*1 AGEE STATE OF HAIG, SECRETARY 29, 1981 June January 14, 1981 Decided Argued 80-83. No. *3 Stewart, Court, which the opinion of the J., delivered Burger, C. joined. JJ., Stevens, Rehnquist, Powell, Blacnmun, White, J., filed p. Brennan, post, opinion, concurring J., filed a BlacKmun, post, p. 310. J., joined, Marshall, which opinion, dissenting petitioner. for cause the argued McCree General Solicitor General Attorney Assistant were briefs him With Levander, Getter, J. Andrew General Solicitor Daniel, Deputy Lake. T. Herts, William F. Schaitman, Michael Leonard a brief filed the cause argued L. Melvin Wulf respondent. Court. opinion Burgee delivered Justice
Chief acting President, whether is presented question revoke authority State, Secretary of through activities holder’s ground on damage serious cause likely to or are causing are countries States. United foreign policy security or I A Philip Agee, an American citizen, currently resides in West Germany.1 From 1957 to 1968, he was employed by the Central Intelligence Agency. He held key positions in the division of the Agency that responsible for covert intel- ligence gathering in foreign countries. In the course of his duties at the Agency, Agee received training in clandestine operations, including the methods to protect used the iden- tities of intelligence employees and sources of the United States overseas. He served in undercover assignments abroad and came to know many Government employees and other persons supplying information to the United States. The relationships of many of these people to our Government are highly confidential; many are still engaged in intelligence gathering.
In 1974, Agee called a press conference in London to an- nounce his “campaign to fight the United States CIA wher- ever it is operating.” He declared his intent “to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating.” 1 Agee has deported been from Great Britain, France, and the Nether Dirty lands. Work: The CIA in Europe Western (P. 286-300 Agee & *4 L. Wolf eds. 1978).
2 The 1974 London statement was as follows: “Today, I announced a new campaign fight to the United States CIA wherever it is operating. This campaign will have two main functions: First, expose to CIA officers agents and and to take the necessary measures to drive them out of the countries they where are operating; secondly, to seek within the United States to have the CIA abolished. “The effort identify people CIA in countries has been going on for some time. . . . (Today’s) list was compiled by group a small Mexican comrades whom I trained to follow comings goings and CIA people before I left Mexico City.
“Similar lists of CIA people in other countries already are being com- consist- devoted assertion, by his own Agee has, Since extensively traveled has and he program, to that ent effort identify CIA To it carry out. order in countries in other target to the Agee goes country, particular in personnel circles whom diplomatic in local sources consults country and Govern- States in the United service prior his from he knows in clan- them trains collaborators He recruits ment. of CIA “cover” expose designed techniques destine have his collaborators Agee and and sources. employees organiza- individuals identified publicly repeatedly agents, CIA as undercover foreign countries in located tions identi- reveals The record or sources.3 employees, express Agee’s information,4 violate classified divulge fications Agency about any statements public to make not contract prej- have Agency,5 by prior clearance without matters participation invite appropriate. We announced when piled will be justice and who for social campaign from all those strive in this App. 107a. dignity.” to Pet. for Cert. (CADC), App. in No. 80-1125 Exposing CIA, Agee, also P.
See App.). (hereinafter pp. 76-79 CA books two and in between 1974 and of incidents series persons as hundreds of Agee identified period, published the same 108a-111a; generally see Cert. App. to Pet. for personnel. See CIA Dirty The CIA Diary (1975); Work: Company: CIA Agee, Inside the P. App. 66-79. eds.-1978), CA (P. Agee Europe & L. Wolf 17-43 in Western Africa Dirty 2: The CIA in Introduction, Work Agee, See also P. 1979). The latter eds. L. Meter, & Wolf (E. Ray, Schapp, K. Van W. alleged listing the names sections Where” books contain “Who’s two sections country-by-country basis and “Who’s Who” employees aon CIA persons. such biographical information all containing detailed Pet. for App. to Operations, for Deputy of CIA Director Affidavits See 114a; 112a, see also n. Cert. infra. Agee contracted Agency, employment a- condition As undertake my employment CIA I consideration that “[i]n or material any information publication of participate publish or to generally, activities intelligence Agency, its activities relating to the *5 udiced the ability of the United States to obtain intelligence,6 and have been by episodes followed against violence persons organizations and identified.7 either during or after the my term of employment by Agency without specific prior approval by Agency.” CA App. 65. This language is identical to the clause which we Snepp construed in States, United 507, U. S. In separate lawsuit wherein the Government sought to Agee’s enforce agreement, the District Court held “Agee that has shown flagrant dis- regard requirements for the of the Secrecy Agreement.” The court noted: “There dispute is no Agee that openly has flouted his refusal to submit writings speeches prior the CIA for approval, and expressed has a clear intention to reveal classified information bring harm to the agency personnel.” and its Agee v. Centred Intelligence Agency, 500 Supp. F. (DC 1980) (footnote omitted). 6Affidavit of CIA Deputy Director for Operations, App. to Pet. for Cert. 112a. 7In December 1975, Richard Welch was murdered in Greece after publication of an article in an English-language newspaper in Athens naming Welch as CIA Chief of Station. App. CA July 1980, two days after a Jamaica press conference at Agee’s which principal collabo rator identified Richard Kinsman as CIA Chief of Station in Jamaica, Kinsman’s house was strafed with gunfire. automatic days Four after the press same conference, approached three men the Jamacia home of another man similarly identified Agency as an officer. Police challenged the men gunfire exchanged. was Affidavit of United States Ambassador Jamaica, App. to Pet. for Cert. 125a-127a. In January 1981, two Ameri can officials of the American Institute for Free Labor pre Development, viously identified as a CIA Agee front extensively discussed Agee’s book Inside Company: CIA Diary, were assassinated in El Salvador. Times, N. Y. 15, 1981, p. Jan. A10, A-5; id., cols. Jan. p. Al, p.6, col. A10, cols. 3-6. The Secretary does not assert Agee that has specifically any incited one to commit However, murder. affidavits of the Deputy CIA’s Director Operations set out and support judgment Agee’s purported identifications “thinly-veiled are invitations to violence,” “Agee’s actions could, in today’s circumstances, result in someone’s death,” and Agee’s conduct “markedly increased the likelihood of individuals so being identified the victims of App. violence.” to Pet. for Cert. 111a, 116a-118a. One those affidavits also shows that the ultimate Agee’s effectiveness program depends on activities of hostile *6 286 Agee’s revoked Secretary of State 1979, the
In December in West Agee to notice explanatory an delivered passport part: in Germany. The notice states upon deter- predicated action Department’s “The provisions Secretary under the by made the mination your activities 51.70(b)(4) that Section CPR] [22 damage likely to cause serious or are causing are abroad of the United foreign policy security or the national to the Secretary’s determination for the reasons States. The has early 1970’s it Since the follows: are, summary, in as continuous cam- conduct a to your stated intention been of the United operations disrupt intelligence the paign to you travelled campaign have carrying out that States. Mexico, among others, (including, in countries various Jamaica, Cuba, Kingdom, Denmark, the United have those your in countries Germany), and activities for- to damage caused serious intention Your stated States. policy of United eign damage additional threatens to continue such activities kind.” same engage physical sur- expected groups can be groups, and that such cases, of United and, in extreme murder veillance, harassment, kidnaping, 116a-117a, Id., officials States abroad. Appeals sug the Court Id., Both the District Court and at 120a. have gested impetus revocation that for immediate the crisis special significance light Agee’s took on been that activities Embassy November in Iran on following the of the American seizure Agee Muskie, Agee (DC 1980); Vance, Supp. v. 483 F. captors more held App. 46, 47, 2d D. C. 629 F. many diplomats and citizens, some than States of whom were 50 United affidavits captors alleged agents. to be Government of whom the CIA urged to demand captors, them Agee made contact show analyze documents, the docu and offered travel to Iran certain CIA 1979, p. 6, 117a; Times, App. for Cert. N. Y. Dec. ments. to Pet. not mentions, but does vouch A affidavit also col. 5. Government report Agee to travel to accuracy of, earlier had been invited an judg “Revolutionary pass participate in a Tribunal” to order Iran in hostages. App. to Pet. for Cert. 116a-117a. ment on those The notice also Agee advised of his right to an administrative hearing9 and offered to hold such a hearing Germany West days’ notice.
Agee at once filed against suit the Secretary.10 He al- leged that the regulation invoked the Secretary, 22 CFR § (b)(4) 51.70 (1980), been authorized and is invalid; regulation is impermissibly over- broad; that the revocation prior to a hearing violated his Fifth *7 Amendment right procedural due process; and that the revocation violated a Fifth Amendment liberty in a. interest right to travel and a First right Amendment to criticize Gov- policies. ernment He sought declaratory injunctive re- lief, and he moved for summary judgment on the question of the authority to promulgate regulation the and on the consti- tutional claims. For purposes of that motion, Agee conceded the Secretary’s factual averments11 and his Agee’s claim that activities were causing or likely were to cause serious dam- age to the security national or foreign policy of the United States.12 The District Court held that regulation the ex- ceeded the statutory powers of the Secretary under the Pass- port Act of 22 U. S. C. § 211a,13 granted summary 9 See CFR (1980). §§ 51.80-51.89
10Agee made no effort to exhaust administrative remedies. The Secre
tary initially defended on
ground.
(Jan.
Tr. 5-6
3, 1980). However,
Agee
after
conceded that his activities are causing or
likely
are
to cause
serious damage to
the
(see
national
11, infra),
n.
Secretary
did not
rely
continue to
on failure to exhaust available administrative
(Jan.
remedies. Tr. 17
3, 1980).
11Agee’s counsel certified that
any
aren’t
disputes
“[t]here
factual
the ease” and stated that
purposes
for the
of the motion “I would concede
any charge [the
against
Government]
want[s]
make
him.” Id.,
Secretary’s
See also
Statement of Undisputed
Facts,
Material
CA
App.
35. The
made clear that
the Government’s affidavits were
“an effort to establish the
things
kinds of
which would have been estab
through
lished
process
administrative
if
Agee
proceeded
Mr.
had
that
(Jan.
direction . . . .” Tr. 8
29, 1980).
judgment 1980). Supp. (DC Vance, F. Agee v. passport. B v. Agee affirmed. Appeals Court panel divided A It (1980). 2d D. 629 F. 46,C. App. S. Muskie, 203 U. to show required Secretary was held delegation express an either regulation authorized had ad- consistent” of a “substantial approval by implied or Rusk, 1,S. 381 U. Zemel practice, ministrative revo- authority statutory for express no court found of actual case other only one It perceived cation. promulgated it was since regulation under revocation pass- in which prior to instances other five secu- arguably “even actually denied were ports C., at 51- D. App. reasons.” rity policy note Appeals took The Court at 85-86. 2d, F. regulations, statutes, “a series Secretary’s reliance dating back advisory opinions orders and proclamations, reasoning authorities, to consider those but declined 1856,” assent *8 establishing congressional “the criterion that mere not the of imposition sanctions the actual inaction The at 86-87. 2d, F. Id., 629 52-53, at power.” of assertion “Agee’s that sufficient was that its held Appeals of Court treason,” on to border by some be considered conduct Id., 53, it.” at find we the law as bound are since “[w]e as material regarded it court also The 2d, 87. F. at 629 Ex- the of powers dealt with authorities Secretary’s the most 14 emergency” or national of war time “during Branch ecutive 14 of the American the seizure 1979, response to 14, On November emer a national declared Carter (n. 8, supra), President Embassy in Iran Order (1980). President’s The 457 12170, 3 CFR No. gency. Exec. Order Emergency Eco the pursuant to International finding, express an contains III), Supp. “that (1976 ed,, 1701-1706 Act, U. S. C. 50 §§ Powers nomic the extraordinary threat unusual an constitutes Iran the situation The economy the United States.” foreign policy security, national
or with respect to persons “engaged in criminal conduct.” Id., at 52, 629 F. 2d, at 86. granted
We certiorari sub nom. Muskie Agee, v. 449 U. S. 818 (1980), and stayed the judgment Court of Appeals until our disposition of the case on grant of certiorari.16
II The principal question before us is whether the statute au- thorizes the action of the Secretary pursuant to the policy announced by the challenged regulation.17
A Although the historical background that develop we later Secretary has never upon relied that Order justify the passport rev- ocation in present case. General restrictions on travel to Iran under passports American apparently go did not into effect until several months after Agee’s passport was revoked. See Exec. 12211, Order No. 3 CFR 253 (1980). Accordingly, our decision in this depend case does not on the declaration of emergency. 15The Court of Appeals stressed Agee had not been indicted. dicta, the court expressed approval (a) (1) CFR 51.70 (1980), § provides which for withholding of a passport if applicant subject is the of an outstanding felony federal warrant. App. C., 53, D. n. 2d, F. n. 10, citing Kent Dulles, 357 U. S. 127-128 Secretary represents Agee’s passport has been canceled and that provided Agee with identification papers permitting him to return to the United States. Arg. Tr. of Oral The regulations at issue contain an exception for “direct return to the UnRed States.” 22 CFR (a) (1980). §51.70 light of our decision 17 In issue, we have no occasion in this case to determine scope very “the delicate, plenary and exclusive power as President organ sole government federal in the *9 field of international relations —a power which require does not as a basis for its an exercise of act Congress, but which, course, of every like other governmental power, must be exercised in applicable subordination to the provisions of the Constitution.” See United Curtiss-Wright States v. Export Corp., 299 304, U. S. 319-320 See, statute. of the language with the begin we important, is Coutu, 754, 450 U. v. Assn. Research g., Universities e. pro- of 1926 Act Passport at The Zemel, 7-8. supra, (1981); part: pertinent in vides passports, and issue may grant Secretary of State
“The in verified issued, and granted, passports to and cause representatives by diplomatic foreign countries shall the President rules as . such States . under . United of the United on behalf for and designate prescribe verify or issue, grant, shall person no other States, IV). ed., Supp. (1976 § S. C. 211a 22 U. passports.” such in enactment original its since unchanged is language This 1926.18 the upon confer many in words not so Act does Passport mat- Nor, passport. a to revoke power applica- passport authorize denials
ter,
expressly
it
does
limit
expressly
any statute
Neither, however, does
tions.19
Secretary has
the
beyond dispute that
It
powers.
those
in the
specified
for reasons
passport
deny
to
power
the
Dulles,
S. 116
example,
in Kent
For
statutes.
in
acquiescence
congressional
recognized
(1958),
the Court
“par-
applicants
to
refusing passports
policies
Executive
escape
the toils
conduct, trying
illegal
ticipating
frauds,
engaging
or otherwise
promoting
law,
States.”
laws
United
which would violate
conduct
weightiest
Zemel,
“the
In
Id.,
127.
the Court held
at
changed
1874. See
pertinent
language
since
fact,
has not been
provision, enacted in
amendment
The sole
n.
infra.
impose geographic restrictions
power
Executive
limits
war,
armed
passports in the absence
States
the use of United
infra,
hostilities,
and n. 48.
danger
travelers.
imminent
See
1856, passports
not be
originally
However,
statute
enacted
States.
allegiance to the United
persons
do not owe
who
issued to
provision
way
supra,
in no
diminishes
Kent,
This
§212;
S. C.
persons.
eligible
Secretary’s
as to
discretion
*10
security”
considerations
authorized the
to restrict
travel
to Cuba at the time of the Cuban missile
crisis.
S.,
381 U.
at 16. Agee concedes
if
the Secretary
may deny a passport application for a certain
he
reason,
revoke a
on the same ground.20
Particularly in light
“broad rule-making authority
granted in the
[1926]
Act,” Zemel, 381
U. S.,
a con-
sistent administrative construction of that statute must be
“
followed
the courts
‘unless there are compelling indica-
”
tions that it is wrong.’
E. I. du
de
Pont
Nemours & Co. v.
Collins, 432
(1977),
U. S.
quoting Red Lion Broadcast-
ing Co. v. FCC,
Zemel,
(1969); see
supra,
at 11. This is especially so in the areas of foreign policy and
national security,
congressional
where
silence is not
to be
equated with congressional disapproval.21 In United States
v. Curtiss-Wright Export Corp.,
“In this vast external realm, its important, com- plicated, delicate manifold problems, the President alone has power to speak or listen representative as a of the nation. ... As Marshall said in great argu- ment of March 7, 1800, the House of Representatives, ‘The President organ the sole of the nation in its ex- ternal relations, representative and its sole with foreign ” Id., nations.’ Arg. Tr. of Oral 33. That has been the Secretary’s consistent con CFE, struction of the (a) statute. See (1980), 51.71 provides, § which alia, inter grounds that the denying passports for out set in 51.70 are also § grounds revoking, restricting, limiting passports. 21This case does not involve a criminal prosecution; accordingly, strict against construction required. Government is not construction, statutory considerations these Applying observed: Court Zemel *11 nature explosive and changeable of
“[B]ecause the fact that and relations, international contemporary which information immediately privy to is the Executive by, and acted to, evaluated swiftly presented cannot the Execu- giving legislature, by the upon —in foreign over matters authority tive affairs —must it cus- than broader brush awith necessity paint 17 S., in domestic areas.” wields tomarily supplied). (emphasis and foreign policy to intimately related
Matters intervention. judicial for subjects rarely proper security are the Court 580 (1952), S. Shaughnessy, 342 U. In Harisiades v. foreign “to the conduct relating that matters observed political entrusted to exclusively are so relations . . . from judi largely immune to be government as branches accord, & Chicago Id., 589; inquiry or interference.” cial Corp., U. S.S. Lines, Waterman Southern Air Inc. v. (1948). B of introduction which is, sense, A a letter passport a requests the bearer and issuing sovereign vouches Hackworth, Digest 3 G. sovereigns other the bearer. aid Very (1942). early, p. of International §268, Law Court observed: from its nature document, which, is passport] a
“[A purporting foreign powers; addressed object, is safely pass of it request, a the bearer to be rather in the freely; and is be considered charac- recog- bearer is political document, of a which the ter citizen; countries, as an American nised, by usage which, and the law of is nations, received as Urtetiqui D’Arcy, evidence of the fact.” Pet. With the enactment of legislation travel control making a passport generally requirement a for travel pass- abroad,22 port took on certain added characteristics. Most important for present purposes, the only means which an American can lawfully leave the country or return to it —absent a Presi- dentially granted exception passport. with a See 8 —is § S. C. 1185 (b) (1976 ed., Supp. As IV). a travel control document, proof both identity proof allegiance the United States. Even under a control travel statute, however, a passport remains in a sense a document by which the Government vouches for the bearer and for his *12 copduct. history of passport controls since days the of earliest
<^The Republic the shows congressional recognition of Executive authority to withhold passports basis of substantial the of reasons national foreign and policy)> to 1856, Prior when there was no statute on subject, the file per- common ception was that the issuance of a passport was committed to the sole discretion of the Executive and that the Executive would exercise power in the of interests the national se- curity and foreign policy of the United States.23 de- This from rived the generally accepted view policy exceptions With during the War of 1812 and the War, Civil see infra, 294, 25, 295, n. passports and mandatory were not until 1918. infra, See at 296-297. It was passports not until required 1978 that were by statute in nonemergency peacetime. 47, See n. infra. 23 Urtetiqui D’Arcy, In 692, Pet. (1835), the Court observed: “There is no of law the States, any United in regulating manner the issuing passports, directing or upon what evidence it done, declaring legal their effect. understood, is It as matter of practice, that some citizenship evidence of is required, by Secretary the State, before issuing passport. This, however, entirely discretionary with him.” From Executive.24 of the responsibility and province was premise the underlying endorsed outset, foreign policy and the areas of authority Executive sub- to specific application its but also security, ex- statutes enacted Early Congresses ject passports. authority respect the Executive recognizing pressly passports.25 provided adopted 1856, Act, Passport first
The issue grant be authorized “shall State Secretary of designate shall rules the President such as . . under passports . . . . .” States of the United and on behalf prescribe language permissive This broad 11 Stat. 60.26 23,§ pass- to issue Executive power change no worked passed was Act to do so. The it intended nor ports; was Government27 in the Federal authority passport centralize Secretary other re- all of State.28 in the specifically Act the 1856 spects, already possessed and authority an
“merely confirmed S., Curtiss-Wright Export Corp., 299 U. See, States v. g., e. United 1961). (Mentor 64, ed. pp. 392-396 320-321; Federalist No. pro 9, 205, 1803, 8, 26, Stat. the Act of ch. example, For Feb. § issuing knowingly from Department representatives abroad hibited State 4, 1815, 3 Stat. ch. aliens, of Feb. and the Act passports § enemy territory "without prohibited to or from travel Secretary War, State, or other first obtained from grant States, to of the United the President . authorized officer . . same.” *13 26 to” replaced phrase “shall be authorized amendment An 1874 history legislative are aware of no “may.” We Rev. Stat. with § relevant, it amendment is change. the extent that To pertinent to that recog “may” expressly ease; Secretary’s position in this supports the (1901). Op. Atty. 509, 511 23 discretion. See Gen. substantial nizes 27 by the confusion caused impetus the 1856 statute was The main period. of passports, a relic the colonial issuing officials and local state (1898). Passport 36-42 State, Dept, The American of See U. S. 28 statute, that became Mason, sponsor the bill of Senator pertains leave, to bill to all that of the the intention th§ stated: was “[I]t exclusively Executive, country . to the where . . of the diplomatic service Secretary
exercised State. authority of This was ancillary authority to his broader protect to American foreign citizens in countries and was necessarily incident general authority to conduct the affairs of foreign the United States under the Chief Executive.” Senate Committee on Government Reorganization Operations, of Passport of Department State, Functions 86th 2d Cong., Sess., (Comm. 1960). Print The President and the Secretary consistently con- State strued the preserve 1856 Act to authority their to- withhold passports security policy grounds. Thus, as emergency an in 1861, measure issued orders prohibiting persons from going entering abroad or country without passports; passports denying to citizens subject who were military bonded; service unless they were absolutely passports denying persons “on errands injurious hostile and peace to the country danger- to the ous Union.” 3 A Moore, Digest J. of International Law 920 (1906); Dept, State, The American Pass- port (1898).29 49-54 An opinion Attorney General Hoar granting held that the of passport “obligatory was not any case.” Op. Atty. Gen. 92. This was elaborated in 1901 in opinion Attorney an General Knox, which he stated:
“Substantial reasons exist for the use ‘may’ the word in connection authority to issue passports. Circumstances are conceivable which would it most inexpedient make for the public interests for this we consider the placed Cong. Constitution has Globe, Cong., it.” 34th 1st Sess., 29Despite widely publicized policy Executive restricting passport eligibility on national grounds, congressional action arguably response to it was a statute in 1866 which an re-enacted prohibition against issuing passports May 30, noncitizens. Act of 102, 14 ch. Stat. 54.
296
country grant passport to a to a citizen of the United Atty. Op. 509, 23 Gen. States.” 511. Theodore a rule 1903, promulgated President Roosevelt right in his
providing that of State “[t]he to refuse issue a exercise passport, discretion to and will right anyone believe, towards he has reason to desires who, 30 passport improper purpose.” to further an unlawful or 1917 Subsequent Executive Orders between 1907 and issued position.31 policy cast no doubt on this was enforced This in peacetime years deny passports to whose con- to citizens 32 “likely duct abroad was to States” embarrass the United “disturbing, or .were or endeavoring disturb, who to rela- country of this representatives tions with the 33 countries.” By enactment of in 1918,34 the first travel control statute 30 Governing Granting Passports Issuing Rules in the United States, Sept. 12, 1903, quoted 16, Moore, Digest in 3 J. A of International § (1906). Law 902 31 (1915); (1907); See Exec. Order 654 No. Order No. 2119-A Exec. (1916); Exec. Order No. 2362-A Exec. Order No. 2519-A Digest 268, Hackworth, pp. 498-499 G. International Law § (1942), discussing passport residing refusal of a an American citizen promotion “gambling developed China whose and immoral houses” had into a scandal. 33 Papers Relating Foreign 1907, United Relations States — p. 1082, discussing residing refusal of a to an American citizen Egypt slandering foreign diplomats. who was May 22, 1-2, pro Act of ch. 40 Stat. 559. This statute §§ part that, pertinent upon proclamation, “it vided Presidential wartime except provided by subject shall, as otherwise the President and to such exceptions prescribe, limitations as the President authorize any depart enter be unlawful for citizen the United States to from or attempt depart from or enter the United unless he bears a States passport.” valid 25, supra, application statute, n. which was limited in
Unlike hostilities, applied the then-current the 1918 Act “when the United proclamation. is at war” and the President issued Stat. States § *15 Congress made its expectation clear that the Executive would curtail or prevent international travel American citizens if it was contrary to the security. The legislative history reveals that the principal reason for the 1918 statute was fear “renegade Americans” would travel abroad and engage in “transference of important military information” to persons not entitled to it.35 The 1918 left the statute power to exceptions make in exclusively the hands the Executive, without articulating specific standards. Unless the Secretary power had to apply national security criteria in passport decisions, purpose the of the Travel Control Act would plainly have been frustrated.
Against this background, and while the 1918 provisions were still in effect, Congress enacted the Passport Act of 1926. The legislative history of the statute is sparse. However, Congress used language which is identical in pertinent part to that in the 1856 {supra, statute at 294), as amended,36 the legislative history clearly congressional shows aware ness of the Executive policy.37 There is no evidence any intent to repudiate the longstanding administrative construct ion.38 Absent such evidence, we conclude that Congress, Rep. 485, H. R. No. Cong., 65th 2d Sess., (1918). focused on the ease “aof United States citizen recently who returned from Europe after having, knowledge of our Government, done work in country a neutral for the German Government. strong There was sus picion that he came to the United for proper States no purpose. Never impossible theless itwas to exclude him but it would now be impossible prevent him leaving from country if he saw fit to do so. The known facts in his case are not sufficient to warrant institution prosecution, a criminal any and in difficulty event the legal of securing place evidence from Europe may easily imag activities Id., ined.” at 3. supra. See n. 37 Validity Passports: See Hearings on H. R. before House Foreign on Affairs, Committee Cong., 69th Sess., 5, 8, 1st (1926) 10-11 (1926 Hearings). incorporating Besides provision, the 1856 the 1926 Act added other provisions concerning fees and maximum terms passports. id., See construction administrative adopted longstanding Pons, 434 U. S. See Lorillard 1856 statute. 580-581 no change Act to work construed the 1926
The Executive interpreted it to authorize specifically prior practice and security or for- grounds of national passport denial of a of Executive unbroken line an eign policy. Indeed, officials,41and to consular Orders,39 regulations,40 instructions Depart- holders,42 President and notices *16 to damage of of State left no doubt ment thatQikelihood security foreign States was policy of United criterion in single important most decisions^ authorized are instructive. The 1952 version regulations in activities which passports engaged of to citizens denial designed protect to of the would violate laws promote order the national interest States United “[i]n assuring foreign conduct be free that the of relations shall Secretary Carr, re- 2. Assistant of State whom the House Committee anyone subject,” garded familiar than entire ex- as “more else with the plained only change existing pertinent in law worked authority recognize Act was to of State section of the 1926 empower consuls, diplomatic passports in officers, in addition to to issue Id., 1, foreign countries. 39 (1932); (1928); Order No. 4800 Exec. Order 5860 See Exec. No. (1938). 7856, Reg. Order No. 3 Fed. 681 Exec. 40 Reg. Reg. 5821, 6069-6070, (1941); 8013 6 6349 17 Fed. See Fed. (1952); (1958). 22 CFR 51.136 § State, Dept, Passport Prece See, g., e. U. Laws and Abstract (Nov. dents, Passport Instructions, 1, 1955), exclud Office Code No. 7.21 ing “[p]ersons whose travel would ... be inimical to the best interests States,” “[p]ersons endanger the United whose travel would security of United States.” Department passports From 1948 to notified all bearers of political affairs of would be in the countries” “interfere[nce] refusing ground refusing passports protection. taken as a for State, Dept, Passports (Jan. for Bearers U. S. Information eds.). through 15, 1955, Jan.
from unlawful interference.” Fed. Reg. (1952). The 1956 regulation amendment provided this pass- that a port should be denied to any person whose
“activities abroad would: (a) Violate the laws of the (b) United States; be prejudicial orderly to the conduct of foreign relations; or (c) otherwise prejudicial be the interests of the United States.” 22 CFR § 51.136 (1958).
This regulation remained effect continuously until 1966.
This history of administrative construction was repeatedly communicated to Congress, by routine promulga- tion of Executive Orders regulations, but also by specific presentations, including 1957 and 1966 reports by the De- partment of State explaining the 1956 regulation43 and a 1960 Senate Staff Report which concluded that “the author- ity to issue or passports withhold has, by precedent law, been vested the Secretary of State as part respon- sibility to protect American traveling citizens abroad, and what he considered to the best interests of the Nation.”
In 1966, the Secretary of State45 promulgated the regula- tions at issue case. CFR (b) §§ 51.70 (4), (a) 51.71 *17 paralleling Closely the 1956 regulation, pro- these visions authorize passport revocation of a where Sec- “[t]he retary determines that the national’s activities abroad are
43 Hearing See Right on to Travel before the Subcommittee on Constitu Rights tional of the Senate Committee on the Judiciary, Cong., 85th 1st Sess., pt. 2, pp. (1957); Proposed 59-61 Controls, Travel Hearings on S. 3243 before the Investigate Subcommittee to the Administration Security Internal Act Other Internal Security Laws of the Senate Judiciary, Committee Cong., 89th 2d Sess., 72 44 Senate Committee on Operations, Government Reorganization of the Passport Department Functions of the State, 86th Cong., Sess., 2d 13 (Comm. 1960). Print 45 general delegation Pursuant to statute, 3 301, U. S. C. power § prescribe passport of the regulations President to delegated been to the Secretary. 11295, Exec. Order No. 3 (1966-1970 CFR 570 Comp.). 300 damage to the likely serious or are cause
causing
46
States.”
foreign policy
or the
the United
2
acquiescence may
recognized
congressional
Zemel
in
nothing
from
more than silence
sometimes be found
S.,
11;
381
see Udall
policy.
face of an administrative
U.
Tollman,
Norwegian Nitrogen
(1965);
16-18
Passport Zemel, Act. supra, at 11-12; see 2A C. Sands, Sutherland on Statutory Construction § 51.03, p. (4th ed. 1973); cf. Erlenbaugh v. States, United 409 U. S. 239, 243-244 (1972).49
The 1978 amendments are weighty evidence congres- sional approval of the Secretary’s interpretation, particularly in the regulations. Despite the longstanding and officially promulgated view that the Executive had power to withhold passports for reasons of national security and foreign policy, Congress in 1978, “though it once again en- acted legislation relating to passports, left completely un- touched the broad rule-making authority granted in the earlier Act.” Zemel, supra, at 12; accord, NLRB v. Bell Aerospace Co., 416 U. S. 274-275 (1974).50 Agee argues that the only way the can Executive establish implicit congressional approval is proof of longstanding and consistent power: claimed enforcement is, by showing that many passports were revoked on national Supp. IV). This amendment added the following language Pass- port Act: “Unless authorized law, may not designated as re- stricted for travel to or for any use in country other than a country with which the United States is war, where armed hostilities are in progress, or where there is imminent danger public to the health or physical safety of United States travellers.” provides The statute purpose of this amendment is “achieving greater United compliance States provisions of the Final Act of the Conference on Security and Cooperation in Europe (signed at Helsinki on August 1, 1975).” 92 Stat. 971. 49See Rep. S. also No. 94-1168, pp. 32-33 50Indeed, the inference of congressional approval is stronger here than in Zemel, where the Court relied on amendments to the Travel Control Act. S., 381 Here, 11-12. the amendment was to Passport Act itself. presumed therefore to have adopted the administrative construction. Pons, Lorillard v. 580 (1978). *19 302 he proposition, For this grounds. policy Kent, 127-128.51 S., at
xelies there is that Agee’s contention A necessarypremise the claimed for revocation occasions frequent were cases. those few of only a exercised power was Executive call few—to occasions—or were no there However^Cjtf in frequent of the absence authority play, into Secretary’s The exercise wholly is stances enforcement irrelevant^ situation, and factual to a in relation emerges power a simply be is not diluted power validity of the the continued no need to it. there use cause is been have there history is clear The few^situations damage to of serious likelihood
involving substantial as a States of the United foreign policy security or that in the abroad, and holder’s activities passport of a result exer- Secretary has arisen, the which have cases consistently^ the most Perhaps passports. power to withhold cised policy, of the administrative example notable enforcement of Con- attention surely escaped could not have which to a Member passport was the 1948 of a gress, denial support movement go abroad sought who ex- Another existing government.52 overthrow Greece by a man held of a the 1954 revocation ample was whose interests groups arms to abroad supplying was who United States.53 contrary positions taken were who persons of two Secretary passports revoked 1970, the hi- airplane to the an international sought to travel site 174-176 (1952). 61 Yale L. J. jacking.54 See also Note, 51 App. accepted argument. 203 U. S. Appeals See The Court of supra, 2d, quoted C., at F. D. p. Times, Apr. 11, 1948, E9. N. Y. See the Law —The National 39; Developments Brief for see Petitioner 1130, 1150-1151, Security L. Liberties, and Civil Rev. Interest Harv. n. 76 1970), Sept. 11, Rogers, (SDNY, Sirhan v. 70 Civ. See No. applied has construed his regulations consistently, and it would be anomalous to fault Govern- ment because so there were few occasions to exercise an- nounced policy practice. Although pattern of actual enforcement one policy, indicator Executive it suffices *20 that “openly Executive has power asserted” the at issue. Zemel, id., 381 U. S., at see at 10. 9;
Kent is contrary. not to the it There, was shown that the governmental policy claimed had not been enforced consist ently. The respects Court stressed that “as Communists these are rulings consistently scattered pat of one tern.” S., at 128. words, other Executive passports had to Communists, sought allowed some but deny one to Kent. The had Court serious doubts as reality any whether there was in policy definite in which Congress acquiesced. could have Here, by contrast, there no basis for a claim that the Executive has to enforce failed policy against engaged likely others in conduct to cause damage serious security policy. our It Kent say simply would turn its head to that because we only have had involving a few situations conduct such as record, this authority Executive lacks the to deal problem with the when it is encountered.55 Agee also contends that the policy statements Executive are entitled to weight many diminished because of them con- powers cern the of the Executive in wartime. However, no provides support argument. History statute for this elo- quently attests that grave problems security of national foreign policy are no formally means limited to times declared war.56
appeal dism’d, (CA2, Sept. 11, 1970) plaintiff’s request No. (denying relief). injunctive 55 Congress considered, enact, proposals spell passport but did not out standards in the 1926 Act. Hearings, See 1926 at 4-5. 56Congress necessary itself has from time to time deemed it to enact peacetime passport restrictions, and recognize those measures considerable Relying on the statement of the Court in Kent “illegal problems allegiance conduct” and far were, “so as relevant here, . . [grounds] . the fairly which it argued could adopted by were light prior administrative practice,” id., at 127-128, Agee argues enumeration was exclusive and is controlling here. This is not correct.
The Kent Court had no occasion to consider whether the Executive had the power revoke the ,jfco an in- whoseyQonduct dividual is damaging the national foreign policy of the United involved denials States':'-.Went solely on passports the basis of political beliefs entitled to First Amendment protection. See Aptheker Secretary of State, 378 S. 500 Although finding it unnecessary to reach the merits of that problem, constitutional the Kent Court emphasized the fact that beliefs, deal with “[w]e *21 associations, with ideological matters.” S., 357 U. at 130 (emphasis supplied). In particular, the Court noted that the applicants were
“being denied their freedom of movement solely be- cause of their refusal subjected to be to inquiry into their beliefs and They associations. not escape do seek to the law nor to They violate it. may or not be Communists. assuming But they are, only the law which Congress passed expressly curtailing the move- ment of Communists across our yet borders has not be- come effective. It would strange therefore be to infer that pending the effectiveness of that law, Secretary the has been silently granted by Congress the the larger, pervasive more power to curtail in his discretion the free movement of citizens in order to satisfy himself about Ibid, their or beliefs associations.” (footnote omitted). in g., Executive. E. discretion the (n. Act of 47, supra); Oct. Act May 30, of supra). (nn. 19, very dif- is alone standing beliefs accorded protection The Thus, conduct. accorded protection the from ferent that held Court the State, supra, v. Aptheker of pass- Kent, denied issue at policy the like which, statute beliefs political of basis the solely on to Communists ports presumption irrebuttable an “establishes unconstitutionally organiza- specified the of members are who individuals to inimical in activities engage passports, given if will, tions The 511. S., States.” United security the the safe- objective the legitimacy the recognized Court unarguable.” “obvious is our guarding issue the statute explained Court The 509. Id., at pro- “The available: alternative restrictive least the was rela- tenuous by a only supported travel against hibition membership organizational fact of bare between tionship Id., at proscribe.” to sought activity fight to “campaign Agee’s part speech are Beliefs contrasts case sense, this In that CIA.” States United pre No Aptheker,57 Kent and the facts with markedly Agee’s for involved, are otherwise, rebuttable sumptions, (1958), Dulles, U. S. Dayton is true same The issue to Secretary refused Dayton, Kent. case companion experi engage in India go sought physicist who to a “ with ‘connection applicant’s on Secretary relied research. mental with time at that his association Victory Committee for Science “ ” suspected persons ‘association his communists,’ and various anat presence alleged ring and espionage Rosenberg part of being material microfilming for allegedly used was York which in New apartment ” Although Id., at 146. government.’ aof the use obtained *22 ade grounds are undisclosed there question “[w]hether reserving the Secre that held action,” Court Secretary’s to sustain quate passport of a “only a denial Findings” showed tary’s “Decision citing Kent. impermissible,” today held to have we which reasons Appendix to in the Findings,” out set “Decision at 150. S.,'U. Dayton’s single instance a cite 150-154, does id., at opinion, Court’s move Communist “the support for mere from distinguished conduct, as Communists. known association ment” presents conduct countries a serious to danger American officials abroad and serious to danger the national security.58 policy
We hold that the in the challenged regu- announced “sufficiently lations is substantial and consistent” compel to Zemel, the conclusion approved that it. See S., at 12. Ill Agee also attacks the Secretary’s action on three constitu- grounds: tional first, that passport revocation his im- permissibly travel; his freedom to burdens second, action was intended penalize to speech exercise of free and deter his criticism of policies Government and practices; third, that failure to accord him prerevocation hearing- violated his Fifth procedural Amendment right due process.
In light of express language of the passport regulations, permits which application their only in involving cases likeli- hood of “serious damage” to national security or foreign policy, these claims are without merit. passport
Revocation of a
undeniably curtails travel, but
the freedom to travel abroad with a “letter of
introduction”
the form of
issued
the sovereign is subordinate
foreign policy
considerations; as such,
it
subject
is
governmental
reasonable
regulation. The
Court has
it plain
made
to travel outside
freedom
the United States must be distinguished from the right
travel within ’the United States. This was underscored in
ano Aznavorian,
v.
“Aznavorian the freedom of international basically equivalent travel to the constitutional right to interstate travel, recognized by this Court for over 100 years. California, Edwards v. 314 U. S. 160; v. Twining New Jersey, 97; S. 78, Williams Fears, supra, 283-287, See and nn. 1-8. *23 270, 274; Crandall v. Nevada, 6 Wall. 35, 43-44;
Passenger Cases, How.
C.
(Taney,
J., dissent-
ing). But this Court has often pointed out the crucial
difference between the freedom to travel internationally
and the right of interstate travel.
“ 'The constitutional
right of interstate travel
is vir
tually
United
unqualified,
States Guest,
v.
It is “obvious and unarguable” that no governmental
inter-
est
more compelling than the security of the Nation.
Aptheker
State,
v. Secretary
Measures
of our Government’s for-
eign intelligence operations plainly serve these interests.
Thus,
Snepp
States,
United
v.
“[The President] confidential sources of infor- mation. He has his agents in the form of diplomatic, *24 of in- Secrecy respect other officials. and consular necessary, highly be them gathered formation of harmful productive itof disclosure premature and 320. S., 299 results.” Waterman Lines, v. Air Inc. Chicago & Southern
Accord, 392- 64, pp. No. The Federalist 111; S., at 333 U. Corp., S.S. 1961). ed. (Mentor the United security of Agee jeopardized has Not of countries interests endangered the also he has but States, creating prob- thereby serious than the United other States59 — Re- foreign policy. and relations foreign American for lems certain perhaps travel, although Agee’s stricting only avenue is the activities, harmful Agee’s of all prevent to activities.60 limit these the Government open to protections Amendment First arguendo, that Assuming, First Amend- Agee’s boundaries, beyond our national reach Agee’s of The revocation no foundation. ment claim specifi- speech: of his content on the part rests operations intelligence disclosures repeated his cally, however, ago, Long personnel. intelligence names but that question would one recognized “[n]o Court recruiting to its obstruction might prevent government actual transports or dates sailing publication or the service ex Near v. Minnesota troops.” location of the number Free- Chafee, Z. (1931), citing Olson, rel. among other disclosures, Agee’s Speech dom of inter expressly grounded, Britain Agee’s deportation from was Great security of the to the alia, Agee’s “disseminating harmful information obtaining counseling] “aid[ing] others Kingdom,” his United security of the be harmful to publication information which could supra Wolf, at 289. Kingdom.” Agee n. P. & United L. injunction be limited an argues should Agee the Government Tr, Arg. secrecy Oral agreement. comply with ordering him to As ignores governmental interests at stake. argument This 36-39. outside injunction concedes, an would not enforceable such Agee Id., United States. things, have the purpose declared of obstructing intelligence operations and recruiting of intelligence personnel. They clearly are not protected the Constitution. The mere fact Agee engaged also in criticism of the Government does not render his beyond conduct the reach of the law.
To the extent the revocation of his passport operates in Agee, hibit is an action,” “it inhibition of rather than of Zemel, speech. S.,U. at 16-17 (emphasis supplied). Agee is as free to criticize the United States Government as he was when he a passport always held subject, course, — express limits on certain rights by virtue of his contract with the Government.61 See Snepp States, United supra.
On this record, the Government is not required to hold a prerevocation In Cole hearing. Young, v. supra, we held that employees federal who hold positions “sensitive” they “where could bring any about discernible adverse on the effects Na- security” tion’s may suspended be without presuspension a hearing. 351 S.,U. at 546-547. For the same reasons, when there is a substantial likelihood of “serious damage” to na- security tional or foreign result policy as a of passport hold- er’s in foreign activities countries, the. may Government take action to ensure that the holder not exploit sponsor- ship of his travels the United States. the Consti- “[W]hile tution protects against invasions of individual it rights, is not
61The District Court held that_sinee_ Agee’s conduct falls within the
regulation,
core of the
Agee
contend
regulation
that the
lackjstanding Jo
vague
is
(Jan.
overbroad.
11—12
3, 1980).
Tr.
agree.
We
See
Levy,
Parker v.
417 U.
(1974).
S.
755-756
any
event, there is no basis for a claim that
regulation
being
is
used as
subterfuge
punish
criticism of the Government. As evi-
case,
denced in this
interpretation
Government’s
of the terms “serious
damage” and
security”
“national
proper
shows
regard for constitutional
rights
precisely
holdings
accord with our
subject.
g.,
E.
Young,
Cole
v.
We opinion. with this proceedings for further consistent mand remanded. Reversed and concurring. Justice Blackmun, observa- I Brennan’s
There is Justice force, feel, some recon- post, 312-318, today’s decision cannot tions, Rusk, S. reasoning Zemel v. 381 U. fully ciled all Dulles, Kent (1965), and, particularly, upon cutting back somewhat the Court is (1958), and pre- I silentio. would have opinions in those cases sub aspects of forthrightly Court disavow ferred haveQhe long- of a may suggest Zemel Kent that evidence in this area is standing policy Executive construction None- congressional of the issue of probative authorization^ done, the Court in effect has believing this is what theless, join opinion. I its joins, Marshall Brennan, with whom Justice
Justice dissenting. rely on decisions of this
Today purports prior the Court by the Secre- passport the revocation of a support Court to I is fun- tary of Because believe such reliance State. that instead has de- damentally misplaced, and that the Court I holdings decisions, dissent. express from those parted I residing citizen Philip Agee, a United States Respondent current critic of employee is a former Germany, in West 62 constitutionally required. procedures are do not decide these We
311 the Central Intelligence Agency (CIA). Respondent writes speaks out extensively on United States clandestine in- telligence operations, with the stated goal disrupting the activity CIA. Part of his apparently involves the identifica- tion of United States undercover personnel through- situated out the world.
On December States United Consul General in Hamburg, West Germany, delivered letter1 to respond- ent him that his notifying passport had been pur- revoked suant to 22 CFR (b)(4) § 51.70 (1980). regulation, That combination § CFR 51.71 (a) (1980), permits revoca-
tion of a passport when Secretary “[t]he determines national’s activities likely abroad are causing or are to cause serious damage to the security national or the foreign policy of the United States.”
Agee declined to follow procedures administrative available to attack the revocation and brought instead this action in the District Court for the District of Columbia for declara-
1 The letter pertinent stated in part: Department’s “The predicated action is upon a determination made under provisions 51.70(b)(4) your of Section activities abroad are causing likely or are damage to cause serious security foreign policy or the of the United States. The reasons for Secretary’s are, determination in summary, early as follows: Since the 1970’s, your it has been stated intention to conduct a campaign continuous disrupt intelligence operations of the United carrying States. you campaign, out that have travelled in (including, various countries among others, Mexico, Kingdom, Denmark, the United Jamaica, Cuba Germany), your activities in those countries have caused serious damage foreign policy to the national and the of the United States. Your stated intention to continue such activities threatens additional Quoted damage Agee of the same kind.” Muskie, App. 203 U. S. 46, 48, (1980). D. C. 2dF. (a) (1980) revocation, Title CFR 51.71 restriction, allows § passport limitation of a where the national would not be entitled to passport pursuant issuance a new pur CFR 51.70 For § poses case, of this denial and revocation of a are treated identically. *27 For of State. Secretary the against relief injunctive
tory on the facial summary judgment cross-motions of purposes he was that conceded respondent the validity regulations, se- to national damage serious cause likely to was causing or cover- the within therefore, fell policy, curity and, or D. C. Muskie, App. S.U. Agee v. regulations. the age inter argued, 11. He App. (1980); F. 2d au- Secretary of State the given had Congress alia, that pass- which under regulations the thority promulgate to Vance, Agee v. Court, District Both the revoked. was port for the Appeals the Court of (1980), and Supp. F. argument accepted Circuit of Columbia District requested. the relief respondent granted
II ar- twice has Court The case. complicated a is not This whether determining analysis for mode of proper the ticulated authority the Branch the Executive delegated to Zemel 1926. Passport Act the under deny to Dulles, S. 116 357 U. v. Kent Rusk, (1965); v. that expect I confusing, and hardly analysis is would today’s judgment applied it, faithfully Court the had below. the decision affirm challenge reviewed Dulles, the Court supra, Kent appli- denying passports regulation
ato associa- beliefs Communist alleged of their because cants present concerning affidavits to file refusals and their tions that Observing Party. Communist membership past country impor- is an of this out travel into and right “liberty” guaranteed within included personal right tant stated Court id., Amendment, 125-127, Fifth by the pursuant “be liberty can any infringement dele- and that Congress,” law-making functions liberty must curtail Branch that Executive gations Act Passport id., at Because narrowly, construed expressly here —did not statute at issue 1926—the same *28 authorize the of passports denial to alleged Communists, Court examined cases actual passport refusals the Sec- retary to determine whether “it could fairly argued” that this category of passport refusals was “adopted by Congress in light of prior administrative practice.” Id., at 128. The was Court unable to find such prior administrative practice, and therefore held that the regulation was unauthorized.
In Zemel Rusk, v. supra, the issue was whether the Secre- tary could restrict travel for all citizens to Cuba. In holding that he could, the Court expressly approved the holding in Kent:
“We have held, Dulles, Kent v. supra, and reaffirm to- day, that the 1926 Act must take its content from his- tory: it authorizes passport those refusals and re- strictions ‘which it fairly could be argued were adopted by Congress in light of prior practice.’ administrative Dulles, Kent supra, at 128. So limited, the Act does not constitute an invalid delegation.” 381 S., 17-18.
In reaching its decision, the Court in Zemel relied nu- upon merous occasions when the Department State had restricted travel to certain international areas: Belgium in 1915; Ethi- opia in 1935; Spain in 1936; China in 1937; Yugoslavia the late Hungary 1940’s; in 1949; Czechoslovakia in 1951; Albania, Bulgaria, Communist China, Czechoslovakia, Hun- gary, Poland, Rumania, and the Soviet Union in 1952; Al- Bulgaria, portions bania, of China, Korea, and Vietnam in 1955; and Egypt, Israel, Jordan, Syria in 1956.
As in Zemel, Kent there is no dispute here that Passport ofAct 1926 does not expressly authorize Secre tary to Agee’s revoke passport. Ante, at 290.3 Therefore, the Passport Act 22 TJ. (1976 S. C. ed„ §211a Supp. IV), pertinent states in part: “The grant State and issue passports, and pass- cause ports to be granted, issued, and verified in foreign countries diplomatic regard exists “with there is whether inquiry remaining sole [here], an ad involved [revocation] to the sort ministrative"ñ'mc¿ic¿sufficiently and consistent substantial approved implicitly Congress had the conclusion warrant added). The (emphasis supra, at Zemel v. it.” Rusk, Zemél, test applies a page same today, citing Court in fact Kent of Zemél and markedly different f|om *29 “We states: Court by the latter. The disavowed’ expressly challenged regulations in the announced hold that the0ioKcp> the con compel consistent’ to 'sufficiently substantial is Zemél, S., See it. Congress approved has clusion that ob added). also The Court Ante, (emphasis 12.” at 306 at construction [the administrative that “a consistent serves ' there courts “unless by the must be followed Passport Act] ’ ” Ante, wrong.” is that it indications compelling are added). (emphasis long- Kent holds that Zemél nor clearly neither
But proof is construction sufficient policy or standing Executive Secretary’s ac- implicitly authorized Congress that must be practice hold an administrative cases tion. The that that mere states unequivocally in fact Kent demonstrated; longstanding how Executive —no matter construction is in Kent passage The sufficient.4 consistent —is quotation: of full worthy body large predecessor and its 1926 Act
“Under
repeat
again
over and
up which
grew
precedents
on the
discretionary act’
is 'a
passports
the issuance
courts,
scholars,
The
Secretary of Statei
part
the Presi-
such rules as
. . . under
representatives of the United States
States,
behalf of the United
prescribe for and on
designate and
dent shall
verify
issue,
passports.”
grant,
such
person shall
and no other
following the
understanding and
no trouble
courts have had
The lower
g., Lynd
Rusk,
App.
See, e.
Kent
Zemél.
holdings Rogers,
(1967);
Woodward v.
404-405,
945-946
389 F. 2d
D. C.
summarily
App.
(DC 1972),
aff'd,
C.
159 U. S.
D.
Supp. 974, 985
344 F.
2d 1317
486 F.
Executive,
Chief
Attorneys
and the
all so
General,
said. This long-continued executive construction should
said,
it is
enough,
to warrant
the inference that Con
gress adopted it. See Allen v. Grand Central Aircraft
Co.,
The Court’s requirement in Kent of evidence of the Execu tive’s exercise of discretion opposed as possession its discretion may best be preference understood for the ass^a strongest proof knew of and acquiesced in that presence authority)> of sensitive questions constitutional in the passport revocation context against cautions applying the normal rule that administrative constructions in cases of statutory construction given great are to be weight. Cf. *30 Tollman, Udall v. 1, 380 U. S. 16 (1965). Only when Con gress had silence in the maintained its face of a consistent and pattern passport substantial of actual denials or revoca tions —where parties object the will presumably loudly, per haps through legal action, Secretary’s the exercise of dis cretion —can this Court be sure that Congress is aware of the Secretary’s implicitly approved actions and has that exercise of discretion. Moreover, broad statements the Executive Branch relating to its in passport discretion the area lack the precision of definition that follow would from concrete appli of specific cations discretion in that cases.5 Although Con- 5 petitioner For instance, the a rule promulgated by cites the Execu providing tive Branch in of right “[t]he State has the in passport, discretion to refuse to issue a right will exercise this anyone who, towards he has reason believe, desires a to further improper Moore, an unlawful purpose.” Digest A J. of International (1906); Law 902 Brief for Petitioner 28. This hardly statement can over- Executive’s the of approval general register might gress pattern Executive’s disapprove of might still it policy, all cases. of categories specific in rule broad applying of require- Kent-Zemel ignore the Court only does Not by a consistent supported discretion that Executive ment Execu- very on relies it also but practice, administrative Kent. irrelevant deemed policy construction tive State Secretary of and the President noting that Thus, “[t]he preserve toAct [Passport] construed consistently on passports to withhold authority their reaches Court ante, at 295, the grounds,” policy longstanding adopted 1926, “Congress, out hold ante, at 297- statute,” the 1856 construction administrative opinions from quotes The Court these both cited Kent expressly But General. Attorneys relevant constructions of Executive examples opinions as ap- implicitly had whether to the determination ante, Compare authority. Secretary’s exercise proved the n. 11. 125, Dulles, S., at Kent v. with 295-296, at between issued Orders Executive on four similarly relies Court Kent though ex- even position, its and 1917 buttress of Executive examples as four Orders cited the same pressly Compare inquiry. proper to the inapposite constructions Dulles, supra, n. 10.6 Kent ante, n. Kent the constructions discounted the Court Where Executive, Chief scholars, courts, made Act “[t]he case today’s Court decides General,” Attorneys and the line “an unbroken from the basis constructions evident *31 the Executive’s Congress contours thought to communicate to passport on the discretion; than embellishment it little more indeed legislation itself. 6 Executive today’s Court, Court relies Kent with In contrast Compare Passport Act of 1926. passage of promulgated after Orders 124, Dulles, S., n. at 298, 39, Kent v. 357 ante, n. with
317 Executive Orders, regulations, instructions to officials, consular to passport holders.” Compare ante, at 298, notices v. Dulles, Kent supra, at 124 (footnotes omitted).7
The Court’s reliance on material expressly abjured in Kent becomes only understandable when appreciates one the pau- city of recorded practice administrative only evidence —the upon which Kent Zemel permit reliance —with respect to passport denials or revocations based on foreign policy or security considerations relating to an individual. The Court itself identifies three occasions over the past years when the Secretary has revoked passports for such Ante, reasons. at 302.8 And only one of these cases involved 7Even if the Court were correct to use administrative constructions of passport did legislation, by it- is no means certain that Executive construe the give Acts to it the discretion alleged here, since it sometimes unqualified referred to the rights passports. See, of citizens to g., e. Atty. Op. 114, Gen. (1876); Op. Atty. 397, (1871). Gen. Indeed the Department State sought legislation Congress from provide the authority sort of exercised 4110, case. See (6), S. 103§ Cong., 85th 2d (1958); Sess. Hearings on 2770, S. 3998, 4110, S. S. 4137 before the Foreign Senate Relations, Committee on 85tb Cong., 2d Sess., 1, 4 (1958); 14895, see (e), also H. R. Cong., 89th 2d §205 Sess. hardly This suggests thought Executive it had such authority. 8The Appeals Court below identified a total of six denials or revoca arguably tions were foreign policy for security or national reasons. App. C., 203 II. S. D. 2d, at 86. F. Two of the six occurred prior passage Passport Act of during 1950’s, three past years. one over the Judge opinion MacKinnon's dissenting below petitioner’s and the identify only brief a few However, more cases. as the petitioner readily admits: passport “Because files are maintained name rather category than applicant disposition, or reason virtually it is impossible compile comprehensive regarding data statistical denials on national foreign policy grounds.” Brief for Petitioner n. 22. wonders, then, petitioner One how the argue can was aware any practice, administrative when the data is unavailable even to the *32 challenged regulations to the pursuant a revocation Americans 7,835,000 were there alone, in 1979 Yet, case. Cen- Bureau of Commerce, Dept, S.U. traveling abroad. ed., (101st States the United Abstract sus, Statistical 1980). defensively, Court, somewhat record, the of this
In light applied and construed Secretary has “The comments: to fault be anomalous would it consistently, and regulations to ex few occasions so were there because the Government turn It would ... practice. policy the announced ercise had have we simply because say that Kent on its head in this as that such involving conduct only few situations a the authority to deal lacks record, the Executive course, Ante, Of at 303. is encountered.” when it problem there are because “faulting” Government no one is pass deny or revoke fit to it seen when occasions few The security reasons. national policy or foreign for ports today’s opinion that Zemel make, and Kent that point pass authority to revoke the Executive’s make, is that should constitutional important fraught with area an ports touches nar “construe therefore should that the Court rights, and Kent them.” or dilute curtail powers that rowly delegated all that Dulles, presumption supra, 129. v. deny Secretary to authority delegate expressly
must rea policy passports or revoke overcome authority. To such he exercise before sons Government implied delegation, against an presumption sufficiently substan practice “an administrative must show Only Rusk, S., Zemel consistent.” tial and Congress has im satisfy itself way can the Court in this Secretary. authority such exercise approved plicitly practice Judge MacKinnon any event, slim Executive. sufficiently sub- hardly consistent termed petitioner cite could practice pass the Kent-Zemel test. stantial administrative
III I suspect this case is prime *33 example adage the that “bad facts make bad law.” Philip Agee is hardly a model representative of our Nation. And the Executive Branch has attempted to use one of the only means at its dis- posal, revocation aof passport, to stop respondent’s damaging statements. just But as the Constitution protects both popu- lar and unpopular speech, it protects likewise both popular and unpopular travelers. it And is important to remember this decision applies not only to Philip Agee, whose ac- tivities could perceived as harming the national security, but also to other citizens who merely disagree with Gov- ernment foreign policy express their views.9
The Constitution allocates the lawmaking function to Con- gress, I fear that today’s decision has handed over too much.,of that function to the Executive. In permitting the Secretary to stop this unpopular traveler and critic of the CIA, the Court professes to rely on, but in departs fact from, the precedents two in the passport regulation area, Zemel and Kent. Of it course always is easier to fit oneself within the safe' haven of stare decisis than boldly to overrule precedents 9An excerpt from petitioner’s the portion argument oral par ticularly revealing: “QUESTION: General McCree, person supposing a right now were to apply for a passport go to Salvador, and when asked purpose of his journey, say, to denounce the United policy States sup- Salvador in porting junta. And the Secretary of says, State just I will not issue a passport for that purpose. you Do think that he can consistently do that in the light previous of our cases?
“MR. McCREE: I say, would yes, he can. Because we have to vest these —The President of the United States and the Secretary of State working under him charged are with conducting the foreign policy of the Nation, and the speech freedom of enjoy that we domestically may be different from that we can exercise in this context.” Tr. of Oral Arg. 20. The reach of the Secretary’s discretion is potentially staggering. myself I ~unable find standing. Because decades’ of several case, how- decision in with the those to reconcile cases sub silentio the Court’s disagree because I ever, I cases, overruling of those dissent.10 unlawful regulation as an is invalid Because I conclude Passport Act of authority by under exercise of in this presented issues important constitutional I need not decide the Agee’s treatment However, parts whirlwind of the Court’s several case. they extreme are comment, either because claims constitutional merit law views or mistaken oversimplifications of constitutional doctrine this case. and facts of First, the Court states: Agee, operates to inhibit of his “To extent revocation free Agee is as speech. . . action,’ . rather than ‘it is an inhibition *34 he held he when as was United Government
to the States criticize rights certain express course, limits passport always subject, of to — (footnote Ante, at 309 the by his Government.” virtue of contract omitted). 40-year prison rationale, suppose that I would Under Court’s the food Government’s person criticized the imposed upon a who
sentence all, After only “inhibition of action.” policy represent an stamp would United States Govern- the free to criticize the would remain individual jail ment, from a cell. albeit “was intended passport of his argues the revocation Respondent that policies and United States of penalize, deter his criticism harass, and
to Respondent Brief for practices, the First Amendment.” violation of Court answers: 112. The purpose the declared things, have disclosures, among other “Agee’s intelligence person- recruiting and the intelligence operations obstructing Ante, 308- clearly protected by the Constitution.” They
nel. are. not Court, for prior precedents The Court seemá to misunderstand However, undoubtedly the Constitution. protected Agee’s speech is out- speak is to right First Amendment may respondent’s that it be point security. The in national interest weighed by the Government’s consideration, that is worthy plenary makes, that is one respondent Amendment First obviously implicate does of his revocation responsi- Court’s speak, therefore by chilling right to rights govern- asserted against the infringement bility to balance must be First contravenes revocation whether the to determine mental interests Amendment. I add that Near Olson, v. Minnesota ex rel. (1931), hardly is a relevant convincing precedent to sustain the Secre tary’s action here. Only proof when there is activity that the “must inevi tably, directly, and immediately cause the occurrence of an event kindred imperiling safety to transport of a already at excep sea” does the Near apply. tion New York Times States, Co. United 403 U. S. 726-727 (1971) J., concurring). Agee’s concession in the trial court (Brennan, only below was for purpose challenging validity the facial of the regulation, its application not to his Therefore, case. until the facts known, are the majority no less than I Agee’s can have no idea whether actually conduct would fall within the category presented extreme factual by Near. Second, the purports Court agree with the holding District Court’s Agee lacks standing to contend regulation vague that the and over- broad because his conduct falls within the regulation. Ante, core of the n. 61. I find this an untenable conclusion on the record before precedents us of this Court. The Court District held nowhere respondent standing vagueness lacked to contend and overbreadth. most, At pages on the Court, cited Judge stated: Gesell “Your you client, conceding, would be falls objective within the core of the regulation and the fact that it somebody as over-broad else very persuasive isn’t (Jan. 3, 1980). me.” only Tr. Not is this obviously not a holding, Judge did mention Gesell never vagueness, portions but further transcript clearly establish that Judge expressly Gesell declined to reach Agee’s overbreadth claim for purposes summary judgment of this motion, and that this claim was reserved future Id., any event, strange consideration. at 16. it is suggest indeed to admittedly that an individual whose fall activities within challenged the core of the regulation standing argue does not have *35 all, purpose After overbreadth. overbreadth doctrine First Amendment precisely permit cases is person who falls within the legislation challenge sweep nevertheless legislation wide of the as it protected activity. See, g., Gooding affects another’s e. Wilson, v. U. S. 520-521 nothing Levy, And in Parker U. S. 733 (1974), Court, the case cited detracts from that doctrine.
Because the Court Agee concludes that standing has no to raise vagueness claims, question it overbreadth does not decide the whether challenged regulation is constitutionally infirm under those doc- only say that, I me, trines. can high- these are substantial issues particularly lighted Solicitor argument General’s comments at oral regulations. supra. to the reach See as n.