Zemel v. Rusk/Dissent Black

by Hugo Black

United States Supreme Court

381 U.S. 1

Zemel  v.  Rusk

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

Mr. Justice BLACK, dissenting.

Article I of the Constitution provides that 'All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' (Emphasis supplied.) I have no doubt that this provision grants Congress ample power to enact legislation regulating the issuance and use of passports for travel abroad, unless the particular legislation is forbidden by some specific constitutional prohibition such as, for example, the First Amendment. See Aptheker v. Secretary of State, 378 U.S. 500, 517, 84 S.Ct. 1659, 1670, 12 L.Ed.2d 992 (concurring opinion); cf. Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204. Since Article I, however, vests 'All legislative Powers' in the Congress, and no language in the Constitution purports to vest any such power in the President, it necessarily follows, if the Constitution is to control, that the President is completely devoid of power to make laws regulating passports or anything else. And he has no more power to make laws by labeling them regulations than to do so by calling them laws. I cannot accept the Government's argument that the President has 'inherent' power to make regulations governing the issuance and use of passports. Post, pp. 28-30. We emphatically and I think properly rejected a similar argument advanced to support a seizure of the Nation's steel companies by the President. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153. And regulation of passports, just like regulation of steel companies, is a law-making-not an executive, law-enforcing-function.

Nor can I accept the Government's contention that the passport regulations here involved are valid 'because the Passport Act of 1926 in unequivocal words delegates to the President and Secretary a general discretionary power over passports * * *.' That Act does provide that 'the Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries * * * under such rules as the President shall designate and prescribe * * *.' ^[1] Quite obviously, the Government does not exaggerate in saying that this Act 'does not provide any specific standards for the Secretary' and 'delegates to the President and Secretary a general discretionary power over passports'-a power so broad, in fact, as to be marked by no bounds except an unlimited discretion. It is plain therefore that Congress has not itself passed a law regulating passports; it has merely referred the matter to the Secretary of State and the President in words that say in effect, 'We delegate to you our constitutional power to make such laws regulating passports as you see fit.' The Secretary of State has proceeded to exercise the power to make laws regulating the issuance of passports by declaring that he will issue them for Cuba only to 'persons whose travel may be regarded as being in the best interests of the United States,' as he views those interests. For Congress to attempt to delegate such an undefined law-making power to the Secretary, the President, or both, makes applicable to this 1926 Act what Mr. Justice Cardozo said about the National Industrial Recovery Act: ^[2] 'This is delegation running riot. No such plenitude of power is susceptible of transfer.' A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 553, 55 S.Ct. 837, 853, 79 L.Ed. 1570 (concurring opinion). See also Panama Ref. Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446; cf. Kent v. Dulles, 357 U.S. 116, 129, 78 S.Ct. 1113, 1120, 2 L.Ed.2d 1204.

Our Constitution has ordained that laws restricting the liberty of our people can be enacted by the Congress and by the Congress only. I do not think our Constitution intended that this vital legislative function could be farmed out in large blocks to any governmental official, whoever he might be, or to any governmental department or bureau, whatever administrative expertise it might be thought to have. The Congress was created on the assumption that enactment of this free country's laws could be safely entrusted to the representatives of the people in Congress, and to no other official or government agency. The people who are called on to obey laws have a constitutional right to have them passed only in this constitutional way. This right becomes all the more essential when as here the person called on to obey may be punishable by five years' imprisonment and a $5,000 fine if he dares to travel without the consent of the Secretary or one of his subordinates. ^[3] It is irksome enough for one who wishes to travel to be told by the Congress, the constitutional lawmaker with power to legislate in this field, that he cannot go where he wishes. It is bound to be far more irritating-and I do not think the authors of our Constitution, who gave 'All' legislative power to Congress, intended-for a citizen of this country to be told that he cannot get a passport because Congress has given an unlimited discretion to an executive official (or viewed practically, to his subordinates) to decide when and where he may go. I repeat my belief that Congress has ample power to regulate foreign travel. And of course, the fact that there may be good and adequate reasons for Congress to pass such a law is no argument whatever for holding valid a law written not by the Congress but by executive officials. See Panama Ref. Co. v. Ryan, supra, 293 U.S., at 420, 55 S.Ct. at 248. I think the 1926 Act gives the lawmaking power of Congress to the Secretary and the President and that it therefore violates the constitutional command that 'All' legislative power be vested in the Congress. I would therefore reverse the judgment.

Notes

1. 44 Stat. 887, 22 U.S.C. § 211a (1958 ed.).
2. Act of June 16, 1933, 48 Stat. 195.
3. 66 Stat. 190, 8 U.S.C. § 1185 (1964 ed.).