Zemel v. Rusk/Dissent Goldberg

by Arthur Goldberg

United States Supreme Court

381 U.S. 1

Zemel  v.  Rusk

 Argued: March 1, 1965. --- Decided: May 3, 1965

Mr. Justice GOLDBERG, dissenting.

Last year approximately 2,750,000 Americans traveled abroad. More than 1,100,000 passports were issued or renewed, nearly 4,000 of which were obtained by journalists. ^[1] This phenomenal amount of travel not only demonstrates our curiosity about things foreign, and the increasing importance of, and in the often necessity for, travel, but it also reflects the long history of freedom of movement which Americans have enjoyed. Since the founding of the Republic our Government has encouraged such travel. ^[2] For example, in 1820, when John Quincy Adams issued a passport to one Luther Bradish he certified that Bradish was about to visit foreign countries 'with the view of gratifying a commendable curiosity.' ^[3] In 1962, however, when appellant requested that his passport be validated so that he might travel to Cuba 'to satisfy my curiosity about the state of affairs in Cuba and to make me a better informed citizen,' his request was denied upon the basis of Department of State regulations, issued under the alleged authority of an Executive Order, restricting travel to Cuba.

Appellant attacks the limitation imposed upon the validity of his passport as beyond the inherent power of the Executive, unauthorized by Congress, and beyond the constitutional authority of either the Executive or Congress. I agree with the Court that Congress has the constitutional power to impose area restrictions on travel, consistent with constitutional guarantees, and I reject appellant's arguments to the contrary. With all deference, however, I do not agree with the Court's holding that Congress has exercised this power. Moreover, I do not believe that the Executive has inherent authority to impose area restrictions in time of peace. I would hold, under the principles established by prior decisions of this Court that inasmuch as Congress has not authorized the Secretary to impose area restrictions, appellant was entitled to a passport valid for travel to Cuba.

This Court has recognized that the right to travel abroad is 'an important aspect of the citizen's 'liberty" guaranteed by the Due Process Clause of the Fifth Amendment. Kent v. Dulles, 357 U.S. 116, 127, 78 S.Ct. 1113, 1119, 2 L.Ed.2d 1204. In Aptheker v. Secretary of State, 378 U.S. 500, 517, 84 S.Ct. 1659, 1669, 12 L.Ed.2d 992 we reaffirmed that 'freedom of travel is a constitutional liberty closely related to rights of free speech and association.' As nations have become politically and commercially more dependent upon one another and foreign policy decisions have come to have greater impact upon the lives of our citizens, the right to travel has become correspondingly more important. Through travel, by private citizens as well as by journalists and governmental officials, information necessary to the making of informed decisions can be obtained. And, under our constitutional system, ultimate responsibility for the making of informed decisions rests in the hands of the people. As Professor Chafee has pointed out, 'An American who has crossed the ocean is not obliged to form his opinions about our foreign policy merely from what he is told by officials of our government or by a few correspondents of American newspapers. Moreover, his views on domestic questions are enriched by seeing how foreigners are trying to solve similar problems. In many different ways direct contact with other countries contributes to sounder decisions at home.' Chafee, Three Human Rights in the Constitution of 1787, 195-196 (1956).

The constitutional basis of the right to travel and its importance to decision-making in our democratic society led this Court in Kent v. Dulles, supra, to conclude that '(i)f that 'liberty' is to be regulated, it must be pursuant to the law-making functions of the Congress.' 357 U.S., at 129, 78 S.Ct. at 1120. Implicit in this statement, and at the very core of the holding in Kent v. Dulles, is a rejection of the argument there advanced and also made here by the Government that the Executive possesses an inherent power to prohibit or impede travel by restricting the issuance of passports. The Court in Kent expressly recognized that a passport is not only of great value, but also is necessary ^[4] to leave this country and to travel to most parts of the world. Kent v. Dulles, supra, 357 U.S., at 121, 78 S.Ct., at 1115. The Court demonstrates in Kent v. Dulles, and I shall show in detail below, that there is no long-standing and consistent history of the exercise of an alleged inherent Executive power to limit travel or restrict the validity of passports. In view of the constitutional basis of the right to travel, the legal and practical necessity for passports, and the absence of a longstanding Executive practice of imposing area restrictions, I would rule here, as this Court did in Kent v. Dulles, that passport restrictions may be imposed only when Congress makes provision Dulles, supra, at 130, 78 S.Ct., at 1120, therefor 'in explicit terms,' Kent v. Dulles, supra, at 130, 78 S.Ct., at 1120. consistent with constitutional guarantees. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153. I would hold expressly that the Executive has no inherent authority to impose area restrictions in time of peace.

II. STATUTORY AUTHORITY.

I cannot accept the Court's view that authority to impose area restrictions was granted to the Executive by Congress in the Passport Act of 1926, 44 Stat. 887, 22 U.S.C. § 211a (1958 ed.), which provides, 'The Secretary of State may grant and issue passports * * * under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports.' I do not believe that the legislative history of this provision, or administrative practice prior to its most recent re-enactment in 1926 will support the Court's interpretation of the statute. Moreover, the nature of the problem presented by area restrictions makes it unlikely that authority to impose such restrictions was granted by Congress in the course of enacting such a broad general statute. In my view, as the history I shall relate establishes, this statute was designed solely to centralize authority to issue passports in the hands of the Secretary of State in order to overcome the abuses and chaos caused by the fact that prior to the passage of the statute numerous unauthorized persons issued passports and travel documents.

The 1926 provision has its origin in the Act of August 18, 1856, 11 Stat. 52, 60-61. Prior to 1856 the issuance of passports was not regulated by law. Governors of States, local mayors, and even notaries public issued documents which served as passports. This produced confusion abroad. In 1835 Secretary of State Forsyth wrote:

'It is within the knowledge of the Department that the diplomatic agents of foreign governments in the United States have declined authenticating acts of governors or other State or local authorities; and foreign officers abroad usually require that passports granted by such authorities shall be authenticated by the ministers or consuls of the United States. Those functionaries, being thus called upon, find themselves embarrassed between their desire to accommodate their fellow-citizens and their unwillingness to certify what they do not officially know; and the necessity of some uniform practice, which may remove the difficulties on all sides, has been strongly urged upon the Department.' III Moore, International Law Digest 862-863 (1906).

Despite administrative efforts to curb the flow of state and local passports, Secretary of State Marcy wrote in 1854:

'To preserve proper respect for our passports it will be necessary to guard against frauds as far as possible in procuring them. I regret to say that local magistrates or persons pretending to have authority to issue passports have imposed upon persons who go abroad with these spurious papers. Others, again, who know that they are not entitled to passports-not being citizens of the United States-seek to get these fraudulent passports, thinking that they will protect them while abroad.' III Moore, op. cit. supra, at 863.

As is noted in an official history of the State Department, 'The lack of legal provision on the subject (of passports) led to gross abuses, and 'the impositions practiced upon the illiterate and unwary by the fabrication of worthless passports' (IX Op.Atty.Gen. 350) led finally to the passage of the Act of August 18, 1856.' The Department of State of the United States: Its History and Functions 178 (1893). This Act provided that 'the Secretary of State shall be authorized to grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by such diplomatic or consular officers of the United States, and under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify any such passport.' 11 Stat. 60. That Act made it a crime for a person to issue a passport who was not authorized to do so. This provision was re-enacted on July 3, 1926, 44 Stat. 887, in substantially identical form. ^[5] There is no indication in the legislative history either at the time the Act was originally passed in 1856 or when it was re-enacted, that it was meant to serve any purpose other than that of centralizing the authority to issue passports in the hands of the Secretary of State so as to eliminate abuses in their issuance. Thus, in my view, the authority to make rules, granted by the statute to the Executive, extends only to the promulgation of rules designed to carry out this statutory purpose.

The administrative practice of the State Department prior to 1926 does not support the Court's view that when Congress re-enacted the 1856 provision in 1926 it intended to grant the Executive authority to impose area restrictions. Prior to the First World War the State Department had never limited the validity of passports for travel to any particular area. In fact, limitations upon travel had been imposed only twice. During the War of 1812 Congress specifically provided by statute that persons could not cross enemy lines without a passport, and in 1861 at the beginning of the Civil War the Secretary of State ruled that passports would not be issued to persons whose loyalty was in doubt. These restrictions were imposed in time of war. The first, restricting the area of travel, evidently was thought to require a specific statutory enactment by Congress, and the second did not limit the area of travel, but, rather, limited the persons to whom passports would be issued. ^[6] Until 50 years ago peacetime limitations upon the right of a citizen to travel were virtually unknown, see Chafee, op. cit. supra, at 193; Jaffe, The Right to Travel: The Passport Problem, 35 Foreign Affairs 17, and it was in this atmosphere that the Act of 1856 was passed and its re-enactment prior to 1926 took place.

The only area restrictions imposed between 1856 and 1926 arose out of the First World War. Although Americans were not required by law to carry passports in 1915, certain foreign countries insisted that Americans have them. American Consulates and Embassies abroad were therefore authorized to issue emergency passports after the outbreak of the war, and in 1915 the Secretary of State telegraphed American Ambassadors and Ministers in France, Germany, Great Britain, Italy, the Netherlands, and Denmark: 'Do not issue emergency passports for use in Belgium (then occupied by German armed forces) unless applicants obliged to go thither by special exigency or authorized by Red Cross or Belgian Relief Commission.' See III Hackworth, Digest of International Law 525-526 (1942). After the United States entered World War I travel to areas of belligerency and to enemy countries was restricted. Passports were marked not valid for travel to these areas, and Congress provided by statute that passports were necessary in order to leave or enter the United States. The congressional Act requiring passports for travel expired in 1921, and soon after the official end of the war passports were marked valid for travel to all countries. See III Hackworth, supra, at 527; Hearings before the Senate Committee on Foreign Relations on Department of State Passport Policies, 85th Cong., 1st Sess., 64 (hereafter Senate Hearings). Thus in 1926 freedom of travel was as complete as prior to World War I. In this atmosphere Congress re-enacted, in virtually identical terms, the 1856 statute, the sole purpose of which, as I have already noted, was to centralize passport issuance. Congress in doing so did not indicate the slightest intent or desire to enlarge the authority of the Executive to regulate the issuance of passports. Surely travel restrictions imposed while the United States was at war and a single telegram instructing ministers to deny emergency passports for a brief time in 1915 for travel to a theatre of war, do not show that Congress, by re-enacting the 1856 Act in 1926, intended to authorize the Executive to impos area restrictions upon travel in peacetime whenever the Executive believed such restrictions might advance American foreign policy. The long tradition of freedom of movement, the fact that no passport area restrictions existed prior to World War I, the complete absence of any indication in the legislative history that Congress intended to delegate such sweeping authority to the Executive all point in precisely the opposite direction. ^[7]

In Kent v. Dulles, supra, the Court held that the 1926 Act did not authorize the Secretary of State to withhold passports from persons because of their political beliefs or associations. Although it was argued that prior to 1926 the Secretary had withheld passports from Communists and other suspected subversives and that such an administrative practice had been adopted by Congress, the Court found that the evidence of such a practice was insufficient to warrant the conclusion that it had congressional authorization.

Yet in Kent v. Dulles the Government pointed to scattered Executive interpretations showing that upon occasion the State Department believed that it had the authority in peacetime to withhold passports from persons deemed by the Department to hold subversive beliefs. In 1901 Attorney General Knox advised the Secretary of State that a passport might be withheld from 'an avowed anarchist.' 23 Op.Atty.Gen. 509, 511. Orders promulgated by the Passport Office periodically have required denial of passports to 'revolutionary radicals.' See Passport Office Instructions of May 4, 1921. A State Department memorandum of May 29, 1956, in summarizing the Department's passport policy, states that after the Russian Revolution 'passports were refused to American Communists who desired to go abroad for indoctrination, instruction, etc. This policy was continued until 1931 * * *.' ^[8]

These isolated instances of the assumption of authority to refuse passports to persons thought subversive were held insufficient to show that Congress in 1926 intended to grant the Secretary of State discretionary authority to deny passports to persons because of their political beliefs, Kent v. Dulles, supra, at 128, 78 S.Ct., at 1119. This case presents an even more attenuated showing of administrative practice, for there is revealed only one isolated instance of a peacetime area restriction and this closely connected with World War I. Clearly this single instance is insufficient to show that Congress intended to authorize the Secretary to impose peacetime area restrictions.

Moreover, just as the more numerous instances of restriction on travel because of political beliefs and associations in wartime were insufficient to show that Congress intended to grant the Secretary authority to curtail such travel in time of peace, see Kent v. Dulles, supra, at 128, 78 S.Ct., at 1119, so here the fact that area restrictions were imposed during World War I does not show that Congress intended to grant the Secretary authority to impose such restrictions in time of peace. In time of war and in the exercise of the war power, restrictions may be imposed that are neither permissible nor tolerable in time of peace. See Kent v. Dulles, supra, at 128, 78 S.Ct., at 1119; cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153. But see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644. Thus even if the State Department's wartime practic should lead to the conclusion that area restrictions in time of war were sanctioned, it surely does not show that Congress wished to authorize similar curtailment of the right to travel in time of peace. ^[9]

While the Court intimates that Kent v. Dulles is distinguishable from the present case because in Kent v. Dulles passports were denied on the basis of the applicants' political beliefs, ante, at 13, I find little in the logic of that opinion to support such a distinction. The Court in Kent v. Dulles based its conclusions that the Executive does not have an inherent herent power to impose peacetime passport restrictions and that Congress did not delegate such authority to the Executive on the history of passport restrictions and the constitutional basis of the right to travel. While the Court there mentions that it is dealing 'with beliefs, with associations, with ideological matters,' 357 U.S., at 130, 78 S.Ct., at 1120, a reading of the opinion clearly reveals that its holding does not turn upon such factors. Moreover, the importance of travel to the gathering of information, an activity closely connected with the First Amendment and a right asserted here, seems to be a major reason for the Court's holding in Aptheker and Kent that the right to travel is afforded constitutional protection. Kent v. Dulles thus seems not only relevant, but controlling, in the case presented here.

The Statute's Inapplicability To The Problem of Area Restrictions.

The Court's interpretation of the 1926 Passport Act not only overlooks the legislative history of the Act and departs from the letter and spirit of this Court's decisions in Kent v. Dulles, supra, and Aptheker v. Secretary of State, supra, but it also implies that Congress resolved, through a sweeping grant of authority, the many substantial problems involved in curtailing a citizen's right to travel because of considerations of national policy. People travel abroad for numerous reasons of varying importance. Some travel for pleasure, others for business, still others for education. Foreign correspondents and lecturers must equip themselves with firsthand information. Scientists and scholars gain considerably from interchanges with colleagues in other nations. See Chafee, op. cit. supra, at 195.

Just as there are different reasons for people wanting to travel, so there are different reasons advanced by the Government for its need to impose area restrictions. These reasons vary. The Government says restrictions are imposed sometimes because of political differences with countries, sometimes because of unsettled conditions, and sometimes, as in this case, as part of program, undertaken together with other nations, to isolate a hostile foreign country such as Cuba because of its attempts to promote the subversion of democratic nations. See Senate Hearings 63-69. The Department of State also has imposed different types of travel restrictions in different circumstances. All newsmen, for example, were prohibited from traveling to China, see Senate Hearings 67, but they have been allowed to visit Cuba. See Public Notice 179 (Jan. 16, 1961), 26 Fed.Reg. 492; Press Release No. 24, issued by the Secretary of State, Jan. 16, 1961. In view of the different types of need for travel restrictions, the various reasons for traveling abroad, the importance and constitutional underpinnings of the right to travel and the right of a citizen and a free press to gather information about foreign countries, it cannot be presumed that Congress, without focusing upon the complex problems involved, resolved them by adopting a broad and sweeping statute which, in the Court's view, confers unlimited discretion upon the Executive, and which makes no distinctions reconciling the rights of the citizen to travel with the Government's legitimate needs. I do not know how Congress would deal with this complex area were it to focus on the problems involved, or whether, for example, in light of our commitment to freedom of the press, Congress would consent under any circumstances to prohibiting newsmen from traveling to foreign countries. But, faced with a complete absence of legislative consideration of these complex issues, I would not presume that Congress, in 1926, issued a blanket authorization to the Executive to impose area restrictions and define their scope and duration, for the nature of the problem seems plainly to call for a more discriminately fashioned statute.

III. CONCLUSION.

In my view it is clear that Congress did not mean the 1926 Act to authorize the Executive to impose area restrictions in time of peace, and, with all deference, I disagree with the Court's holding that it did. I agree with the Court that Congress may authorize the imposition of travel restrictions consistent with constitutional guarantees, but I find it plain and evident that Congress has never considered and resolved the problem. After consideration Congress might determine that broad general authority should be delegated to the Secretary of State, or it might frame a narrower statute. I believe that here, as in other areas, appropriate delegation is constitutionally permissible where some standard for the application of delegated power is provided. See, e.g., Lichter v. United States, 334 U.S. 742, 785, 68 S.Ct. 1294, 1316, 92 L.Ed. 1694. However, in light of my conclusion that the 1926 Act did not deal with area restrictions I do not find it necessary to consider the question of whether the language of the 1926 Act might constitute an unconstitutionally broad delegation of power.

In view of the different types of need for area restrictions asserted by the Government, the various reasons for travel abroad, the importance and constitutional underpinnings of the right of citizens and a free press to gather information about foreign countries-considerations which Congress did not focus upon-I would not infer, as the Court does, that Congress resolved the complex problem of area restrictions, which necessarily involves reconciling the rights of the citizen to travel with the Government's legitimate needs, by the re-enactment of a statute that history shows was designed to centralize authority to issue passports in the Secretary of State so as to prevent abuses arising from their issuance by unauthorized persons. Since I conclude that the Executive does not possess inherent power to impose area restrictions in peacetime, and that Congress has not considered the issue or granted such authority to the Executive, I would reverse the judgment of the District Court.

Notes

1. U.S. Dept. of State, Summary of Passport Statistics Jan. 1965.
2. Very recently the President has requested citizens voluntarily and temporarily to limit their travel abroad because of balance of payments difficulties.
3. See U.S. Dept. of State, The American Passport 10 (1898).
4. Except for the years 1918 to 1921 and since 1941 American law did not require a passport for travel abroad. Currently, however, § 215(b) of the Immigration and Nationality Act of 1952, 66 Stat. 190, 8 U.S.C. § 1185(b) (1958 ed.), makes it unlawful, after the proclamation of a national emergency to 'to depart from or enter, or attempt to depart from or enter, the United States * * * (without) a valid passport.' The Court expresses no views nor do I upon the validity or proper interpretation of this provision, which is currently involved in other litigation not now before us.
5. The following changes have been made in the wording of this provision of the statute between 1856 and the present: When the statute was placed in the Revised Statutes of 1874, the words 'shall be authorized to' were replaced by 'may.' R.S. § 4075. On June 14, 1902, the provision was amended to increase the list of those whom the Secretary could cause to grant, issue and verify passports in foreign countries by adding the words 'and by such chief or other executive officer of the insular possessions of the United States.' 32 Stat. 386. When the provision was re-enacted in 1926, the list of those whom the Secretary could cause to grant, issue and verify passports in foreign countries was modified by substituting for the words 'by such diplomatic or consular officers of the United States,' the words 'by diplomatic representatives of the United States, and by such consul generals, consuls, or vice consuls when in charge, as the Secretary of State may designate,' and the words 'such passports' were substituted for the words 'any such passport.' 44 Stat. 887.
6. See Kent v. Dulles, supra, 357 U.S. at 128, 78 S.Ct., at 1119, where the Court implies that regulation of travel based upon disloyalty to the country during wartime presents quite a different question from such regulation in time of peace.
7. The Court also argues that State Department imposition of area restrictions after 1926 shows that the Act granted power to impose such restrictions, for a consistent administrative interpretation must be given weight by the courts. Ante, at 11. See Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796. With all deference, I do not find a consistent administrative interpretation of the 1926 Act. While area restrictions have been imposed by the Executive from time to time since 1926, see Senate Hearings 64-65, the Executive has also indicated doubts as to its authority to restrict passports. In 1958 the President formally asked Congress for 'clear statutory authority to prevent Americans from using passports for travel to areas where there is no means of protecting them or where their presence would conflict with our foreign policy objectives.' H.R.Doc. No. 417, 85th Cong., 2d Sess. In 1957 the Report of the Commission on Government Security expressly recommended that it be made unlawful 'for any citizen of the United States to travel to any country in which his passport is declared to be invalid.' S.Doc. No. 64, 85th Cong., 1st Sess., 475. Moreover, when the Department of State announced limitations on the use of passports for travel to Red China, the accompanying press release stated that the restrictions did not forbid American travel to the areas restricted. See Senate Hearings 40; Report of the Association of the Bar of the City of New York, Freedom to Travel 70 (1958). In any event I believe that the evidence set out above that Congress did not mean the 1926 Act to authorize the imposition of area restrictions is sufficiently strong so that it is not overcome by the fact that after 1926 the Department on occasion asserted that it had an inherent power to impose such restrictions.
8. See the Report of the Commission on Government Security 470, 471 (1957).
9. Although the United States has severed its diplomatic ties with the Castro government, and, as the Court correctly points out, ante, at 14-15, justifiably regards the Castro regime as hostile to this country, the United States is not in a state of war with Cuba. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410, 84 S.Ct. 923, 931, 11 L.Ed.2d 804.