L. Ed. 770; United States
v. Witkovich, 353 U.S. 194, 77 S. Ct. 779, 1 L. Ed. 2d 765.
[127] We recognized in Shachtman that the individual's right to
travel is a natural right protected by the Constitution.*fn29
Since denial of a passport now abridges that right, passport
applicants are entitled to both the procedural*fn30 and
substantive*fn31 safeguards of the Fifth Amendment. The broad
interpretation urged by the Secretary would require us to decide
whether it is consistent with due process of law, and with First
Amendment rights,*fn32 to deprive an individual of so large a part
of his liberty under the standards and procedures the Secretary
employs; and whether, if Congress possesses such power, it may
validly delegate to the Secretary or the President a
"discretion . . . unconfined and vagrant . . . [not]
canalized within banks that keep it from overflowing."*fn33
[128] The word "Communist" is not an incantation
subverting at a stroke our Constitution and all our cherished
liberties. If today the threat of Communism justifies confining
within our boundaries any citizen who will not swear that he is
not a Communist,*fn34 tomorrow the same logic will justify control
of movement from one state to another, for that is no less useful
in communication than travel abroad. By no great extension of the
court's reasoning, an oath can be required as a condition to the
enjoyment of every other right we have. Food, clothing, shelter,
education, recreation - all help to sustain the individual,
develop his powers, and make him a more dangerous antagonist.
[129] The due process problem is not avoided by reliance upon
Galvan v. Press, 1954, 347 U.S. 522, 74 S. Ct. 737, 98 L. Ed. 911;
nor the First Amendment problem by reliance upon American
Communications Ass'n v. Douds, 1950, 339 U.S. 382, 70 S. Ct. 674,
94 L. Ed. 925.
[130] In holding in Galvan that Congress could constitutionally
provide for deportation of an alien who becomes a Communist after
entry, the Supreme Court said: "The power of Congress over
the admission of aliens and their right to remain is necessarily
very broad, touching as it does basic aspects of national
sovereignty, more particularly our foreign relations and the
national security."*fn35 The greater power which the
Government possesses in respect of aliens*fn36 may legitimatize
treatment which could not lawfully be directed against citizens.
Galvan provides no constitutional basis for banishing a citizen
who becomes a Communist.
[131] So far as the First Amendment problem is concerned,
whether we apply the "clear and present danger
test,"*fn37 or some aspect of the "reasonable
relation" test,*fn38 we are engaged in weighing the
individual's need to be free against the Government's need to
restrain him. Each case is bound to turn on the nature of the
freedom involved, the public detriment it conflicts with and the
type of restraint imposed. It is unlikely that a case arising in
one context will determine a case arising in another. Douds falls
far short of determining our present problem.
[132] In Douds the Court upheld the constitutionality of §
9(h) of the National Labor Relations Act, 29 U.S.C.A. § 159(h)
withdrawing N.L.R.B. privileges from unions whose officers fail to
submit non-Communist affidavits. The Court found that, since
unions are clothed by Federal law with great powers for good or
evil, "the public interest in the good faith exercise of that
power is very great." 339 U.S. at pages 401-402, 70 S. Ct. at
page 686. It observed that (1) "Section 9(h) touches only a
relative handful of persons, leaving the great majority of persons
of the identified affiliations and beliefs completely free from
restraint," id. 339 U.S. at page 404, 70 S. Ct. at page 687;
(2) there is no constitutional right to occupy the position of a
labor leader in the sense that "the loss of [the] particular
position [would be] the loss of life or liberty," id. 339
U.S. at page 409, 70 S. Ct. at page 689; (3) 9(h) imposes no
direct restraint on freedom of belief or association, since its
"discouragements" operate "only against the
combination of [particular] affiliations or beliefs with occupancy
of a position of great power over the economy of the
country," id. 339 U.S. at pages 403-404, 70 S. Ct. at page
686;*fn39 and (4) § 9(h), if not complied with, makes it not
impossible, but only more difficult for unions to remain
effective, id. 339 U.S. at page 390, 70 S. Ct. 679.*fn40
[133] Whether travel by Communists is a danger on a par with
their occupancy of powerful union offices is at least
questionable. Prevention of travel does not prevent communication.
Conspirators could still use the mails, cables, telephones, radio
and, not least, foreign embassies and consulates in the United
States. The discomfiture of a few individuals who would have to
send messages rather than make speeches*fn41 may not, in the
constitutional balancing process outweigh the citizen's right to
travel. On the other side of the scales, it appears that (1) the
passport statutes, unlike that in Douds, touch not a handful of
persons, but many thousands (in the Secretary's view, as many
thousands as he may choose to suspect); (2) unlike the statute in
Douds, these involve a constitutionally protected right to travel;
(3) they not only impose what Douds called an indirect restraint
on First Amendment rights by "discouragement" of freedom
of belief and association, but also directly affect the right to
travel which may itself be a First Amendment right;*fn42 and (4)
these statutes make travel not difficult, but impossible.
[134] If the design of the passport statutes, in depriving an
individual of the right to travel, is to prevent him from making
statements abroad critical of or embarrassing to our policies, or
offensive to our political teste, they are the very type of
legislation the First Amendment forbids.*fn43 Thomas v. Collins,
1945, 323 U.S. 516, 65 S. Ct. 315; Near v. Minnesota, 1931, 283
U.S. 697, 51 S. Ct. 625, our political taste, they are the very
travel on account of "political affiliations and
beliefs," they are expressly condemned in Douds: "[such]
circumstances [are] ordinarily irrelevant to permissible subjects
of government action." 339 U.S. at page 391, 70 S. Ct. at
page 680. It is most frequently argued, in justification of the
power the Secretary claims, that travel of Communists may serve to
promote an international conspiracy. Whether, under the Douds*fn44
reasoning, that possibility justifies these regulations and puts
to rest the constitutional doubts that arise is open to serious
question.
[135] Another alleged reason for abrogating the constitutional
right to travel is that the American abroad may not only talk, but
may also act in ways that conflict with our policies and interests
and tend to cause international incidents.The Secretary of State
embodies that reason in 51.136 of his regulations,*fn45 which is
not invoked in this case.
[136] During a recent visit to the United States by a foreign
chief of state at the invitation of the President, an American
mayor declared that the guest was unwelcome in his city. That
announcement could hardly have been more prejudicial to our
foreign relations if the mayor had been abroad when he made it.
Yet no one has suggested that he could constitutionally have been
prevented from making his announcement. At home our citizens are
as free to do lawful acts as they are to speak their minds. The
expectation that they may do things abroad which violate no laws
is, I think, an insufficient basis for abrogating their right to
leave the country.
[137] If it is the fear of illegal conduct which purportedly
justifies travel restriction, a factor which may tip the
constitutional scale is "the availability of more moderate
controls than those which the state has imposed." Mr. Justice
Frankfurter, concurring in Dennis v. United States, 1951, 341 U.S.
494, 542, 71 S. Ct. 857, 95 L. Ed. 1137, quoting Freund, On
Understanding the Supreme Court. There are penal sanctions against
the commission or the attempt or conspiracy to commit espionage,
sabotage, treason, sedition and subversion.*fn46 The Internal
Security Act deals with conspiracies to do anything which would
substantially contribute to the establishment of a
foreign-directed totalitarian dictatorship.*fn47 For persons who
become or remain members of the Communist Party with knowledge, of
its violent objectives, we have the Communist Control Act of
1954.*fn48 We have statutes dealing with persons who act as agents
of a foreign government,*fn49 or those who have
"correspondence" with a foreign government with intent
to influence its measures in relation to disputes or controversies
with our Government, or to defeat the measures of the United
States.*fn50 Our law even prohibits leaving the country with
intent to avoid prosecution or punishment for certain listed
offenses or to avoid giving testimony in certain criminal
proceedings.*fn51 In that they require proof of criminality and
provide trial by jury, these statutes, despite their severe
penalties, are more moderate controls than those the Secretary
imposes. He claims that the peril involved in the possible
machinations of such persons would justify a statute permitting
him to deprive them of the right to travel even though he has no
evidence which would justify prosecuting them under any of the
penal statutes. I think it very doubtful that a statute could
constitutionally grant the power to confine citizens to the
country in such circumstances.*fn52
[138] Section 1732 of 22 U.S.C.A. calls upon the President to
"use such means, not amounting to acts of war, as he may
think necessary and proper to obtain or effectuate the
release" of an American citizen "unjustly deprived of
his liberty by or under the authority of any foreign
government." The majority says that since "an American
with Communist affiliations" who gets into trouble abroad
through his "political indiscretion" may invoke this
statute, the Secretary of State must have the power to prevent the
citizen from going abroad. But the American who becomes embroiled
with foreign authorities can only request the aid of his
Government; he cannot compel it. United States ex rel. Keefe v.
Dulles, 1954, 94 U.S.App.D.C. 381, 384-385, 222 F.2d 390, 393-394,
certiorari denied, 1955, 348 U.S. 952, 75 S. Ct. 440, 99 L. Ed.
743.
[139] That the purported need to confine citizens to the
country is claimed to spring from emergency conditions does not
dispense with their constitutional rights.*fn53 Mr. Justice
Jackson pointed out in his concurring opinion in Youngstown Sheet
& Tube Corp. v. Sawyer, 1952, 343 U.S. 579, 649-650, 72 S. Ct.
863, 877, 96 L. Ed. 1153:
[140] "The appeal, however, that we declare the existence
of inherent powers ex necessitate to meet an emergency asks us to
do what many think would be wise, although it is something the
forefathers omitted. They knew what emergencies were, knew the
pressures they engender for authoritative action, knew, too, how
they afford a ready pretext for usurpation. We may also suspect
that they suspected that emergency powers would tend to kindle
emergencies."
[141] The constitutional questions I have discussed are, in my
view, not before us for decision. I mention them, as the Supreme
Court said in Ex parte Endo, 1944, 323 U.S. 283, 299-300, 65 S.
Ct. 208, 217, 89 L. Ed. 243, ". . . not to stir the
constitutional issues which have been argued at the bar but to
indicate the approach which think should be made to an Act of
Congress or an order of the Chief Executive that touches the
sensitive area of right specifically guaranteed by the
Constitution. . . . We must assume, when asked to find implied
powers in a grant of legislative or executive authority, that the
law makers intended to place no greater restraint on the citizen
than was clearly and unmistakably indicated by the language they
used."
III. The President's Inherent Power
[142] The Secretary of State has always treated it as a matter
within his own discretion whether he would give a travelling
citizen a document surrounding him with the aura of this
Government's protection and commending him to other governments.
In Shachtman we noted the authorities "which have recognized
a great breadth of Executive authority and discretion" in
this regard.*fn54 But, we pointed out: "Now it is unlawful
for a citizen to travel to Europe and impossible to enter European
countries without a passport."*fn55 The question is whether
the Executive has power, by withholding a passport, to confine a
citizen within the United States. The Constitution grants no such
power. But the Secretary purports to find it in "the very
delicate, plenary and exclusive power of the President as the sole
organ of the federal government in the field of international
relations . . .." United States v. Curtiss-Wright Export
Corp., 1936, 299 U.S. 304, 320, 57 S. Ct. 216, 221.
[143] Numerous cases both before and after Curtiss-Wright
support the proposition that the President has broad powers in the
field of foreign relations. But there is a great gulf between the
powers involved in those cases and the power the Secretary claims
here. Those cases all relate in some direct fashion to the
Executive's traditional power to do things which depend upon
negotiations with foreign sovereignties or which bear directly
upon our relations with foreign governments. What the Court upheld
in Curtiss-Wright was the President's "power to negotiate
with foreign governments."*fn56 It sustained delegation to
the President of the function of declaring an embargo of munitions
sales, because the function was to be exercised "after
consultation with the governments of other American Republics and
with their cooperation, as well as that of such other governments
as [the President] may deem necessary . . .."*fn57 The other
cases have recognized that it is for the Executive, or the
Executive with Congress, free from judicial interference, to deal
with such matters as recognition of foreign governments,*fn58
assessment of treaty obligations,*fn59 resolution of disputed
sovereignites,*fn60 acquisition of new lands,*fn61 exclusion*fn62
or expulsion*fn63 of aliens, imposition of emergency controls over
alien property,*fn64 establishment of an international war crimes
tribunal,*fn65 allocation of an international air route,*fn66 or
creation of an international "Mixed Claims
Commission."*fn67 None of the "foreign affairs"
cases, it has been observed, "involved a situation where the
Executive action was specifically directed at restraining the
freedom of a particular individual."*fn68 Chief Justice
Marshall, describing those Executive powers which are beyond
judicial control and citing the foreign affairs power as an
example, said: "The subjects are political: they respect the
nation, not individual rights, and being entrusted to the
executive, the decision of the executive is conclusive."*fn69
Marbury v. Madison, 1803, 1 Cranch 137, 166, 2 L. Ed. 60. A
characteristic of the political power which is to be exercised
free of judicial interference is its "lack of satisfactory
criteria for a judicial determination." Coleman v. Miller,
1939, 307 U.S. 433, 454-455, 59 S. Ct. 972, 982, 83 L. Ed.
1385.*fn70 By this test I think it clear that the power the
Secretary asserts here is not a political power.*fn71
[144] The Secretary finds authority to abridge the right to
travel in what Curtiss-Wright recognized as an inherent executive
power to deal with "a situation entirely external to the
United States, and falling within the category of foreign affairs
. . .." 299 U.S. at page 315, 57 S. Ct. at page 218.
Extending to internal affairs the President's inherent power over
external affairs has dangerous implications.*fn72 Those
implications have caused some authorities to shrink from the
inherent power doctrine as from something "revolutionary and
subversive of our constitutional system";73 or to anticipate
from it a carry-over to our national government of all the royal
prereogatives which ancient common law associated with the foreign
affairs powers of the King of England;74 or to fear that it
"would, at a stroke, equip the Federal Government with every
power possessed by any other sovereign State."75
[145] In our complex world there are very few purely internal
affairs. Foreign problems cast their shadows on the domestic scene
and internal events influence foreign policy. The Department of
State has declared that "There is no longer any real
distinction between 'domestic' and 'foreign' affairs."76 If
that is so, the inherent power doctrine could produce an extension
of the executive power beyond any limits heretofore conceived; and
the President, through his Secretary of State could preempt the
internal security functions of Congress.
[146] But the Supreme Court has confined the inherent foreign
affairs power within accountable limits.77 I am convinced from my
review of the authorities and my study of history that the power
here claimed by the Secretary is beyond those limits. Curtiss-Wright
declares that an extra-constitutional foregin relations power
passed to the President from the British Crown. To say that all
the powers of the Crown devolved upon the President would, of
course, be inconsistent with the basic principle that every branch
of the national government has only a limited power, and Curtiss-Wright
does not even suggest such a thing.78
[147] The British Crown had a prerogative to confine subjects
to the realm by writs ne exeat regno.79 But it was not one of the
prerogatives which devolved upon our President. It had its roots
in the Crown's earliest constitutional controversies with the
clergy80 and the barons.81 By the year 1382, restraints against
clerics and notables were relaxed, but a prohibition was placed
upon unlicensed departure from the realm by the common subjects of
the King. 5 Rich. II, c. 2, §§ 6, 7. In 1607 that prohibition
was repealed, 4 James I, c. 1, so that ostensibly freedom of
travel was restored, except to persons covered by special
statutes.82 It is undeniable, however, that the Crown continued to
exercise its prerogative to confine subjects to the realm, at
least until about one hundred years before our Revolution.83
[148] The manner in which British kings employed ne exeat was
in some ways strikingly similar to our State Department's present
policies and practices. The writ first used "to hinder the
clergy from going to Rome . . ., was afterward extended to laymen
machinating and concerting measures against the state . .
.."84 At one time the class confined to the realm included
"all archers and artificers, lest they should instruct
foreigners to rival us in their several trades and
manufactures.'85 Bacon says the writs were issuable "in
respect of attempts prejudicial to the King and State: (in which
case the Lord Chancellor will grant them upon prayer of any of the
principal Secretaries, without cause, or upon such information as
his Lordship shall think of weight) . . ..86
[149] The power to confine subjects to the realm, though it had
fallen into disuse,87 was still part of the king's prerogative
when we became an independent nation. The draftsmen of our
Constitution were familiar with it through Blackstone, "that
handbook of the American revolutionary."88
[150] Blackstone divided the prerogatives of the Crown into two
general categories: those relating to "intercourse with
foreign nations"; and those relating to "domestic
government and civil polity." 1 Commentaries (Wendell's ed.
1854) 252. It is the first branch of the royal prerogative to
which Curtiss-Wright refers and upon which the Secretary here
relies.
[151] "With regard to foreign concerns," says
Blackstone, "the king is the delegate or representative of
his people. . . . In the king, therefore, as in a center, all the
rays of his people are united . . .."89 Ibid. The king's
foreign affairs prerogative included the following components: (1)
"the sole power of sending embassadors to foreign states, and
receiving embassadors at home," id. at 252-56; (2) making
"treaties, leagues and alliances with foreign states and
princes," id. at 256; (3) "making war and peace,"
id. at 256-57; (4) issuing "letters of marque and
reprisal," id. at 257-59; and (5) granting "safe
conducts" or "passports" to aliens coming to the
realm, id. at 259-60.90
[152] The foreign affairs prerogative did not include the power
to confine subjects to the realm. This was part of the domestic
prerogative having to do with military affairs. Id. at 265.
Blackstone says, id. at 262:
[153] "The king is considered . . . as the generalissimo,
or the first in the military command, within the kingdom. The
great end of society is to protect the weakness of individuals by
the united strength of the community; and the principal use of
government is to direct that united strength in the best and most
effectual manner, to answer the end proposed. Monarchial
government is allowed to be the fittest of any for this purpose;
it follows, therefore, from the very end of its institution, that
in a monarchy the military power must be trusted in the hands of
the prince."
[154] And, "because that every man ought of right to
defend the king and his realm, therefore the king, at his
pleasure, may command him by his writ that he go not beyond the
seas, or out of the realm, without license . . .." Id. at
265.
[155] Since the king's ne exeat power was part of his domestic
military prerogative, rather than his foreign affairs prerogative,
Curtiss-Wright lends no support to a theory that the power
devolved upon our President.
[156] It is plain that out Constitution, with respect to things
military, conveyed to Congress most of the powers which were the
king's prerogative,91 leaving the President only the command
function. The President's military power, said Hamilton,
"would amount to nothing more than the supreme command and
direction of the military and naval forces, a first General and
admiral of the Confederacy; while that of the British king extends
to the declaring of war and to the raising and regulating of
fleets and armies; all of which, by the Constitution under
consideration, would appertain to the legislature." The
Federalist, No. 69 (Ford ed. 1898), p. 460.92 Since the American
citizen does not owe the President such a duty of defense as the
British subject owes his monarch, there is no basis for implying a
grant to the President of the ne exeat power which might be
necessary to enforce such a duty. We own our duties to the nation,
not to its chief executive.93
[157] The notion that the President possesses inherent military
power to deal with internal affairs involving private rights was
disposed of in Youngstown Sheet & Tube Co. v. Sawyer, 1952,
343 U.S. 579, 72 S. Ct. 863. The Court ruled that it could not
"with faithfulness to our constitutional system hold that the
Commander in Chief of the Armed Forces has the ultimate power as
such to take possession of private property in order to keep labor
disputes from stopping production." Id. 343 U.S. at page 587,
72 S. Ct. at page 867. Mr. Justice Douglas concurring, declared
that "our history and tradition rebel at the thought that the
grant of military power carries with it authority over civilian
affairs." Id. 343 U.S. at page 632, 72 S. Ct. at page 888,
Mr. Justice Jackson added: "That military powers of the
Commander in Chief were not to supersede representative government
of internal affairs seems obvious from the Constitution and from
elementary American history. . . . [The President's] command power
is not such an absolute as might be implied from that office in a
militaristic system but is subject to limitations consistent with
a constitutional Republic whose law and policy-making branch is a
representative Congress." Id. 343 at pages 644, 645-666, 72
S. Ct. at pages 874, 875-885.94
[158] At the time of Youngstown our Armed Forces were engaged
in active combat in Korea. The record before the Court contained a
number of affidavits by high Government officials, typical of
which was that of the Secretary of Defense, which stated:
[159] ". . . any curtailment in the production of steel
even for a short period of time will have serious effects on the
programs of the Department of Defense which are essential to
national security. A work stoppage in the steel industry will
result immediately in serious curtailment of production of
essential weapons and munitions of all kinds; if permitted to
continue it would weaken the defense effort in all critical areas
and would imperil the safety of our fighting men and that of the
nation."
[160] Chief Justice Vinson, dissenting, thought "the
uncontroverted affidavits in this record amply support the
[President's] finding that 'a work stoppage would immediately
jeopardize and imperil our national defense.'" Id. 343 U.S.
at page 679, 72 S. Ct. at page 935. He also cited our numerous
international undertakings - United Nations, Korea, Truman Plan,
Marshall Plan, North Atlantic Treaty Organization and Mutual
Security - all of which might be imperilled if the President's
seizure were not upheld. Id. 343 U.S. at pages 668-672, 72 S. Ct.
929-931. He found support for the seizure not only in the
President's military power and in his foreign relations power, id.
343 U.S. at pages 679, 681, 72 S. Ct. 934, 935, but also in the
fact that the emergency required emergency action. Id. 343 U.S. at
pages 668, 708-710, 72 S. Ct. 948-949. The Court, however,
repudiated these views. It held that the seizure of steel mills
involved in labor strife was within Congress' "exclusive
constitutional authority . . . in both good and bad times."
Id. 343 U.S. at pages 588-589, 72 S. Ct. 867.
[161] The military power has in the past been argued to be
broad enough to subject to court-martial civilians who obstruct
the successful prosecution of hostilities.95 But as Professor
Edmund M. Morgan pointed out: "Every act of treason would, by
this reasoning, be punishable by court-martial, and the third
section of article III of the constitution would have no field of
operation."96 When, during World War I, legislation was
offered to subject all spies to court-martial, on the theory that
the whole of the United States was a war zone, President Wilson
said: "I think that it is not only unconstitutional, but that
in character it would put us upon the level of the very people we
are fighting and and affecting to despise."97
IV. Conclusion
[162] My conclusions are that (1) the President has not
delegated to the Secretary of State the power to decide which
Americans may travel and which may not; (2) neither of the two
statutes relied on by the Secretary as a source of such power - 22
U.S.C.A. § 211a and 8 U.S.C.A. § 1185 - grants the power, in
terms, either to the President or to the Secretary; (3) a
construction of either or both of the statutes as granting the
power would conflict with other expressions of congressional
policy and would raise constitutional doubts of the utmost
gravity, especially to the extent that eligibility is made to
depend upon matters of political belief and association; (4) since
the power was not conferred by statute, the President does not
possess it, for it is not one of the powers inherent in his
office.
[163] The broad power to curtail the movements of citizens of
the United States, to the extent that our Government possesses it,
is vested in Congress, not in the President. Travel is being
controlled today for purposes of internal security. To call it a
matter of foreign relations is mere pretense. Whether our internal
security requires the drastic measure of restricting travel and,
if so, to what extent and by what criteria and procedures is for
Congress to decide. If and when Congress acts, there will
presumably be hearings, reports and debates which may serve to
limit what Congress elects to do and may help to interpret what it
does. The constitutionality of any such measure will, of course,
depend on its provisions and the circumstances in which it is
enacted.
[164] The question before us is whether the Secretary of State
has power to establish such substantive criteria for travel as are
here involved. We need not decide and I do not say that there are
no circumstances under which the Secretary may restrain a
citizen's travel. Whether he may deny a passport to prevent a
flight from justice98 or in aid of the enforcement of some
specific law, e.g., the Universal Military Training and Service
Act,99 are questions that may arise in other cases. In any event,
the exercise of such powers would be a far cry from the
Secretary's present undertaking.
[165] EDGERTON, Chief Judge (dissenting).
[166] We have temporized too long with the passport practices
of the State Department. Iron curtains have no place in a free
world. I think the Secretary should be directed to issue a
passport.
[167] "Undoubtedly the right of locomotion, the right to
remove from one place to another according to inclination, is an
attribute of personal liberty, and the right, ordinarily, of free
transit from or through the territory of any State is a right
secured by . . . the Constitution." Williams v. Fears, 179
U.S. 270, 274, 21 S. Ct. 128, 45 L. Ed. 186. We have held that the
right to leave the country is an attribute of personal liberty and
that restrictions on it "must conform with the provision of
the Fifth Amendment that 'No person shall be . . . deprived of . .
. liberty . . . without due process of law'." Shachtman v.
Dulles, 96 U.S.App.D.C. 287, 290, 225 F.2d 938, 941.
[168] But we need not and therefore should not1a decide any
constitutional question. As Judge Bazelon's opinion shows, the
President and Congress have not undertaken to delegate to the
Secretary the authority he claims. This is very clear when the
statutes and executive orders on which he relies are construed
narrowly. Delegations of authority must be construed narrowly when
a narrow construction avoids serious constitutional questions.
United States v. Rumely, 345 U.S. 41, 73 S. Ct. 543, 97 L. Ed.
770.
[169] The Secretary proposes to continue restricting the
personal liberty of a citizen because statements by informants
whom the Secretary does not identify have led him to think that if
the citizen goes abroad he will do something, the nature of which
the Secretary does not suggest, which the Secretary thinks, for
reasons known only to him, will be contrary to what, for reasons
known only to him, he conceives to be "the national
interest". If Congress or the President had undertaken to
authorize this, serious constitutional questions would arise. May
the government deprive a citizen of his constitutional liberty to
go abroad (1) without a jury trial, (2) without a definite
standard of guilt, (3) without sworn testimony, and (4) without an
opportunity to confront his accusers or know their identity? May
it deprive him of this liberty because of the way he has exercised
his First Amendment rights of free speech, press, and assembly?
Since neither Congress nor the President has undertaken to give
the Secretary the authority he claims, we need not consider these
constitutional questions.
[170] FAHY, Circuit Judge (dissenting).
[171] The discretion of the Secretary in issuing passports
prior to the enactment in 1941, of 66 Stat. 190, 8 U.S.C. §
1185(b) (1952), 8 U.S.C.A. § 1185(b), see Shachtman v. Dulles, 96
U.S.App.D.C. 287, 225 F.2d 938, was subject to no clear limitation
except that the applicant must qualify as one who owed allegiance
to the United States.1b A passport was in the nature of a
political document; one need not have it in order to obtain
passage and depart from the United States. So no deprivation of
liberty and no justiciable controversy were involved in denial of
a passport. But 8 U.S.C. § 1185(b), 8 U.S.C.A. § 1185(b),
changed all this. By that statute Congress provided that when the
United States is at war or during the existence of any national
emergency proclaimed by the President no citizen may lawfully
depart from the United States without a valid passport, with
exceptions not here pertinent.This was an assertion by Congress of
restraint upon travel based upon the war power, coupled with the
executive control over passports incident to the conduct of
foreign affairs noted in Shachtman. The new statute, however, did
not enumerate other specific criteria, notwithstanding a passport
thenceforth was not merely a political document the denial of
which entailed no deprivation of liberty. But I do not think the
absence from 8 U.S.C. § 1185(b), 8 U.S.C.A. § 1185(b), of more
specific criteria renders nugatory the control in question.2a The
statute explicitly limits the control to a time of war or of a
presidentially proclaimed national emergency, and to passports.
Control related to the war powers and to the conduct of foreign
affairs is thus plainly intended. In order to be validly exercised
the powers thus invoked, though subject to the Constitution, are
not held to the same degree of legislative or other specificity as
are those of government generally. Moreover, we do not have here,
as in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 72 S.
Ct. 863, an attempted exercise of executive authority alone; the
problem is more like that involved in Hirabayashi v. United
States, 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774, where there
was a combination of legislative and executive authority. Here
Congress seeks to control travel and to that end to enlarge the
significance of executive control over passports, in time of war
or national emergency. When the Act of Congress is considered with
the authority of the executive I think the courts would not be
justified in entirely nullifying all control other than that
incident to ascertainment by the issuing authority of whether or
not the applicant owes allegiance to the United States. I am
reassured in this view by the fact that the passport to be issued
need be only a simple pass or permit which enables the possessor
to depart lawfully from the United States, and no more; and,
furthermore, the control is always limited by the requirements of
the Due Process Clause. Shachtman v. Dulles, supra; Bauer v.
Acheson, D.C., 106 F.Supp. 445. Upon these considerations I would
interpret the control enacted by Congress as valid when exercised
consistently with due process to prevent the reasonable likelihood
of harm to our national defense or to the conduct of our foreign
affairs. This gives valid content to the Act of Congress, a result
to be preferred, when reasonably possible, to a holding that
Congress has entirely failed in its intended purpose. Cf. United
States v. Rumely, 345 U.S. 41, 73 S. Ct. 543, 97 L. Ed. 770, and
Ullman v. United States, 350 U.S. 442, 76 S. Ct. 497, 100 L. Ed.
511.
[172] We come then to the question whether, taking the above
approach, the denial of appellant's application is consistent with
due process and satisfies the criteria referred to. In reaching
this question I construe the factual situation as amounting to an
actual denial of appellant's application on the ground that he
refused to file a statement in accordance with section 51.142 of
the Passport Regulations, 22 C.F.R. 51.142 (Supp.1957). The denial
flows from the regulation and not from an independent conclusion
of the Secretary with respect either to appellant or to any
particular geographical area. The information sought by the
regulation is relevant to the criteria by which the Secretary must
be guided; for travel abroad at this time by persons who owe
allegiance to the United States but who are or have been members
of the Communist Party may reasonably be deemed to be related to
the national defense and to the conduct of foreign affairs. It
does not follow, however, that refusal by the applicant to furnish
this relevant information, without more, brings denial of his
application into conformity with due process. It must be borne in
mind that the denial deprives him of liberty to depart from the
United States, a right which he has unless lawfully deprived
thereof. In Garner v. Los Angeles Board, 341 U.S. 716, 71 S. Ct.
909, 95 L. Ed. 1317, the relevany information which the Court held
the applicant must supply was required by law, and was with
respect to retaining State employment. These two factual
differences are enough I think to distinguish that case from this
one. Not only has Congress not specified here that the information
refused must be furnished as a condition to obtaining a passport,
but the liberty to travel is on a different footing from a desire
to retain State employment. In the one case there is the taking
away of an existing liberty. yn the other there is State control
over the qualifications of its employees. And the degree of
restraint involved, as well as the nature of the liberty
restrained, are pertinent in determining the sufficiency of the
reason assigned for the restraint. Furthermore, the failure of
appellant to furnish the information may have been in good faith
reliance upon the First Amendment, cf. Konigsberg v. State Bar of
California, 353 U.S. 252, 77 S. Ct. 722, 1 L. Ed. 2d 810, or for
other good faith reasons, such as fear of prosecution for making a
false statement. Of course the reason may have been that to answer
truthfully would have disclosed Communist Party membership and
thereby automatically have caused the application to be denied
under section 51.135(a) of the Regulations. But we are not
required to assume this reason, or now to decide the validity of
denial of a passport based on such assumption. It is true, as
pointed out in Judge Washington's concurring opinion, that
Congress has declared that travel of Communist members facilitates
communication and is a prerequisite for carrying on of activities
to further the purposes of the Communist movement. The Secretary
cannot be required to assume that a real Communist Party Member
who is a citizen of or otherwise owes allegiance to the United
States, can be relied upon to adhere to his obligation of
citizenship when it conflicts with the responsibility he has
assumed by Party membership. For this reason a general uncertainty
as to the conduct of those involved in Communist membership or
discipline has a justifiable place in considering passports. But
such general uncertainty is not a substitute for a decision by the
issuing authority where, in any event, Party membership or
discipline is not shown. An applicant who refuses to file the
statement required by section 51.142 may have no derogatory
information to supply, or he may need to depart for personal or
other reasons unrelated to some possible Communist involvement.
Yet the Secretary, though satisfied to either effect, could not
permit the departure. Thus to create a general restriction on
travel by those who refuse the information, without more, is not
reasonable. It prohibits travel by an individual whose own reason
to depart does not come within the criteria upon the basis of
which the Secretary may validly refuse him permission to depart.
The intended travel might be wholly unrelated to any problem of
national defense or foreign affairs.To avoid this difficulty a
conclusion should be reached by the issuing authority in the
individual case, or with respect to the territorial area involved,
on the question whether the travel would be reasonably likely to
be detrimental to the national defense or to the conduct of our
foreign affairs. While the issuing authority may take into
consideration the refusal of the applicant to comply with section
51.142, due process is not afforded in peacetime by applying to an
individual case the general restriction referred to when there is
opportunity for a particular judgment. The exigencies of the
situation do not require a blanket rule which, for administrative
convenience or otherwise, obviates the necessity of a judgment
reached by the issuing authority in the individual case. We are
not at war. There is a presidentially proclaimed period of
national emergency, but we must not construe the authority to be
exercised as equal to that available in wartime. To bring the
regulation of travel within the requirements of substantive due
process, Shachtman v. Dulles (supra) calls I think for the
exercise by the issuing authority of its own decisional processes
to a greater degree than inheres in denial of a passport through
the self-executing effect of an applicant's refusal to supply the
information sought by section 51.142 of the Regulations.
[173] Being of the views thus expressed I would reverse and
remand, with direction that the case be returned by the District
Court to the Secretary for reconsideration consistently with these
views and with procedures required by our decision in Boudin v.
Dulles, 98 U.S. App.D.C. 305, 235 F.2d 532.
***** BEGIN FOOTNOTE(S) HERE *****
[174] *fn1 64 Stat. 987, 50 U.S.C.A. § 781(1).
[175] *fn2 Proc. No. 2914, 64 Stat. A454, 50 U.S.C.A.Appendix
note preceding section 1.
[176] *fn3 103 Cong.Rec. 729 (daily ed. Jan. 21, 1957).
[177] *fn4 103 Cong.Rec. 389 (daily ed. Jan. 10, 1957).
[178] *fn5 Id. at 390.
[179] *fn6 Galvan v. Press, 347 U.S. 522, 74 S. Ct. 737, 98 L.
Ed. 911 (1954).
[180] *fn7 Dennis v. United States, 341 U.S. 494, 71 S. Ct.
857, 95 L. Ed. 1137 (1951).
[181] *fn8 Supra note 6, 347 U.S. at page 529, 74 S. Ct. 737.
[182] *fn9 339 U.S. 382, 70 S. Ct. 674, 94 L. Ed. 925 (1950).
[183] *fn10 And see the opinion of Mr. Justice Jackson in
American Communications Ass'n v. Douds, id., 339 U.S. at page 424
et seq., 70 S. Ct. 674, with its accumulation of underlying data.
[184] *fn11 2 Pet. 253, 27 U.S. 253, 7 L. Ed. 415 (1829).
[185] *fn12 299 U.S. 304, 57 S. Ct. 216, 81 L. Ed. 255 (1936).
[186] *fn13 301 U.S. 324, 57 S. Ct. 758, 81 L. Ed. 1134 (1937).
Belmont is discussed at length and with approval in United States
v. Pink, 315 U.S. 203, 62 S. Ct. 552, 86 L. Ed. 796 (1942).
[187] *fn14 333 U.S. 103, 68 S. Ct. 431, 92 L. Ed. 568 (1948).
[188] *fn15 335 U.S. 160, 68 S. Ct. 1429, 92 L. Ed. 1881
(1948).
[189] *fn16 Supra, 333 U.S. at page 111, 68 S. Ct. 431.
Extensive discussions of the doctrines underlying the powers of
the President are in the opinions in Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952).
[190] *fn17 Proc. No. 2914, supra note 2.
[191] *fn18 Hirabayashi v. United States, 320 U.S. 81, 63 S.
Ct. 1375, 87 L. Ed. 1774 (1943).
[192] *fn19 44 Stat. 887 (1926), 22 U.S.C.A. § 211a; 66 Stat.
190 (1952), 8 U.S.C.A. § 1185.
[193] *fn20 Perkins v. Elg, 307 U.S. 325, 349, 59 S. Ct. 884,
83 L. Ed. 1320 (1939).
[194] *fn21 See Carrington, Political Questions: The Judicial
Check on the Executive, 42 Va.L.Rev. 175 (1956).
[195] *fn22 9 Pet. 692, 34 U.S. 692, 699, 9 L. Ed. 276.
[196] *fn23 See 3 Hackworth, Digest of International Law § 259
(1942).
[197] *fn24 15 Stat. 224 (1868), 8 U.S.C. § 903b [now 22
U.S.C.A. § 1732].
[198] *fn25 339 U.S. 763, 770, 70 S. Ct. 936, 94 L. Ed. 1255
(1950).
[199] *fn26 1 Bl.Comm. . . . 265; 3 Co.Inst. . . . 178; 1
Holdsworth, History of English Law 230 (6th ed. 1938);
Taswell-Langmead, English Constitutional Law 128-130 (4th ed.
1890).
[200] *fn27 2 Encyclopaedia Britannica, Anselm (1945); Beames,
Ne Exeat Regno 1-2 (2d ed. 1824).
[201] *fn28 See Note, Passports and Freedom of Travel: The
Conflict of a Right and a Privilege, 41 Geo.L.J. 63 (1952), for a
detailed account of the history of the Magna Carta and the status
of the common law in this regard.
[202] *fn29 3 Co.Inst. . . . 179.
[203] *fn30 Id. at . . . 178-179.
[204] *fn31 5 Richard II, c. 2, §§ 6, 7 (1381), 2 Stat. at L.
236 (Pick.1762).
[205] *fn32 See Note, 41 Gel.L.J., supra note 28, at 70;
Diplock, Passports and Protection in International Law, 32 Grotius
Soc. 42, 44 (1947).
[206] *fn33 Diplock, supra note 32, at 53.
[207] *fn34 Art. IV.
[208] *fn35 Art. IV, § 2. See Hess v. Pawloski, 274 U.S. 352,
47 S. Ct. 632, 71 L. Ed. 1091 (1927); Williams v. Fears, 179 U.S.
270, 21 S. Ct. 128, 45 L. Ed. 186 (1900).
[209] *fn36 Bauer v. Acheson, D.C.D.C., 106 F.Supp. 445.
[210] *fn37 Shachtman v. Dulles, 96 U.S.App.D.C. 287, 225 F.2d
938 (1955).
[211] *fn38 284 U.S. 421, 437-438, 52 S. Ct. 252, 76 L. Ed. 375
(1932).
[212] *fn39 3 Stat. 199 (1815).
[213] *fn40 Dep't of State, The American Passport - History and
Digest 50 (G.P.O.1898).
[214] *fn41 11 Stat. 60.
[215] *fn42 40 Stat. 559, 22 U.S.C.A. §§ 223-226b.
[216] *fn43 40 Stat. 1829 (1918).
[217] *fn44 44 Stat. 887 (1926), 22 U.S.C.A. § 211a.
[218] *fn45 Exec.Order No. 7856, 3 Fed.Reg. 681, 22 C.F.R. §§
51.1-51.77 (1949).
[219] *fn46 55 Stat. 252, 22 U.S.C.A. § 223.
[220] *fn47 Supra note 42.
[221] *fn48 Proc. No. 2487, 55 Stat. 1647, 50 U.S.C.A.Appendix,
note preceding section 1.
[222] *fn49 Proc. No. 2523, 55 Stat. 1696, U.S.Code
Cong.Service 1941, p. 883.
[223] *fn50 Proc. No. 2974, 66 Stat. C31, 50 U.S.C.A.Appendix
note preceding section 1.
[224] *fn51 Proc. No. 2914, supra note 2.
[225] *fn52 66 Stat. 190, 8 U.S.C.A. § 1185.
[226] *fn53 Proc. No. 3004, 67 Stat. C31, U.S.Code Cong. and
Adm.News 1953, p. 915.
[227] *fn54 Ibid.
[228] *fn55 22 C.F.R. § 53.1 (1949).
[229] *fn56 Supra note 44.
[230] *fn57 Supra note 45.
[231] *fn58 17 Fed.Reg. 8013 (1952), 22 C.F.R. §§
51.135-51.143 (Supp.1952).
[232] *fn59 Ibid.
[233] *fn60 22 C.F.R. § 51.142 (Supp.1955).
[234] *fn61 Id. § 51.135, reading in full text as follows:
[235] "Limitations on issuance of passports to persons
supporting Communist movement. In order to promote the national
interest by assuring that persons who support the world Communist
movement of which the Communist Party is an integral unit may not,
through use of United States passports, further the purposes of
that movement, no passport, except one limited for direct and
immediate return to the United States, shall be issued to:
[236] "(a) Persons who are members of the Communist Party
or who have recently terminated such membership under such
circumstances as to warrant the conclusion - not otherwise
rebutted by the evidence - that they continue to act in
furtherance of the interests and under the discipline of the
Communist Party;
[237] "(b) Persons, regardless of the formal state of
their affiliation with the Communist Party, who engage in
activities which support the Communist movement under such
circumstances as to warrant the conclusion - not otherwise
rebutted by the evidence - that they have engaged in such
activities as a result of direction, domination, or control
exercised over them by the Communist movement.
[238] "(c) Persons, regardless of the formal state of
their affiliation with the Communist Party, as to whom there is
reason to believe, on the balance of all the evidence, that they
are going abroad to engage in activities which will advance the
Communist movement for the purpose, knowingly and wilfully of
advancing that movement."
[239] *fn62 Ibid.
[240] *fn63 Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215,
97 L. Ed. 216 (1952).
[241] *fn64 E.g., Shachtman v. Dulles, supra note 37; Boudin v.
Dulles, infra; Robeson v. Dulles, 98 U.S.App.D.C. 313, 235 F.2d
810 (1956), certiorari denied 352 U.S. 895, 77 S. Ct. 131, 1 L.
Ed. 2d 86 (1956); Dulles v. Nathan, 96 U.S.App.D.C. 190, 225 F.2d
29 (1955).
[242] *fn65 See American Communications Ass'n v. Douds (supra).
[243] *fn66 Sec. 6, 64 Stat. 993, 50 U.S.C.A. § 785.
[244] *fn67 Sec. 15, 64 Stat. 1002, 50 U.S.C.A. § 794.
[245] *fn68 1957, 100 U.S.App.D.C. 116, 243 F.2d 222.
[246] *fn69 1955, 227 F.2d 708.
[247] *fn70 Moyer v. Peabody, 212 U.S. 78, 84, 29 S. Ct. 235,
53 L. Ed. 410 (1909); Federal Communications Comm. v. WJR, 337
U.S. 265, 275, 69 S. Ct. 1097, 93 L. Ed. 1353 (1949).
[248] *fn71 See United States v. Curtiss-Wright Corp. (supra)
299 U.S. at page 320, 57 S. Ct. at page 221.
[249] *fn72 Id., 299 U.S. at page 321, 57 S. Ct. at page 221.
[250] *fn73 98 U.S.App.D.C. 305, 235 F.2d 532 (1956).
[251] *fn74 Supra note 37.
IN AGREEMENT FOOTNOTES
[252] *fn1 When the Supreme Court in Garner determined that the
state agency may properly elicit from city employees information
"that may prove relevant to their fitness and suitability for
the public service," 341 U.S. at page 720, 71 S. Ct. at page
912, it apparently assumed the proposition that the state agency
had power to bar from employment those who are not fit or suitable
for the public service.
[253] *fn2 See Shachtman v. Dulles, 1955, 96 U.S.App.D.C. 287,
225 F.2d 938; Boudin v. Dulles, 1956, 98 U.S.App.D.C. 305, 235
F.2d 532; Dayton v. Dulles, 1956, 99 U.S.App.D.C. 47, 237 F.2d 43;
cf. Kraus v. Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840. The
highly restrictive position taken by Judge Bazelon in his learned
dissent is opposed to the spirit if not the letter of these
decisions. But it may be agreed that further congressional action
in the passport field would be very desirable.
[254] *fn3 See American Communications Ass'n v. Douds, 1950,
339 U.S. 382, 402, 70 S. Ct. 674; see also United States v. Rumely,
1953, 345 U.S. 41, 56, 73 S. Ct. 543, 97 L. Ed. 770.
[255] *fn4 22 U.S.C.A. § 213 requires every passport applicant
to furnish under oath an application containing "a true
recital of each and every matter of fact which may be required by
law or by any rules authorized by law." See also 22 C.F.R.
51.14. Section 51.142 of the regulations authorizes the affidavit,
and Section 51.74 specifies that the affidavit "shall be
considered as, and become, a part of the application."
[256] *fn5 The thrust of appellant's argument is that the
issuance of a passport is being unlawfully conditioned upon the
requirement of a "test oath." But as the Supreme Court
pointed out in Garner (supra) entirely different issues are raised
by a requirement that certain conduct or affiliation be denied
under oath, and by a requirement that information "with
respect to" a stated subject matter be given.
[257] *fn6 See Garner, supra 341 U.S. at page 720, 71 S. Ct. at
page 912: "The affidavit raises the issue whether the City of
Los Angeles is constitutionally forbidden to require that its
employees disclose their past or present membership in the
Communist Party . . .. Not before us is the question whether the
city may determine that an employee's disclosure of such political
affiliation justifies his discharge."
[258] MINORITY OPINIONFOOTNOTES
[259] *fn1 See 3 Hackworth, Digest of International Law § 268
(1942).
[260] *fn2 Shachtman v. Dulles, 1955, 96 U.S.App.D.C. 287,
289-290, 225 F.2d 938, 940-941.
[261] *fn3 Actually the first requirement of a passport for
travel was during World War I. Act of May 22, 1918, 40 Stat. 559,
22 U.S.C.A. §§ 223-226b, Proclamation No. 1473, Aug. 8, 1918, 40
Stat. 1829. These controls expired March 3, 1921. Pub.Res. No. 64,
41 Stat. 1359. By Act of June 21, 1941, 55 Stat. 252, 22 U.S.C.A.
§ 223, Congress amended the 1918 Act to apply during a proclaimed
emergency and, on November 14, 1941, the President issued
Proclamation No. 2523, 55 Stat. 1696, U.S.Code Cong.Service 1941,
p. 883, restoring travel controls which have remained in effect
since then. The 1941 statute was replaced by § 215 of the
Immigration and Nationality Act of 1952, 66 Stat. 190, 8 U.S.C.A.
1185, and on January 17, 1953, the revised statutory authority was
invoked by Proclamation No. 3004, 67 Stat. C31, U.S.Code Cong. and
Adm.News 1953, p. 915.
[262] In addition to being legally required as an exit permit,
a passport has become a practical necessity because foreign
countries have increasingly been requiring it as a condition to
entry. See Shachtman v. Dulles, 96 U.S.App.D.C. at page 290, 225
F.2d at page 941; Bauer v. Acheson, D.C., 1952, 106 F.Supp. 445,
451; Comment, 61 Yale L.J., infra note 28, at pages 171-172.
[263] *fn4 See, for example, Bauer v. Acheson, supra note 3;
Dulles v. Nathan, 1955, 96 U.S.App.D.C. 190, 225 F.2d 29;
Shachtman v. Dulles, supra note 2; Boudin v. Dulles, 1956, 98
U.S.App.D.C. 305, 235 F.2d 532; Robeson v. Dulles, 1956, 98
U.S.App.D.C. 313, 235 F.2d 810, certiorari denied, 1956, 352 U.S.
895, 77 S. Ct. 131, 1 L. Ed. 2d 86; Dayton v. Dulles, 1956, 99
U.S.App.D.C. 47, 237 F.2d 43.
[264] *fn5 17 Fed.Reg. 8013, Sept. 4, 1952, 22 C.F.R. §§
51.135-51.143 (1957 Supp.).
[265] *fn6 Section 6 of the Internal Security Act of 1950, 64
Stat. 993, 50 U.S.C.A. § 785, which makes it a crime for a
"member of [a Communist] organization" to apply for or
use a passport, is inoperative until such an organization has
registered or been finally ordered to do so. Neither of these
events has occurred. Communist Party v. Subversive Activities
Control Board, 1956, 351 U.S. 115, 76 S. Ct. 663, 100 L. Ed. 1003,
reversing, 1954, 96 U.S.App.D.C. 66, 223 F.2d 531.
[266] *fn7 The Act of May 30, 1866, 14 Stat. 54, disqualified
noncitizens. By Act of June 14, 1902, 32 Stat. 386, the law was
amended to disqualify persons not owing allegiance to the United
States, "whether citizens or not." The amendment was
designed to cover citizens of Puerto Rico, Hawaii, and the
Philippines. 35 Cong.Rec. 5697-99, 6588-89, 57th Cong., 1st Sess.
(1902). The statute is now codified as 22 U.S.C.A. § 212. For
convenience, the class of eligibles will be referred to herein as
"citizens."
[267] *fn8 22 C.F.R. p. 98 (1957 Supp.); 17 Fed.Reg. 8013.
[268] *fn9 See also the Secretary's brief in Boudin v. Dulles,
supra note 4, at p. 16.
[269] *fn10 Supra note 3.
[270] *fn11 3 Fed.Reg. 799, 22 C.F.R. §§ 51.1-51.77 (1949).
[271] *fn12 22 C.F.R. §§ 51.101-51.134 (1949); and see source
note at p. 103. "A study of the executive order and the
departmental order indicates that the chief element in the
discretion exercised by the Secretary of State concerned the type
of proof required to establish citizenship or allegiance."
Note, 41 Geo.L.J., infra note 28, at 76.
[272] *fn13 See Department of State, The American Passport, ch.
IV (1898); Exec.Order No. 654, June 13, 1907; Exec.Order No.
4359-A, Dec. 19, 1925; Exec.Order No. 4382-A, Feb. 12, 1926;
Exec.Order No. 4488, Aug. 3, 1926; Exec.Order No. 5860, June 22,
1932; Exec.Order No. 6650, March 23, 1934.
[273] *fn14 Supra note 3.
[274] *fn15 The regulations involved in this case, which were
also in existence when the proclamation was issued, were not
referred to directly or indirectly.
[275] *fn16 11 Stat. 60; reenacted in substantially the same
form by the Act of July 3, 1926, c. 772, § 1, 44 Stat. 887. The
language of the original act was "shall be authorized to
grant" rather than "may grant," but the effect is
the same.
[276] *fn17 Comment, 23 U.Chi.L.Rev., infra note 28, at 272 n.
25; Doman, A Comparative Analysis: Do Citizens Have the Right to
Travel, 43 A.B.A.J. 307, 308 (1957).
[277] *fn18 The original 1856 Act, 11 Stat. 60, combined the
present § 211a with the present § 212 which disqualifies
non-citizens.
[278] *fn19 Supra note 13.
[279] *fn20 Supra note 3.
[280] *fn21 This act, though no longer included in the United
States Code, has not been repealed and is still in effect.
Savorgnan v. United States, 1950, 338 U.S. 491, 498-499, 70 S. Ct.
292.
[281] *fn22 See also op. cit. supra note 1, p. 163.
[282] *fn23 8 U.S.C.A. §§ 1481 and 1483; Savorgnan v. United
States, 338 U.S. at page 503, 70 S. Ct. at page 298.
[283] *fn24 Supra note 6.
[284] *fn25 Ibid.
[285] *fn26 In the last session of Congress, legislation was
introduced by Representative Walter, which would have amended the
Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. to
provide for a passport review procedure and would have denied
passports to persons under Communist discipline in much the
fashion now employed by the State Department. The bill died in
committee. H.R. 9991, 102 Cong.Rec. 4266, 84th Cong., 2d Sess.,
March 15, 1956.
[286] *fn27 See Note, 41 Geo.L.J., infra note 28, at page 89.
[287] *fn28 Comment, The Passport Puzzle, 23 U.Chi.L.Rev. 260
(1956); Note, Passports and Freedom of Travel: The Conflict of a
Right and a Privilege, 41 Geo.L.J. 63, 88 (1952); Note,
"Passport Denied": State Department Practice and Due
Process, 3 Stan.L.Rev. 312 (1951); Parker, The Right to Go Abroad:
To Have and to Hold a Passport, 40 Va.L.Rev. 853, 870 (1954);
Passport Refusals for Political Reasons: Constitutional Issues and
Judicial Review, 61 Yale L.J. 171 (1952).
[288] *fn29 96 U.S.App.D.C. at page 290, 225 F.2d at page 941.
See also Williams v. Fears, 1900, 179 U.S. 270, 274, 21 S. Ct.
128, 130, 45 L. Ed. 186, referring to "freedom or egress from
the state."
[289] *fn30 Dayton v. Dulles, supra note 4; Boudin v. Dulles,
supra note 4; Bauer v. Acheson, supra note 3; see also Dulles v.
Nathan, supra note 4, remanding Nathan v. Dulles, D.C.1955, 129
F.Supp. 951, for vacation of judgment and dismissal of complaint
on ground of mootness.
[290] *fn31 Shachtman v. Dulles, supra note 2; see Kraus v.
Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840.
[291] *fn32 In saying in the Communist Party case "that
the Government may validly decline" a passport to a
Communist, this court was referring to the passport in its aspect
as a documentary assurance of "the protection and good
offices of American diplomatic and consular officers abroad,"
1954, 96 U.S.App.D.C. 66, 90, 223 F.2d 531, 555, and not as an
exit permit indispensable to travel. As for the latter aspect of a
passport, i.e., whether a restriction upon liberty to travel is
constitutional, the court said, ". . . we need not, and do
not, enter upon consideration of that question . . .." 96
U.S.App.D.C. at page 91, 223 F.2d at page 556. Later in Shachtman,
the court did consider that question and concluded, as we have
already seen, that there is a constitutionally protected right,
supra note 29; but how much protection springs from the First
Amendment has not been determined.
[292] *fn33 Mr. Justice Cardozo dissenting in Panama Refining
Co. v. Ryan, 1935, 293 U.S. 388, 440, 55 S. Ct. 241, 256, 79 L.
Ed. 446. The Secretary argues that standardless delegation is not
invalid in a field where the Executive possesses inherent power,
citing United States v. Curtiss-Wright Export Corp., 1936, 299
U.S. 304, 57 S. Ct. 216, 81 L. Ed. 255.As I shall show, however,
the delegation problem cannot thus be avoided, for the authority
here claimed is not encompassed within the President's inherent
power in the field of foreign relations.
[293] *fn34 The majority finds "nothing new or novel about
requiring an applicant for a permit or a license to supply
pertinent information under oath." [248 F.2d 574] But the
analogy sought to be established founders upon the hard fact that
the passport applicant does not seek a permit or a license - he
seeks to implement a constitutionally protected right. The
requirement of the affidavit is also sought to be defended by
analogy to ordinary pleading rules. But this analogy also
collapses. Pleadings may be in the alternative; they may be
inconsistent or hypothetical; they are not under oath. A defendant
is not required to submit to a test oath as a qualification of his
right to receive justice.
[294] *fn35 347 U.S. at page 530, 74 S. Ct. at page 742.
[295] *fn36 See discussion at note 90 infra and related text.
[296] *fn37 Thomas v. Collins, 1945, 323 U.S. 516, 532, 65 S.
Ct. 315, 323, 89 L. Ed. 430.
[297] *fn38 Dennis v. United States, 1951, 341 U.S. 494, 510,
71 S. Ct. 857, 95 L. Ed. 1137, adopting the statement of Chief
Judge Hand below, United States v. Dennis, 2 Cir., 1950, 183 F.2d
201, 212.
[298] *fn39 See also the concurring opinion of Mr. Justice
Jackson.
[299] *fn40 That some unions have remained powerful and
effective without the privileges of the Labor Relations Act is
common knowledge.
[300] *fn41 One of the individuals who has sought in vain for
many years to go abroad was recently reported to have sent a
"cordial message of greetings" to the Soviet Union which
was published in the Communist Party newspaper Pravda, and
broadcast by the Moscow radio. N.Y. Times, Jan. 2, 1957, p. 16,
col. 6."Spies and traitors do not usually travel abroad.
Rather, they remain inconspicuously at home, as recent unfortunate
cases have amply demonstrated." Parker, op. cit. supra note
28 at 873.
[301] *fn42 Wyzanski, Freedom to Travel, The Atlantic Monthly,
Oct. 1952, 66, 68.
[302] *fn43 Ibid.
[303] *fn44 See also Communist Party v. Subversive Activities
Control Board, supra note 32.
[304] *fn45 "Limitations on issuance of passports to
certain other persons. In order to promote and safeguard the
interests of the United States, passport facilities, except for
direct and immediate return to the United States, will be refused
to a person when it appears to the satisfaction of the Secretary
of State that the person's activities abroad would: (a) violate
the laws of the United States; (b) be prejudicial to the orderly
conduct of foreign relations; or (c) otherwise be prejudicial to
the interests of the United States." 22 C.F.R. § 51.136
(Supp.1957).
[305] *fn46 18 U.S.C. §§ 371, 791-97, 2151-56, 2381-90.
[306] *fn47 50 U.S.C.A. § 783.
[307] *fn48 Id., § 843.
[308] *fn49 18 U.S.C. § 951.
[309] *fn50 Id., § 953.
[310] *fn51 Id., § 1073.
[311] *fn52 It has been observed that, since the common law
attributes to personal liberty, according to Blackstone, "the
power of locomotion, of changing situation, or moving one's person
to whatsoever place one's own inclinations may direct,"
"the distinction between restriction to a jail, to a city, to
a state, or to a nation is merely one of degree." Comment, 61
Yale L.J. supra note 28, at 190; see also Doman, op. cit. supra
note 17 at 310.
[312] Constitutional safeguards are "especially necessary
where the occasion of detention is fear of future misconduct,
rather than crimes committed." Mr. Justice Jackson,
dissenting in Shaughnessy v. U.S. ex rel. Mezei, 1953, 345 U.S.
206, 225, 73 S. Ct. 625, 97 L. Ed. 956. In other legal systems, as
Mr. Justice Jackson points out, other considerations may govern.
He cites the testimony of Hermann Goring at the Nuremburg trials:
[313] ". . . those who had committed some act of treason
against the new state, or those who might be proved to have
committed such an act, were naturally turned over to the courts.
The others, however, of whom one might expect such acts, but who
had not yet committed them, were taken into protective custody,
and these were the people who were taken to concentration camps..
. . Likewise, if for political reasons . . . someone was taken
into protective custody, that is, purely for reasons of state,
this could not be reviewed or stopped by any court." Id. 345
U.S. at pages 225-226, n. 8, 73 S. Ct. at page 636.
[314] *fn53 The Emergency Detention Act of 1950 (Title II of
the Internal Security Act), to deal with "fifth column"
problems, authorizes the President, in time of invasion, declared
state of war or insurrection in aid of a foreign enemy, to
proclaim an "Internal Security Emergency" and to
apprehend and detain persons as to whom there is reasonable ground
to believe that they "probably will engage in, or probably
will conspire with others to engage in, acts of espionage or of
sabotage." 50 U.S.C.A. §§ 812, 813, 64 Stat. 1021 (1950).
The original bill, S. 4130, 81st Cong., 2d Sess. (1950), had
contained provisions authorizing detention during such "cold
war" emergencies as an "imminent invasion" or a
congressionally declared emergency, but these provisions were
eliminated because of doubtful constitutionality. Note, The
Internal Security Act of 1950, 51 Col.L.Rev. 606, 651 (1951).
[315] *fn54 96 U.S.App.D.C. at page 289, 225 F.2d at page 940.
[316] *fn55 96 U.S.App.D.C. at page 290, 225 F.2d at page 941.
[317] *fn56 Mr. Justice Clark concurring in Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. at page 661 n. 3, 72 S. Ct. at
page 883. See the authorities collected in Z & F Assets
Realization Corp. v. Hull, 1940, 72 App.D.C. 234, 114 F.2d 464.
[318] *fn57 48 Stat. 811 (1934).
[319] *fn58 United States v. Palmer, 1818, 3 Wheat. 610,
633-634, 4 L. Ed. 471; Jones v. United States, 1890, 137 U.S. 202,
11 S. Ct. 80, 34 L. Ed. 691; Oetjen v. Central Leather Co., 1918,
246 U.S. 297, 38 S. Ct. 309, 62 L. Ed. 726; United States v.
Belmont, 1937, 301 U.S. 324, 330, 57 S. Ct. 758, 81 L. Ed. 1134;
United States v. Pink, 1942, 315 U.S. 203, 229, 62 S. Ct. 552, 86
L. Ed. 796; Latvian State Cargo & Passenger S.S. Co. v.
McGrath, 88 U.S.App.D.C. 226, 188 F.2d 1000, certiorari denied,
1951, 342 U.S. 816, 72 S. Ct. 30, 96 L. Ed. 617.
[320] *fn59 Ware v. Hylton, 1796, 3 Dall. 199, 260, 1 L. Ed.
568; Doe ex dem. Clark v. Braden. 1853, 16 How. 635, 657, 14 L.
Ed. 1090; Terlinden v. Ames, 1902, 184 U.S. 270, 22 S. Ct. 484, 46
L. Ed. 534; Ivancevic vic v. Artukovic, 9 Cir., 1954, 211 F.2d
565, 573.
[321] *fn60 Foster v. Neilson, 1829, 2 Pet. 253, 307-309, 7 L.
Ed. 415; Williams v. Suffolk Ins. Co., 1839, 13 Pet. 415, 10 L.
Ed. 226; In re Cooper, 1892, 143 U.S. 472, 12 S. Ct. 453, 36 L.
Ed. 232; The Kodiak, D.C.Alaska 1892, 53 F. 126.
[322] *fn61 Wilson v. Shaw, 1907, 204 U.S. 24, 27 S. Ct. 233,
51 L. Ed. 351; Mr. Justice Frankfurter, dissenting in United
States v. California, 1947, 332 U.S. 19, 45, 67 S. Ct. 1658, 91 L.
Ed. 1889.
[323] *fn62 United States ex rel. Knauff v. Shaughnessy, 1950,
338 U.S. 537, 542, 70 S. Ct. 309, 94 L. Ed. 317.
[324] *fn63 Carlson v. Landon, 1952, 342 U.S. 524, 534, 72 S.
Ct. 525, 96 L. Ed. 547; Harisiades v. Shaughnessy, 1952, 342 U.S.
580, 587-590, 72 S. Ct. 512, 96 L. Ed. 586.
[325] *fn64 United States v. Von Clemm, 2 Cir., 1943, 136 F.2d
968, 970.
[326] *fn65 Mr. Justice Douglas, concurring in Koki Hirota v.
McArthur, 1949, 338 U.S. 197, 208, 69 S. Ct. 1238, 93 L. Ed. 1902.
[327] *fn66 Chicago & Southern Air Lines v. Waterman
Steamship Corp., 1948, 333 U.S. 103, 68 S. Ct. 431, 92 L. Ed. 568.
[328] *fn67 Z & F Assets Realization Corp. v. Hull, 1940,
72 App.D.C. 234, 114 F.2d 464, 466, affirmed, 1941, 311 U.S. 740,
61 S. Ct. 351, 85 L. Ed. 288.
[329] *fn68 Comment, 61 Yale L.J. at 187. The Chicago &
Southern Air Lines case, supra note 66, is not an exception. The
Court there held that the President's selection of one applicant
over another for an international air route was not to be
interfered with, because "both as Commander-in-Chief and as
the Nation's organ for foreign affairs, [he] has available
intelligence services whose reports are not and ought not to be
published to the world." 333 U.S. at page 111, 68 S. Ct. at
page 436. "The Court evidently was assuming that any secret
information the President may have relied upon was in the nature
of legislative facts and not adjudicative facts - that the
information pertained to international relations and not to
qualifications of the particular applicants. . . . Thus an
applicant for a license is entitled to a trial type of hearing on
issues of fact concerning his qualifications but not necessarily
on issues of fact concerning need for the service or conditions in
the territory to be served." Davis, The Requirement of a
Trial-Type Hearing, 70 Harv.L.Rev. 193 at pages 264, 275 (1956).
[330] *fn69 That the executive power with respect to passports
is not of this conclusive character was settled in Perkins v. Elg,
1939, 307 U.S. 325, 349-350, 59 S. Ct. 884, 83 L. Ed. 1320.
[331] *fn70 See also the Chicago & Southern Air Lines case,
supra note 66, 333 U.S. at page 111, 68 S. Ct. 431.
[332] *fn71 "The validity of restrictions on the freedom
of movement of particular individuals, both substantively and
procedurally, is precisely the sort of matter that is the peculiar
domain of the courts." Comment, 61 Yale L.J. at page 187. The
Secretary's position that "the issuance and denial of
passports is within the field of conducting foreign policy"
has been described by one commentator as "[a] strange, and to
this writer's knowledge, unique position among the countries with
democratic and constitutional background." Doman, op. cit.
supra note 17, at page 309.
[333] *fn72 Madison wrote to Jefferson in 1798:
[334] "The management of foreign relations appears to be
the most susceptible of abuse of all the trusts committed to a
Government, because they can be concealed or disclosed, or
disclosed in such parts and at such times as will best suit
particular views; and because the body of the people are less
capable of judging and are more under the influence of prejudices,
on that branch of their affairs, than of any other. Perhaps it is
a universal truth that the loss of liberty at home is to be
charged to provisions against danger, real or pretended, from
abroad." Padover, The Complete Madison (1953) 257-58.
[335] Mr. Justice Jackson, concurring in Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. at page 642, 72 S. Ct. at page 873,
declared:
[336] ". . . no doctrine that the Court could promulgate
would seem to me more sinister and alarming than that a President
whose conduct of foreign affairs is so largely uncontrolled, and
often even is unknown, can vastly enlarge his mastery over the
internal affairs of the country by his own commitment of the
Nation's armed forces to some foreign venture."
[337] *fn73 Patterson, In re the United States v. The Curtiss-Wright
Corporation, 22 Texas L.Rev. 286 (1944).
[338] *fn74 Goebel, Constitutional History and Constitutional
Law, 38 Col.L.Rev. 555, 571-72 (1938). In token that his fears are
not fanciful, Professor Goebel cites Den. ex dem. Murray v.
Hoboken Land & Improvement Co., 1855, 18 How. 272, 276-277, 15
L. Ed. 372, where Mr. Justice Curtis, in upholding the right of
the Solicitor of the Treasury Department to proceed by distraint,
without judicial process, against the property of a defalcating
customs collector, reasoned that the taking was not without due
process of law because at common law the Exchequer could use the
writ of extendi facias to seize the "goods of the King's
debtor . . . without requiring any previous inquisition . .
.."
[339] *fn75 1 Willoughby, The Constitution of the United States
92 (2d ed. 1929); see also Leviton, The Foreign Relations Power:
An Analysis of Mr. Justice Sutherland's Theory, 55 Yale L.J. 467,
493 (1946). See the concurring opinion of Mr. Justice Jackson in
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at page 641,
72 S. Ct. at page 873, replying to the Government's argument that
the vesting of "The Executive Power" in the President is
a grant of all possible executive power: "The example of such
unlimited executive power that must have most impressed the
forefathers was the prerogative exercised by George III, and the
description of its evils in the Declaration of Independence leads
me to doubt that they were creating their new Executive in his
image." One of the evils denounced in the Declaration may
have been the King's attempt to prevent emigration to the
colonies. Note, 41 Geo.L.J., supra note 28, at 70. Even in the
earliest colonial period, Charles I, in the exercise of the royal
prerogative to confine the subject to the realm, issued a
proclamation against taking passage to America, because some who
were going were "'idle and refractory persons' who wished to
live out of reach of authority." 10 Holdsworth, History of
English Law 390 (1938).
[340] *fn76 Our Foreign Policy, Department of State Publication
3972, General Foreign Policy Series 26, Sept. 1950, p. 4.
[341] *fn77 Supra notes 58-67. In Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. at page 587, 72 S. Ct. at page 867, the
Court said, dealing with the analogous question of the extent of
the President's military power: "Even though 'theater of war'
be an expanding concept, we cannot with faithfulness to our
constitutional system hold that the Commander in Chief of the
Armed Forces has the ultimate power as such to take possession of
private property in order to keep labor disputes from stopping
production. This is a job for the Nation's lawmakers, not for its
military authorities." See also text at notes 95-97 (infra).
[342] *fn78 A specific royal prerogative, in its devolution
upon our national government, may be divided between the executive
and legislative branches. See, e.g., 1863, 10 Ops. Att'y Gen. 452.
[343] *fn79 See Note, 41 Geo.L.J. at 64-70.
[344] *fn80 From the struggles of Henry II with Thomas a Becket
emerged, in 1164, the fourth article of the Constitutions of
Clarendon prohibiting ecclesiastics from leaving the realm without
the king's permission.
[345] *fn81 John's struggle with the barons culminated, in
1215, in Magna Carta which provided in c. 42:
[346] "It shall be lawful in future for anyone (excepting
always those imprisoned or outlawed in accordance with the law of
the kingdom, and natives of any country at war with us, and
merchants, who shall be treated as [otherwise] provided) to leave
our kingdom and to return, safe and secure by land and water,
except for a short period in time of war, on grounds of public
policy - reserving always the allegiance due to us."
[347] This provision did not survive John. It was omitted from
the confirmation of the Charter in 1217 and the definitive
proclamation by Henry III in 1225 which is the Charter's present
statutory form. Supra note 79 at 67-68; Goebel, op. cit. supra
note 74, at 573-74 n. 51.
[348] *fn82 Largely affecting children sought to be sent abroad
for Catholic education. Supra note 79, at 69.
[349] *fn83 Goebel, op. cit. supra note 74, at 573-74 n. 51; 10
Holdsworth, op. cit. supra note 75, at 391-92.
[350] *fn84 1 Blackstone, Commentaries (Wendell's ed. 1854) 266
n. 22.
[351] *fn85 Id. at 265-66.
[352] *fn86 Ordinances, No. 89, quoted in Beames, Ne Exeat
Regno (1st Amer. ed., 1821) 17. In form, the writ commanded the
subject "that he go not beyond the seas or out of the realm
without a license" upon the stated ground that "we are
given to understand that you design to go privately into foreign
parts and intend to prosecute there many things prejudicial to us
. . .." Provision was made whereby the subject could apply to
Chancery for a license. Parker, op. cit. supra note 28, at 867.
[353] *fn87 The writ ne exeat has continued to be employed only
as a private equitable remedy to prevent flight of creditors.
Supra note 85; Parker, op. cit. supra note 28 at 867-68. In its
aspect as a private equitable remedy, it was imported into our
law. 1 Stat. 334 (1793); Judicial Code § 261, 36 Stat. 1162
(1911), 28 U.S.C. § 376 (1940); now covered by Rule 64,
Fed.R.Civ.P., 28 U.S.C., see Notes of Advisory Committee. The
royal prerogative still exists in England, but whether it may be
exercised in time of peace is doubtful. Note, 41 Geo.L.J. at 70.
[354] *fn88 Rutland, The Birth of the Bill of Rights 11 (1955).
"Blackstone's Commentaries are accepted as the most
satisfactory exposition of the common law of England. At the time
of the Federal Constitution it had been published about twenty
years, and it has been said that more copies of the work had been
sold in this country than in England, so that undoubtedly the
framers of the Constitution were familiar with it." Schick v.
United States, 1904, 195 U.S. 65, 69, 24 S. Ct. 826, 827, 49 L.
Ed. 99. Professor Crosskey refers to the Commentaries as
"that great 'best-seller' of the eighteenth century" and
points out that some of the members of the Constitutional
Convention were on the subscription list of the original American
edition in 1772. Politics and the Constitution, Vol. 1, p. 411,
and Vol. 2, p. 1326, n. 3 (1953).
[355] *fn89 Cf. John Marshall, in an address to the House of
Representatives in 1800: "The President is the sole organ of
the nation in its external relations, and its sole representative
with foreign nations." 10 Annals of Congress, 6th Cong., 1st
Sess., col. 613 (1800).
[356] *fn90 The "passports" referred to in this part
of the prerogative are merely "safe conducts" which were
issued to visiting strangers "under the king's
sign-manual," rather than by one of "his embassadors
abroad." Id at 259. This part of the foreign affairs
prerogative has been carried over to our Government. See United
States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 542, 70
S. Ct. 309, 312, 94 L. Ed. 317: "The exclusion of aliens is a
fundamental act of sovereignty . . . [which] stems not alone from
legislative power but is inherent in the executive power to
control the foreign affairs of the nation." See also Carlson
v. Landon, 1952, 342 U.S. 524, 534, 72 S. Ct. 525, 96 L. Ed. 547;
Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 587-589, 72 S. Ct.
512, 96 L. Ed. 586; and Galvan v. Press, 1954, 347 U.S. 522, 530,
74 S. Ct. 737, 98 L. Ed. 911. The majority's reliance upon Galvan
to support a power to control the movements of citizens is thus
misplaced. See text at note 36 supra.
[357] So far as the rest of the royal prerogative over foreign
affairs is concerned, the power to make war and to issue letters
of marque and reprisal were confined by our Constitution to the
legislative branch, and the sending of ambassadors to and making
of treaties with other nations were given to the President, but
with a role preserved for the Senate.
[358] *fn91 E.g., "to raise and support Armies,"
"to provide and maintain a Navy," "to make Rules
for the Government and Regulation of the land and naval
Forces," the various militia powers, and the authority to
legislate with respect to places "for the Erection of Forts,
Magazines, Arsenals, Dock-Yards and other needful Building."
Constitution, Art. I, § 8.
[359] *fn92 Professor Crosskey points out that St. George
Tucker, a Jeffersonian, in his 1803 edition of Blackstone, noted
that "the student [could] not fail to have remarked how many
of the most important prerogatives of the British Crown [had been]
transferred from the executive authority, in the United States, to
the supreme national council in Congress." Op. cit. supra
note 88 at 415. Crosskey concludes as to the military prerogative:
"So, in this whole field in which the powers of the King were
so very great - the field of authority from which, if from any,
the Convention may have feared a future American monarchy might
conceivably arise - the 'supremacy' of Congress was most carefully
and amply provided: apart from the bare 'command' in actual action
and administration, all the foregoing authorities of the English
King, as 'generalissimo,' were specifically transferred to
Congress or subjected, in the plainest terms, to Senatorial or
Congressional control." Id. at 427.
[360] *fn93 A cognate of the writ ne exeat is the writ
available to the king to recall a subject to the realm from
abroad. Supra note 84 at 266. To the extent that this prerogative
power passed to our Government, it is lodged not in the President
but in Congress. See Blackmer v. United States, 1932, 284 U.S.
421, 437-438, 52 S. Ct. 252, 76 L. Ed. 375.
[361] *fn94 The executive absolutism implicit in the royal
prerogative has its counterpart in modern systems of government
which, though formally representative, differ from ours in basic
philosophy. Thus, under the Venezuelan theory of "cesarismo
democratico," the president is "democracy personified,
the nation made man" and his "influence and power . . .
extend to all levels of government. . . ." Lott, Executive
Power in Venezuela, 50 The American Political Science Review 422,
425, 440 (1956).
[362] *fn95 Winthrop, Military Law and Precedents (2d ed. 1920)
103.
[363] *fn96 Morgan, Court Martial Jurisdiction Over
Non-Military Persons Under the Articles of War, 4 Minn.L.Rev. 79,
106 (1920).
[364] *fn97 Rankin, When the Civil Law Fails (1939) 138-39.
[365] *fn98 Cf. 18 U.S.C. § 1073.
[366] *fn99 Act of June 24, 1948, 62 Stat. 604, 50
U.S.C.A.Appendix, § 451 et seq.
[367] 1a Peters v. Hobby, 349 U.S. 331, 338, 75 S. Ct. 790, 99
L. Ed. 1129.
[368] 1b 32 Stat. 386 (1902), 22 U.S.C. § 212 (1952), 22
U.S.C.A.§ 212, which amended 14 Stat. 54 (1866). Under the
earlier law only citizens were eligible for passports.
[369] 2a It seems manifest that control was attempted. No
longer was there to be merely the ascertainment of the obligation
or not of allegiance. Before 8 U.S.C. § 1185(b), 8 U.S.C.A. §
1185(b), was enacted this qualification was the sole essential.
The enactment, therefore, was a definite authorization by Congress
of control of the travel of some who had that qualification.