248 F.2d 561 | D.C. Cir. | 1957
Lead Opinion
announced the judgment and division of the court as follows:
The judgment of the District Court, granting the Secretary’s motion for summary judgment, is affirmed. Judges Prettyman, Miller, Washington, Danaher and Bastían vote to affirm. Judges Ed
Judge Prettyman files an opinion in which Judges Miller, Danaher and Bastían concur. Judge Washington files an opinion concurring in the result reached by Judges Prettyman, Miller, Danaher and Bastian. 101 U.S.App.D.C. -, 248 F.2d 576. Judge Bazelon files a dissenting opinion in which Judge Edgerton concurs. 101 U.S.App.D.C. -, 248 F.2d 579. Judge Edgerton also files a separate dissent. 101 U.S.App.D.C. -, 248 F.2d 596. Judge Fahy files a dissenting opinion. 101 U.S.App.D.C. -, 248 F.2d 597.
PRETTYMAN, Circuit Judge, with whom WILBUR K. MILLER, DANA-HER and BASTIAN, Circuit Judges, concur: Appellant, Dr. Walter Briehl, applied in April, 1955, to the Department of State for renewal of a passport, stating his desire to attend an international psychoanalytic congress in Geneva and a World Mental Health Organization Congress in Istanbul. He was and is engaged in the practice of medicine, specializing in psychiatry. In prior years he had attended international meetings in this field. The Director of the Passport Office wrote him that “it would be helpful to the Department if you would furnish an affidavit setting forth whether you are now or ever have been a Communist, and explain your connections with” certain named organizations. Dr. Briehl’s attorney replied, saying in part:
“My clients refuse to submit the affidavits your letters request. Your demands and the vague and formless standards of the passport regulations under which you purport to act are palpable violations of their Constitutional rights, including, but not limited to, the First, Fifth, Ninth and Tenth Amendments.”
The attorney described Dr. and Mrs. Briehl’s professional interests and concluded by saying: “Demand is hereby made that passports as applied for by them be issued forthwith.”
Thereupon the Director of the Passport Office wrote Dr. Briehl, saying in part:
“I regret to inform you that after careful consideration of your application for the renewal of passport facilities, the Department of State is obliged to disapprove your request tentatively on the ground that the granting of such further passport facilities is precluded under the provisions of Section 51.135 of Title 22 of the Code of Federal Regulations. A copy of the pertinent Regulations is enclosed for your information.
“In cases coming within the purview of the Regulations above referred to, it is the practice of the Department to inform the applicant of the reasons for the disapproval of his request for passport facilities insofar as the security regulations will permit. In your case it has been alleged that you were a Communist.”
Dr. Briehl’s attorney replied in part:
“[My clients] wish you to be advised that they do not choose to offer any evidence in support of their applications for passports unless and until they are confronted with the informers your letter states have furnished you with proof that they have been, are, or intend to engage in acts contrary to the national interests of this country.”
Thereafter the attorney wrote several times demanding the issuance of the passports and “an evidentiary hearing”. An “informal” hearing was arranged. Dr. Briehl, his attorney, and two representatives of the State Department attended. The attorney made an extended statement, in the course of which he recounted the correspondence, described
“Our first point, therefore is that medicine has nothing to do with politics and you may not introduce and confuse the issue of his right to practice medicine and his right to study, and his right to participate in conferences by injecting this issue of politics in connection with his travel abroad. When a physician has a legitimate purpose in going abroad as was stated here, all issues of political affiliations, past or present, definite or indefinite, good or bad, are irrelevant. That will be our first point. * * * My second point is that everyone has the right to travel regardless of political considerations. * * * Now we turn to the third point. * * * that you confront us with the evidence against Dr. Briehl. * * * It is up to the Department to support those allegations by evidence and witnesses which we can examine and confront. * * * [W]e have a right to what the courts have now called a quasi judicial hearing, * * * and * * * it is the Department’s job to prove not only the facts with respect to each of these allegations but it is the Department’s job to prove wherein each of these activities was wrong and wherein the activities were in violation of the laws of the United States.”
The attorney later said:
“* * * Dr. Briehl will not execute an affidavit of the kind you requested. He will not execute an affidavit with respect to past membership; he will not execute an affidavit with respect to present membership ; he will not execute an affidavit with respect to future membership. And that does not apply only to the Communist Party situation, it applies to any political activities or associations or- beliefs because those are things which we think are irrelevant to the right of travel and particularly irrelevant, in fact, incredibly so, to the right of a physician to travel for the purposes indicated in the application for the passport renewal.”
In response to a letter from Dr. Briehl’s attorney, counsel for the Board of Passport Appeals replied:
“It is understood that you appeared with your client, Dr. Briehl, at a hearing in the Passport Office on August 30, 1955. It is further understood that Dr. Briehl refused to execute an affidavit as to present or past membership in the Communist Party, having been requested to do so by the Passport Office. The Board has not been advised of any further processing of this case under Section 51.137 of the Passport Regulations.
“In these circumstances, the Board could not entertain an appeal from Dr. Briehl at this time. Your attention is invited to Sections 51.138 and 51.142 (22 CFR) of the Passport Regulations, and Sections 51.156(2) and 51.147 (22 CFR) of the Rules of the Board.”
And a few days later the Passport Office wrote:
“You will recall that during the recent informal hearing in which you represented Dr. Briehl, he refused to explain or deny the allegations concerning him. He also refused to submit an affidavit setting forth whether he was or ever had been a member of the Communist Party.
“In view of the above, the Department knows of no further action which it can appropriately take in the case of Dr. Briehl.”
Dr. Briehl filed a civil action in the District Court, naming the Secretary of State as defendant. He prayed for a judgment decreeing that he is entitled to a passport under the statutes, that the passport regulations of the Secretary of State are invalid and illegal, and
The Secretary answered, and a motion .and a cross motion for summary judgment were made, with supporting affidavits and exhibits. The court rendered .a brief opinion, denied the plaintiff’s motion, and granted the motion of the Secretary.
In this court Dr. Briehl divides his argument into four main points:
1. Appellant’s constitutional right to travel could not be conditioned upon his execution of a non-Communist affidavit or compliance with any other political test.
2. Appellee’s regulations deprive appellant of procedural due process and the quasi-judicial hearing to which he is entitled under the recent decisions of this Court.
3. The regulations are not authorized by statute, they conflict with the will of Congress and were invalidly promulgated.
4. The Secretary has not made out a ease against appellant, even under the Regulations.
The arguments thus advanced involve consideration of six basic subjects.
I
The nature of the Communist movement. Dr. Briehl’s underlying premise, as shown by the statements we have quoted, is that Communist membership or affiliation is a matter of politics, an issue of political affiliation, a political consideration, a political test, and thus is subject to the same rules which apply to political beliefs generally. But it is not so. The Communist organization and program have long since passed beyond the area of mere politics and political opinion. All three branches of the Federal Government — the executive, the legislature, and the judiciary — have declared unequivocally that the Communist movement today is an international conspiracy aimed at world domination and a threat to the internal security of this country. The foreign policy and a large part of the fiscal policy of the Government are based upon that proposition.
The Congress declared in 1950:
“There exists a world Communist movement which, in its origins, its development, and its present practice, is a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups (governmental and otherwise), espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.”1
President Truman declared in 1950:
“WHEREAS world conquest by communist imperialism is the goal of the forces of aggression that have been loosed upon the world; and
“WHEREAS, if the goal of communist imperialism were to be achieved the people of this country would no longer enjoy the full and rich life they have with God’s help built for themselves and their children; they would no longer enjoy the blessings of the freedom of worshipping as they severally choose, the freedom of reading and listening to what they choose, the right of free speech including the right to criticize their Government, the right to choose those who conduct their Government, the right to engage freely in collective bargaining, the right to engage freely in their own business enterprises, and the many*566 other freedoms and rights which are a part of our way of life; * *
In his Inaugural Address of January, 1957, President Eisenhower said:
“The divisive force is international communism and the power that it controls.
“The designs of that power, dark in purpose, are clear in practice. It strives to seal forever the fate of those it has enslaved. It strives to break the ties that unite the free. And it strives to capture — to exploit for its own greater power — all forces of change in the world, especially the needs of the hungry and the hopes of the oppressed.”3
In his State of the Union speech on January 10, 1957, the President had said: “The existence of a strongly armed imperialistic dictatorship poses a continuing threat to the free world’s and thus to our own Nation’s security and peace.”
The Supreme Court has held valid and sufficient the findings of Congress
There exists in some quarters a dogged insistence that the Communist movement be treated as any other political organization. It is as though one argued that, since opiates and aspirin both possess medicinal properties, they must be subjected to the same permissions and restrictions. The fact is that opiates are to be and are regulated because of their own peculiar characteristics. And so is the Communist movement and its affiliates. It would be inexcusably naive for any court to declare in the present state of the world that adherence to the Communist cause is a mere matter of politics or political opinion. We shall treat the Communist movement according to what the Congress, the President, and the Supreme Court have declared it to be.
II
The power of government in foreign affairs. Whatever may be the dispute— and it has been extended and intense— as to the division of this power as between the President and the Congress, it seems settled beyond dispute that those two branches between them possess the totality of the power. In a long line of cases, beginning perhaps with Foster v. Neilson
“The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review .and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”16
The range of permissible judicial action in the case at bar is narrowed also by the fact that the Secretary is acting in the context of a national emergency. Only the President may declare an emergency; he has done so.
There are of course in any government formed upon a constitution residual areas within which the judicial branch may act in respect to a power even so unfettered as is the executive power in foreign affairs. If the President were in gross defiance of constitutional limitations, or perhaps even of congressional prohibitions, the judiciary might act. The Supreme Court has also held
It must be kept in mind that the power of the judiciary to inquire is vastly different from its power to act. A court often has jurisdiction to determine whether it has jurisdiction. The books are full of cases in which the courts have examined with meticulous care complaints alleging invalidity of executive action in foreign affairs. But seldom
The inquiry in the case before us is whether the Secretary has so far violated constitutional prescriptions or specific congressional limitations as to cast his action outside the exceedingly broad boundaries within which he is free to act without judicial review.
Ill
The nature of a passport. In Urtetiqui v. D’Arbel
“It is a document, which, from its nature and object, is addressed to foreign powers; purporting only to be a request, that the bearer of it may pass safely and freely; and is to be considered rather in the character of a political document, by which the bearer is recognized, in foreign countries, as an American citizen; and which, by usage and the law of nations, is received as evidence of the fact.”23
But, whatever may have been its nature in the past, the pertinent characteristic of a passport in the present controversy is that it is a requisite for going abroad. And thus it has become a tool with which the Department of State can prevent the presence of any American citizen in a foreign country.
A statute,
IV
The right to travel. The present dispute over passport denials is less than a decade old, but its antecedents are to be found deep in the history of Anglo-American law. The English sovereign had for many centuries a recognized right to prevent foreign travel and to recall subjects from abroad.
The Articles of Confederation
“What in England was the prerogative of the sovereign in this respect, pertains under our constitutional system to the national authority which may be exercised by the Congress by virtue of the legislative power to prescribe the duties of the citizens of the United States.”
While Blaekmer refers to the power to limit foreign travel as being exercised by the Congress, the power is not solely congressional. In matters pertaining to war and emergency or to the foreign policy, the power may reside in the executive or in both branches jointly. Whatever the theoretical residence of such power, the power to limit travel has in fact been exercised through the cooperative efforts of Congress and the President. During the War of 1812 Congress forbade citizens to travel into enemy countries without passports.
In 1856 Congress had granted the Secretary of State sole authority to issue passports.
The machinery which today enables the State Department to regulate travel through passport control began to take shape in June of 1941, when Congress
By act of June 27, 1952,
“Sec. 215. (a) When the United States is at war or during the existence of any national emergency proclaimed by the President, * * and the President shall find that the interests of the United States require that restrictions and prohibitions in addition to those provided otherwise than by this section be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, * * *
“(b) * * * and while such proclamation is in force, it shall, except as otherwise provided by the President, and subject to such limitations and exceptions as the President may authorize and prescribe, be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid passport.”
This statute applies to any national emergency. It would appear that the Korean emergency, existing when the statute became law, made the section above quoted immediately operative. Any doubt on this score was removed by President Truman’s proclamation of January 17, 1953,
Two conclusions emerge from this complex series of laws, proclamations and orders. First, it is forbidden to leave this country without a passport. This rule was specifically provided by the Congress in the 1952 act, by the Presi
Shortly after the passage of the 1952 act the Secretary issued additional regulations to govern the issuance of passports.
V
The regulations of the Department. The regulations which the Secretary promulgated
“Oath or affirmation by applicant as to membership in Communist Party. At any stage of the proceedings in the Passport Division or before the Board, if it is deemed necessary, the applicant may be required, as a part of his application, to subscribe, under oath or affirmation, to a statement with respect to present or past membership in the Communist Party. If applicant states that he is a Communist, refusal of a passport in his case will be without further proceedings.”
The substantive part of the regulations
The regulations in no way attempt to implement an unlimited discretion in the Secretary. They provide for peremptory denial of a passport under only one circumstance, admitted present membership in the Communist Party (Sec. 51.142). Standards for denials upon other grounds are set up. That section of the regulations (51.135) obviously contemplates findings upon facts. It uses such terms as “under such circumstances as to warrant the conclusion”, “not otherwise rebutted by the evidence”,; and “on the balance of all the evidence”. Thus the regulations clearly require facts — revealed or unrevealed — and an evaluation of information. They do not provide for an unfettered discretion. Such provisions are the normal content of statutes or regulations which establish criteria for administrative action. Moreover, as we read the regulations, they refer to knowing associations with Communism.
As we have pointed out, the Communist movement is, in the view of this Government, an aggressive conspiracy potentially dangerous to this country. Travel abroad by members of or adherents to the Communist movement is obviously an easy method of communication between such persons or organizations in this country and the prime sources of Communist policy and program in the Soviet Union and its satellites. Once a person with a passport is out of this country, this Government has no control over where he goes. His travel is controlled entirely by whatever countries he thereafter wishes to leave and to enter. The Department of State has authority to refuse to facilitate that communication.
In the second place, unless all the major foreign and fiscal policies of this. Government, under two administrations, of opposing political parties, have been a gigantic fraud, it is the unequivocal duty of the Department of State to prevent international incidents which might arouse hostile activities on the part of the Soviet Union or its satellites. To-that end the Secretary may refuse to permit an adherent of the Communist movement, clothed with American citizenship, from being present in places where he may readily create incidents or may assert statutory rights to activity on the part of this Government in his behalf. The Secretary may preclude potential matches from the international tinderbox.
We therefore conclude that persons properly found to come within Section 51.135 of the Regulations are not illegally denied any constitutional right if they are refused passports.
It is suggested to us that, since the Internal Security Act of 1950
VI
The requirement for an affidavit. In the case at bar Dr. Briehl was advised in writing that it had been alleged he was a Communist. He was required to admit or deny that allegation-, under oath before the proceeding on his application went further. Dr. Briehl urges, as we have seen, that he is entitled to be confronted with witnesses and evidence sustaining the Secretary’s suggestions of Communist affiliations. He says he is entitled to that revelation without first filing an affidavit in response to the-suggestions. He says this is a requisite of due process. But our judicial process knows no such requirement. Our judicial process is that a party must plead before he is entitled to trial. There is-nothing new or novel about that. Dr. Briehl says he is entitled to know his opponent’s evidence before he pleads. Under the rules of civil procedure, if a defendant party does not plead, a default, judgment is entered against him. We-
It is said that if Dr. Briehl should admit being a member of the Communist Party • his application would thereupon promptly be denied, and therefore, it is said, no administrative remedy is really afforded him. But precisely the same thing happens to any party to a lawsuit. If he admits his opponent’s allegations of fact he gets no evidentiary hearing; he gets an oral argument and perhaps a summary judgment against him. We know of no rule or doctrine that, if a party to a controversy admits adversary allegations of fact, the proceeding is void if no evidentiary hearing is thereafter afforded him. It is elementary that a party must raise an issue of fact in order to get a hearing on the facts.
In National Council of American-Soviet Friendship v. Brownell,
Moreover Dr. Briehl is an applicant. There is nothing new or novel about requiring an applicant for a permit or a license to supply pertinent information under oath. Applicants for radio licenses and air route certificates must do so, and applicants for marriage licenses, voting privileges, and business permits must also. And, failing to supply the required data, the applicant cannot exercise his right. We know of no reason why an application for a passport .should not be treated by the usual rules pertaining to applications. If Communist Party affiliations are pertinent to the Secretary’s decision upon the possible consequences or complications of an applicant’s presence in foreign countries or his roving about foreign areas in present world conditions, we see no reason why Communist affiliations should not be part of the data required by the application.
Dr. Briehl complains that the evidence in respect to the allegations asserted in the Secretary’s advices to him may be in part confidential, and he argues that such possibility effectively nullifies the due process of the procedure. He seeks to bring the situation within the doctrine followed by the Ninth Circuit in Parker v. Lester,
“The marked difference between foreign affairs and domestic affairs in this respect is recognized by both houses of Congress in the very form of their requisitions for information from the executive departments. In the case of every department except the Department of State, the resolution directs the official to furnish the information. In the case of the State Department, dealing with foreign affairs, the President is requested to furnish the information ‘if not incompatible with the public interest.’ A statement that to furnish the information is not compatible with the public interest rarely, if ever, is questioned.”
Further justification for secrecy in a case of this type is supplied by the fact that the nation is in a state of national emergency, caused by the infiltration program of the Communist movement. During such an emergency cabinet officers may be forced to act on the basis of information the publication of which is inconsistent with national security. When the Secretary of State avows that in the interest of national security he cannot spread certain information on an open record, and explains with as much particularity as possible the reasons why he cannot do so, courts must rely upon his integrity and accept his statement.
We held in Boudin v. Dulles
In summary on this point we are of opinion that, if a person falls within one of the classes described in the regulations, the Secretary may refuse him a passport; and it follows that, if it be alleged he is in one of those classes and he refuses to admit or deny the allegation, the passport may be refused.
From the foregoing basic considerations some conclusions are easily reached. We summarize. In the deliberate judgment of this Government the Communist movement is today a conspiracy for world domination sufficiently threatening to the security of this nation to justify the expenditure of billions of dollars every year to thwart its ambitions. Limitations and prohibitions upon leaving one’s country and traveling abroad have been enforced in periods of stress since time immemorial. It would be idle, if not ridiculous, in view of the absorption of the whole world in the problem of the Communist program and of the extent of the attention and activity of our own Government in that respect, for any court to say the present is not a period of stress in international affairs. The present limitations upon travel effectuated by passport control are authorized by statute and by presidential proclamation. They are, as we said in Shachtman v. Dulles,
Analyzed to its underlying elements the critical problem in the case before us is simply whether the Secretary of State may decline to issue a passport to a person who refuses to admit or deny that he is a member of the Communist Party. We think he may. Or to state the problem in different terms, it is whether membership in or adherence to the Communist Party is a valid subject of inquiry prerequisite to the issuance of a passport under world conditions. We think it is.
We are of opinion that the disputed regulations of the Secretary are valid and that Dr. Briehl did not qualify himself for a passport under them. The judgment of the District Court, granting the Secretary’s motion for summary judgment is
Affirmed.
. 64 Stat. 987, 50 U.S.C.A. § 781(1).
. Proc. No. 2914, 64 Stat. A454, 50 U.S.C.A.Appendix note preceding section 1.
. 103 Cong.Rec. 729 (daily ed. Jan. 21, 1957).
. 103 Cong.Rec. 389 (daily ed. Jan. 10, 1957).
. Id. at 390.
. Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954).
. Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951).
. Supra note 6, 347 U.S. at page 529, 74 S.Ct. 737.
. 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950).
. And see the opinion of Mr. Justice Jackson in American Communications Ass’n v. Douds, id., 339 U.S. at page 424 et seq., 70 S.Ct. 674, with its accumulation of underlying data.
. 2 Pet. 253, 27 U.S. 253, 7 L.Ed. 415. (1829).
. 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936).
. 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937). Belmont is discussed at length and with approval in United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796 (1942).
. 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948).
. 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881 (1948).
. Supra, 333 U.S. at page 111, 68 S.Ct. 431. Extensive discussions of the doctrines underlying the powers of the President are in the opinions in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).
. Proc. No. 2914, supra note 2.
. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943).
. 44 Stat. 887 (1926), 22 U.S.C.A. § 211a; 66 Stat. 190 (1952), 8 U.S.C.A. § 1185.
. Perkins v. Elg, 307 U.S. 325, 349, 59 S.Ct. 884, 83 L.Ed. 1320 (1939).
. See Carrington, Political Questions: The Judicial Check on the Executive, 42 Va.L.Rev. 175 (1956).
. 9 Pet. 692, 34 U.S. 692, 699, 9 L.Ed. 276.
. See 3 Hackworth, Digest of International Law § 259 (1942).
. 15 Stat. 224 (1868), 8 U.S.C. § 903b [now 22 U.S.C.A. § 1732].
. 339 U.S. 763, 770, 70 S.Ct. 936, 94 L.Ed. 1255 (1950).
. 1 Bl.Comm. * 265; 3 Co.Inst. * 178; 1 Holdsworth, History of English Law 230 (6th ed. 1938); Taswell-Langmead, English Constitutional Law 128-130 (4th ed. 1890).
. 2 Encyclopaedia Britannica, Anselm (1945); Beames, Ne Exeat Regno 1-2 (2d ed. 1824).
. See Note, Passports and Freedom of Travel: The Conflict of a Right and a Privilege, 41 Geo.L.J. 63 (1952), for a detailed account of the history of the Magna Carta and the status of the common law in this regard.
. 3 Co.Inst. * 179.
. Id. at * 178-179.
. 5 Richard II, c. 2, §§ 6, 7 (1381), 2 Stat. at L. 236 (Pick.1762).
. See Note, 41 Geo.L.J., supra note 28, at 70; Diplock, Passports and Protection in International Law, 32 Grotius Soc. 42, 44 (1947).
. Diplock, supra note 32, at 53.
. Art. IV.
. Art. IV, § 2. See Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927) ; Williams v. Fears, 179 U.S. 270, 21 S.Ct. 128, 45 L.Ed. 186 (1900).
. Bauer v. Acheson, D.C.D.C., 106 F.Supp. 445.
. Shachtman v. Dulles, 96 U.S.App.D.C. 287, 225 F.2d 938 (1955).
. 284 U.S. 421, 437-438, 52 S.Ct. 252, 76 L.Ed. 375 (1932).
. 3 Stat. 199 (1815).
. Dep’t of State, The American Passport — History and Digest 50 (G.P.O. 1898).
. 11 Stat. 6.
. 40 Stat. 559, 22 U.S.C.A. §§ 223-226b.
. 40 Stat. 1829 (1918).
. 44 Stat. 887 (1926), 22 U.S.C.A. § 211a.
. Exec.Order No. 7856, 3 Fed.Reg. 681, 22 C.F.R. §§ 51.1-51.77 (1949).
. 55 Stat. 252, 22 U.S.C.A. § 223.
. Supra note 42.
. Proc. No. 2487, 55 Stat. 1647, 50 U.S.C.A.Appendix, note preceding section 1.
. Proc. No. 2523, 55 Stat. 1696, U.S.Code Cong.Service 1941, p. 883.
. Proc. No. 2974, 66 Stat. C31, 50 U.S.C.A.Appendix note preceding section 1.
. Proc. No. 2914, supra note 2.
. 66 Stat. 190, 8 U.S.C.A. § 1185.
. Proc. No. 3004, 67 Stat. C31, U.S.Code Cong. and Adm.News 1953, p. 915.
. Ibid.
. 22 C.F.R. § 53.1 (1949).
. Supra note 44.
. Supra note 45.
. 17 Fed.Reg. 8013 (1952), 22 C.F.R. §§ 51.135-51.143 (Supp.1952).
. Ibid.
. 22 C.F.R. § 51.142 (Supp.1955).
. Id. § 51.135, reading in full text as follows:
“Limitations on issuance of passports to persons supporting Communist movement. In order to promote the national interest by assuring that persons who support the world Communist movement of which the Communist Party is an integral unit may not, through use of United States passports, further the purposes of that movement, no passport, except one limited for direct and immediate return to the United States, shall be issued to:
“(a) Persons who are members of the Communist Party or who have recently terminated such membership under such circumstances as to warrant the conclusion — not otherwise rebutted by the evidence — that they continue to act in furtherance of the interests and under the discipline of the Communist Party;
“(b) Persons, regardless of the formal state of their affiliation with the Communist Party, who engage in activities which support the Communist movement under such circumstances as to warrant the conclusion — not otherwise rebutted by the evidence — that they have engaged in such activities as a result*572 of direction, domination, or control exercised over them by the Communist movement.
“(c) Persons, regardless of the formal state of their affiliation with the Communist Party, as to whom there is reason to believe, on the balance of all the evidence, that they are going abroad to engage in activities which will advance the Communist movement for the purpose, knowingly and wilfully of advancing that movement.”
. Ibid.
. Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952).
. E. g., Shachtman v. Dulles, supra note 37; Boudin v. Dulles, infra; Robeson v. Dulles, 98 U.S.App.D.C. 313, 235 F.2d 810 (1956), certiorari denied 352 U.S. 895, 77 S.Ct. 131, 1 L.Ed.2d 86 (1956); Dulles v. Nathan, 96 U.S.App.D.C. 190, 225 F.2d 29 (1955).
. See American Communications Ass’n v. Douds, supra.
. Sec. 6, 64 Stat. 993, 50 U.S.C.A. § 785.
. Sec. 15, 64 Stat. 1002, 50 U.S.C.A. § 794.
. 1957, 100 U.S.App.D.C. 116, 243 F.2d 222.
. 1955, 227 F.2d 708.
. Moyer v. Peabody, 212 U.S. 78, 84, 29 S.Ct. 235, 53 L.Ed. 410 (1909); Federal Communications Comm. v. WJR, 337 U.S. 265, 275, 69 S.Ct. 1097, 93 L.Ed. 1353 (1949).
. See United States v. Curtiss-Wright Corp., supra, 299 U.S. at page 320, 57 S.Ct. at page 221.
. Id., 299 U.S. at page 321, 57 S.Ct. at page 221.
. 98 U.S.App.D.C. 305, 235 F.2d 532 (1950).
. Supra vote 37.
Concurrence Opinion
(concurring in the result).
The record discloses a “tentative” refusal by the Passport Office to renew Dr. Briehl’s passport, and an official determination by that Office not to render a final decision on the matter because of Dr. Briehl’s refusal at his hearing to furnish an affidavit, as provided for in Section 51.142 of the Passport Regulations, “with respect to present or past membership in the Communist Party.” Unlike the applicant in Robeson v. Dulles, 98 U.S.App.D.C. 313, 235 F.2d 810, certiorari denied, 1956, 352 U.S. 895, 77 S.Ct. 131, 1 L.Ed.2d 86, the appellant in this case has pursued the administrative and judicial steps open to him to raise the question whether the Secretary of State may validly require such an affidavit as a condition precedent to the rendering of a final decision. That question must now be decided.
The Secretary seeks to uphold his power to elicit information as to Communist Party membership as a procedure incident to the substantive power to restrict foreign travel through passport denial. Affidavit requirements of this sort are ordinarily valid if the information elicited is relevant to the exercise of a valid power. Cf. Garner v. Board of Public Works, 1951, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317.
In the Internal Security Act of 1950, Congress made the following legislative finding, whose validity today can hardly be subject to challenge:
“Due to the nature and scope of the world Communist movement, with the existence of affiliated constituent elements working toward common objectives in various countries of the world, travel of Communist members, representatives, and agents from country to country facilitates communication and is a prerequisite for the carrying on of activities to further the purposes of the Communist movement.” 50 U.S.C.A. § 781(8).
Congress implemented that finding by Section 6 of the Internal Security Act, 50 U.S.C.A. § 785, a provision which the framers of the Act no doubt thought would come into effect at a much earlier date than in fact has proved possible. But the congressional finding remains as an admonition to the executive branch to use its authority in all lawful ways to control the “travel of Communist members, representatives, and agents” so as not to facilitate communication or otherwise “further the purposes of the Communist movement.” Therefore, I have no doubt that the Secretary has the power — in some eases at least — to deny passports on grounds to which past or present membership in the Communist Party “may prove relevant.” Garner, supra, 341 U.S. at page 720, 71 S.Ct. at page 912.
It must be admitted, I think, that the affidavit requirement does infringe Dr. Briehl’s interest in maintaining privacy and upon interests protected by the First Amendment.
For these reasons, I find no infirmity in the statutory and regulatory system which authorizes the Secretary to withhold a passport from any person who, by refusing to furnish the required affidavit, fails to complete his application.
It is important to bear in mind the distinction, which the Supreme Court pointed out in Konigsberg v. State Bar of California, 1957, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810, between the two courses of governmental action that can follow a refusal to answer a particular question propounded by a government agency. In Konigsberg, an adverse inference was drawn from a refusal to answer, and governmental action — denial of bar membership — was based in part on this inference. The Court held the inference to be unreasonable, since the refusal appeared to be based on a good faith reliance on a constitutional privilege and therefore would not necessarily give rise to the adverse inference which the State had drawn. On the other hand, in the case at bar, no adverse inference was drawn from a refusal to answer. Here the government agency asserted its right to have certain information which was relevant to the exercise of valid authority, and declared in advance that it would not proceed until the information was forthcoming. This is precisely the sort of situation which the Court in Konigsberg contrasted with the inference-drawing approach that had been used there. As to this situation, the Court indicated that a serious First Amendment question would be raised, as has been recognized in this opinion, and that there would be a question of fairness if the applicant were not warned of the consequence of failure to answer. Here the regulations plainly indicate the result of a refusal to answer.
At this stage we are concerned only with a request for identification of affiliation vel non, unaccompanied by any direct penalty stemming from such identification. “No doubt issues like those now before us cannot be completely severed from the political and emotional context out of which they emerge. For that very reason adjudication touching such matters should not go one whit beyond the immediate issues requiring decision.” American Communications Ass’n v. Douds, supra, 339 U.S. at page 416, 70 S.Ct. at page 693 (Frankfurter, J., concurring in part). The question whether past or present membership in the Communist Party is in itself sufficient to support denial of a passport is not before us: there has not here been a denial based on such membership.
. When the Supreme Court in Garner determined that the state agency may properly elicit from city employees information “that may prove relevant to their fitness and suitability for the public service,” 341 U.S. at page 720, 71 S.Ct. at page 912, it apparently assumed the proposition that the state agency had power to bar from employment those who are not fit or suitable for the public service.
. See Shachtman v. Dulles, 1955, 96 U.S. App.D.C. 287, 225 F.2d 938; Boudin v. Dulles, 1956, 98 U.S.App.D.C. 305, 235 F.2d 532; Dayton v. Dulles, 1956, 99 U.S.App.D.C. 47, 237 F.2d 43; cf. Kraus v. Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840. The highly restrictive position taken by Judge Bazelon in his learned dissent is opposed to tbe spirit if not the letter of these decisions. But it may be agreed that further congressional action in the passport field would be very desirable.
. See American Communications Ass’n v. Douds, 1950, 339 U.S. 382, 402, 70 S.Ct. 674; see also United States v. Rumely, 1953, 345 U.S. 41, 56, 73 S.Ct. 543, 97 L.Ed. 770.
. 22 U.S.C.A. § 213 requires every passport applicant to furnish under oath an application containing “a true recital of each and every matter of fact which may be required by law or by any rules
. The thrust of appellant’s argument is that the issuance of a passport is being unlawfully conditioned upon the requirement of a “test oath.” But as the Supreme Court pointed out in Garner, supra, entirely different issues are raised by a requirement that certain conduct or affiliation be denied under oath, and by a requirement that information “with respect to” a stated subject matter be given.
. See Garner, supra 341 U.S. at page 720, 71 S.Ct. at page 912: “The affidavit raises the issue whether the City of Los Angeles is constitutionally forbidden to require that its employees disclose their past or present membership in the Com
Concurrence in Part
with whom
concurs (dissenting) .
The Secretary of State says his regulations, pursuant to which he denies passports to persons who “support the Communist movement,” are a valid exercise of discretion delegated to him by the President. I think they are invalid because (1) the President did not undertake to delegate the discretion the Secretary claims and (2) the President himself did not have this discretion.
For many years the Secretary of State has claimed an unlimited discretion to deny passports.
Bauer v. Acheson, D.C.1952, 106 F.Supp. 445, was the first reported case. There the Secretary based his authority on the President’s inherent foreign relations power, and on the provision of 22 U.S.C.A. § 211a that the Secretary “may grant * * * passports * * * under such rules as the President shall designate and prescribe * * The court held there was no authority to refuse or revoke a passport without notice and hearing. Less than two months later and presumably as a result of that decision, the Secretary promulgated the regulations now before us, declaring Communist supporters ineligible for passports and es
As authority for his new regulations, the Secretary relied on 22 U.S.C.A. § 211a,
But in Stewart v. Dulles, 100 U.S.App. D.C.-, 248 F.2d 602, briefed and argued after the present case and now awaiting decision, the Secretary conceded that § 211a “confers no substantive power,” and he “assume [d]” that he “had no authority to impose this kind of direct restraint upon travel.” “It was for this very reason,” he said, “that Congress enacted what is now 8 U.S.C.A. § 1185, authorizing the President, in times of war or national emergency, to use his inherent powers in the field of passport issuance as a means of directly controlling the travel of citizens.” The argument now is that (1) 22 U.S.C.A. § 211a and the inherent executive power, though ineffective to control travel, give the Secretary discretion as to passport issuance; and (2) under 8 U.S.C.A. § 1185, upon proclamation of an emergency by the President, any person to whom the Secretary, in his discretion, refuses a passport, may not leave the country. Thus, the Secretary claims that Congress has delegated to him, through the President, the power to establish categories of persons ineligible to leave the country.
I.
The Claimed Delegation
The authority conferred on the President by 22 U.S.C.A. § 211a was exercised through Executive Order No. 7856, on March 31, 1938.
The regulations in question in the present case, which the Secretary added four years later and after the Bauer decision, were the first attempt, by regulations issued under 22 U.S.C.A. § 211a, to affect anything more than procedure or form.
Nor did the President’s Proclamation No. 3004,
Thus neither Executive Order No. 7856, which confers upon the Secretary authority received by the President under 22 U.S.C.A. § 211a, nor Proclamation No. 3004, which confers upon the Secretary authority the President holds under 8 U.S.C.A. § 1185, undertakes to delegate to the Secretary any power to create substantive passport disqualifications.
II.
The President’s Statutory Power
A. The Passport Statutes Do Not Purport to Confer the Power Here Claimed.
Section 211a of 22 U.S.C.A. says nothing about categories of ineligibility. Indeed, the Secretary concedes that the purpose of the Act of August 18, 1856,
Nor did 8 U.S.C.A. § 1185 authorize the President to create such substantive passport disqualifications as are contained in the regulations before us. Subsection (a) of § 1185 did not purport to give the President power to establish criteria for restricting anyone’s right to travel. It merely authorized him to invoke restrictions set forth in the statute if he found that “those provided otherwise than by this section” were inadequate to protect the public safety. Moreover, when the Act was first adopted in 1918 and when it was reenacted in 1941,
It is subsection (b) of § 1185 which is relevant to citizens. That subsection provided that, upon issuance of the President’s proclamation, “it shall, except as otherwise provided by the President, and subject to such limitations and exceptions as the President may authorize and prescribe, be unlawful for any citizen to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid passport.” Thus citizens were forbidden to travel without passports, but the President was authorized to establish conditions and exceptions to this prohibition. But the subsection did not authorize the President to decide which categories of citizens might receive passports.
Though neither 22 U.S.C.A. § 211a nor 8 U.S.C.A. § 1185 explicitly confers the authority the Secretary claims, he urges us to read them through a wide lens and find in them a congressional intent to authorize his regulations. His contention comes to this, that Congress has by implication, though not expressly, authorized the Executive to decide which Americans shall be confined within our boundaries. In my opinion such an intention may not be read into the statutes because (1) it would conflict with other expressions of congressional policy and (2) it would raise grave constitutional doubts.
Almost a century ago, Congress declared that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness,” and decreed that “any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.” 15 Stat. 223-224 (1868), R.S. § 1999, 8 U.S.C. § 800 (1940).
The Secretary’s construction of the statutes would impinge also upon the Internal Security Act of 1950.
I would not construe the statutes as conferring upon the Secretary by implication broad powers which they do not explicitly confer, United States v. Minker, 1956, 350 U.S. 179, 190, 76 S.Ct. 281, 100 L.Ed. 185, especially when serious restraints on liberty are entailed. Ex parte Endo, 1944, 323 U.S. 283, 299-300, 65 S.Ct. 208, 89 L.Ed. 243.
The broad construction the Secretary would have us place on the passport statutes would raise grave constitutional doubts.
We recognized in Shachtman that the individual’s right to travel is a natural right protected by the Constitution.
The word “Communist” is not an incantation subverting at a stroke our Constitution and all our cherished liberties. If today the threat of Communism justifies confining within our boundaries any citizen who will not swear that he is not a Communist,
The due process problem is not avoided by reliance upon Galvan v. Press, 1954, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; nor the First Amendment problem by reliance upon American Communications Ass’n v. Douds, 1950, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925.
In holding in Galvan that Congress could constitutionally provide for deportation of an alien who becomes a Communist after entry, the Supreme Court said: “The power of Congress over the admission of aliens and their right to remain is necessarily very broad, touching as it does basic aspects of national sovereignty, more particularly our foreign relations and the national security.”
So far as the First Amendment problem is concerned, whether we apply the “clear and present danger test,”
In Douds the Court upheld the constitutionality of § 9(h) of the National Labor Relations Act, 29 U.S.C.A. § 159 (h), withdrawing N.L.R.B. privileges from unions whose officers fail to submit non-Communist affidavits. The Court found that, since unions are clothed by Federal law with great powers for good or evil, “the public interest in the good faith exercise of that power is very great.” 339 U.S. at pages 401-402, 70 S.Ct. at page 686. It observed that (1) “Section 9(h) touches only a relative handful of persons, leaving the great majority of persons of the identified affiliations and beliefs completely free from restraint,” id. 339 U.S. at page 404, 70 S.Ct. at page 687; (2) there is no constitutional right to occupy the position of a labor leader in the sense that “the loss of [the] particular position [would be] the loss of life or liberty,” id. 339 U.S. at page 409, 70 S.Ct. at page 689; (3) § 9(h) imposes no direct restraint on freedom of belief or association, since its “discouragements” operate “only against the combination of [particular] affiliations or beliefs with occupancy of a position of great power over the economy of the country,” id. 339 U.S. at pages 403-404, 70 S.Ct. at page 686 ;
Whether travel by Communists is a danger on a par with their occupancy of powerful union offices is at least questionable. Prevention of travel does not prevent communication. Conspirators could still use the mails, cables, telephones, radio and, not least, foreign embassies and consulates in the United States. The discomfiture of a few individuals who would have to send messages rather than make speeches
If the design of the passport statutes, in depriving an individual of the right to travel, is to prevent him from making statements abroad critical of or embarrassing to our policies, or offensive to our political taste, they are the very type of legislation the First Amendment forbids. Thomas v. Collins, 1945, 323 U.S. 516, 65 S.Ct. 315; Near v. Minnesota, 1931, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357.
Another alleged reason for abrogating the constitutional right to travel is that the American abroad may not only talk, but may also act in ways that conflict with our policies and interests and tend to cause international incidents. The Secretary of State embodies that reason in § 51.136 of his regulations,
During a recent visit to the United States by a foreign chief of state at the invitation of the President, an American mayor declared that the guest was unwelcome in his city. That announcement could hardly have been more prejudicial to our foreign relations if the mayor had been abroad when he made it. Yet no one has suggested that he could constitutionally have been prevented from making his announcement. At home our citizens are as free to do lawful acts as they are to speak their minds. The expectation that they may do things abroad which violate no laws is, I think, an insufficient basis for abrogating their right to leave the country.
If it is the fear of illegal conduct which purportedly justifies travel restriction, a factor which may tip the constitutional scale is “the availability of more moderate controls than those which the state has imposed.” Mr. Justice Frankfurter, concurring in Dennis v. United States, 1951, 341 U.S. 494, 542, 71 S.Ct. 857, 95 L.Ed. 1137, quoting Freund, On Understanding the Supreme Court. There are penal sanctions against the commission or the attempt or conspiracy to commit espionage, sabotage, treason, sedition and subversion.
That the purported need to confine citizens to the country is claimed to spring from emergency conditions does not dispense with their constitutional rights.
“The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.”
The constitutional questions I have discussed are, in my view, not before us for decision. I mention them, as the Supreme Court said in Ex parte Endo, 1944, 323 U.S. 283, 299-300, 65 S.Ct. 208, 217, 89 L.Ed. 243, “* * * not to stir the constitutional issues which have been argued at the bar but to indicate the approach which [I] think should be made to an Act of Congress or an order of the Chief Executive that touches the sensitive area of right specifically guaranteed by the Constitution. * * * We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used.”
III.
The President’s Inherent Power
The Secretary of State has always treated it as a matter within his own discretion whether he would give a travelling citizen a document surrounding him with the aura of this Government’s protection and commending him to other governments. In Shachtman we noted the authorities “which have recognized a great breadth of Executive authority and discretion” in this regard.
Numerous cases both before and after Curtiss-Wright support the proposition that the President has broad powers in the field of foreign relations. But there is a great gulf between the powers involved in those cases and the power the Secretary claims here. Those cases all relate in some direct fashion to the Executive’s traditional power to do things which depend upon negotiations with foreign sovereignties or which bear directly upon our relations with foreign governments. What the Court upheld in Curtiss-Wright was the President’s “power to negotiate with foreign governments.”
The Secretary finds authority to abridge the right to travel in what Curtiss-Wright recognized as an inherent executive power to deal with “a situation entirely external to the United States, and falling within the category of foreign affairs * * *.” 299 U.S. at page 315, 57 S.Ct. at page 218. Extending to internal affairs the President’s inherent power over external affairs has dangerous implications.
In our complex world there are very few purely internal affairs. Foreign problems cast their shadows on the domestic scene and internal events influence foreign policy. The Department of State has declared that “There is no longer any real distinction between ‘domestic’ and ‘foreign’ affairs.
But the Supreme Court has confined the inherent foreign affairs power within accountable limits.
The British Crown had a prerogative to confine subjects to the realm by writs ne exeat regno,
The manner in which British kings employed ne exeat was in some ways strikingly similar to our State Department’s present policies and practices. The writ first used “to hinder the clergy from going to Rome * * *, was afterward extended to laymen machinating and concerting measures against the state * *
The power to confine subjects to the realm, though it had fallen into disuse,
Blackstone divided the prerogatives of the Crown into two general categories: those relating to “intercourse with foreign nations”; and those relating to “domestic government and civil polity.” 1 Commentaries (Wendell’s ed. 1854) 252. It is the first branch of the royal prerogative to which Curtiss-Wright refers and upon which the Secretary here relies.
“With regard to foreign concerns,” says Blackstone, “the king is the delegate or representative of his people. * * * In the king, therefore, as in a center, all the rays of his people are united * * *.”
The foreign affairs prerogative did not include the power to confine subjects to the realm. This was part of the domestic prerogative having to do with military affairs. Id. at 265. Blackstone says, id. at 262:
“The king is considered * * * as the generalissimo, or the first in the military command, within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community; and the principal use of government is to direct that*594 united strength in the best and most effectual manner, to answer the end proposed. Monarchial government is allowed to be the fittest of any for this purpose; it follows, therefore, from the very end of its institution, that in a monarchy the military power must be trusted in the hands of the prince.”
And, “because that every man ought of right to defend the king and his realm, therefore the king, at his pleasure, may command him by his writ that he go not beyond the seas, or out of the realm, without license * * Id. at 265.
Since the king’s ne exeat power was part of his domestic military prerogative, rather than his foreign affairs prerogative, Curtiss-Wright lends no support to a theory that the power devolved upon our President.
It is plain that our Constitution, with respect to things military, conveyed to Congress most of the powers which were the king’s prerogative,
The notion that the President possesses inherent military power to deal with internal affairs involving private rights was disposed of in Youngstown Sheet & Tube Co. v. Sawyer, 1952, 343 U.S. 579, 72 S.Ct. 863. The Court ruled that it could not “with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production.” Id. 343 U.S. at page 587, 72 S.Ct. at page 867. Mr. Justice Douglas concurring, declared that “our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs.” Id. 343 U.S. at page 632, 72 S.Ct. at page 888, Mr. Justice Jackson added: “That military powers of the Commander in Chief were not to supersede representa
At the time of Youngstown our Armed Forces were engaged in active combat in Korea. The record before the Court contained a number of affidavits by high Government officials, typical of which was that of the Secretary of Defense, which stated:
“ * * * any curtailment in the production of steel even for a short period of time will have serious effects on the programs of the Department of Defense which are essential to national security. A work stoppage in the steel industry will result immediately in serious curtailment of production of essential weapons and munitions of all kinds; if permitted to continue it would weaken the defense effort in all critical areas and would imperil the safety of our fighting men and that of the nation.”
Chief Justice Vinson, dissenting, thought “the uncontroverted affidavits in this record amply support the [President’s] finding that ‘a work stoppage would immediately jeopardize and imperil our national defense.’ ” Id. 343 U.S. at page 679, 72 S.Ct. at page 935. He also cited our numerous international undertakings — United Nations, Korea, Truman Plan, Marshall Plan, North Atlantic Treaty Organization and Mutual Security — all of which might be imperilled if the President’s seizure were not upheld. Id. 343 U.S. at pages 668-672, 72 S.Ct. 929-931. He found support for the seizure not only in the President’s military power and in his foreign relations power, id. 343 U.S. at pages 679, 681, 72 S.Ct. 934, 935, but also in the fact that the emergency required emergency action. Id. 343 U.S. at pages 668, 708-710, 72 S.Ct. 948-949. The Court, however, repudiated these views. It held that the seizure of steel mills involved in labor strife was within Congress’ “exclusive constitutional authority * * * in both good and bad times.” Id. 343 U.S. at pages 588-589, 72 S.Ct. 867.
The military power has in the past been argued to be broad enough to subject to court-martial civilians who obstruct the successful prosecution of hostilities.
Conclusion
My conclusions are that (1) the President has not delegated to the Secretary of State the power to decide which Americans may travel and which may not; (2) neither of the two statutes relied on by the Secretary as a source of such power — 22 U.S.C.A. § 211a and 8 U.S.C.A. § 1185 — grants the power, in terms, either to the President or to the Secretary; (3) a construction of either or both of the statutes as granting the power would conflict with other expressions of congressional policy and would raise constitutional doubts of the utmost gravity, especially to the extent that eligibility is made to depend upon matters of political belief and association; (4) since the power was not conferred by statute, the President does not possess it, for it is not one of the powers inherent in his office.
The broad power to curtail the movements of citizens of the United States, to the extent that our Government possesses it, is vested in Congress, not in the President. Travel is being controlled today for purposes of internal security. To call it a matter of foreign relations is mere pretense. Whether our internal security requires the drastic measure of restricting travel and, if so, to what extent and by what criteria and procedures is for Congress to decide. If and when Congress acts, there will presumably be hearings, reports and debates which may serve to limit what Congress elects to do and may help to interpret what it does. The constitutionality of any such measure will, of course, depend on its provisions and the circumstances in which it is enacted.
The question before us is whether the Secretary of State has power to establish such substantive criteria for travel as are here involved. We need not decide and I do not say that there are no circumstances under which the Secretary may restrain a citizen’s travel. Whether he may deny a passport to prevent a flight from justice
. See 3 Hackworth, Digest of International Law § 268 (1942).
. Shachtman v. Dulles, 1955, 96 U.S.App.D.C. 287, 289-290, 225 F.2d 938, 940-941.
. Actually the first requirement of a passport for travel was during World War I. Act of May 22, 1918, 40 Stat. 559, 22 U.S.C.A. §§ 223-226b, Proclamation No. 1473, Aug. 8, 1918, 40 Stat. 1829. These controls expired March 3, 1921. Pub.Res. No. 64, 41 Stat. 1359. By Act of June 21, 1941, 55 Stat. 252, 22 U.S.C.A. § 223, Congress amended the 1918 Act to apply during a proclaimed emergency and, on November 14, 1941, the President issued Proclamation No. 2523, 55 Stat. 1696, U.S.Code Cong.Service 1941, p. 883, restoring travel controls which have remained in effect since then. The 1941 statute was replaced by § 215 of the Immigration and Nationality Act of 1952, 66 Stat. 190, 8 U.S.C.A. § 1185, and on January 17, 1953, the revised statutory authority was invoked by Proclamation No. 3004, 67 Stat. 031, U.S. Code Cong. and Adm.News 1953, p. 915.
In addition to being legally required as an exit permit, a passport has become a practical necessity because foreign countries have increasingly been requiring it as a condition to entry. See Shachtman v. Dulles, 96 U.S.App.D.C. at page 290, 225 F.2d at page 941; Bauer v. Acheson, D.C., 1952, 106 F.Supp. 445, 451; Comment, 61 Yale L.J., infra note 28, at pages 171-172.
. See, for example, Bauer v. Acheson, supra note 3; Dulles v. Nathan, 1955, 96 U.S.App.D.C. 190, 225 F.2d 29; Shaehtman v. Dulles, supra note 2; Boudin v. Dulles, 1956, 98 U.S.App.D.C. 305, 235 F.2d 532; Robeson v. Dulles, 1956, 98 U.S.App.D.C. 313, 235 F.2d 810, certiorari denied, 1956, 352 U.S. 895, 77 S.Ct. 131, 1 L.Ed.2d 86; Dayton v. Dulles, 1956, 99 U.S.App.D.C. 47, 237 F.2d 43.
. 17 Fed.Reg. 8013, Sept. 4, 1952, 22 C.F.R. §§ 51.135-51.143 (1957 Supp.).
. Section 6 of the Internal Security Act of 1950, 64 Stat. 993, 50 U.S.C.A. § 785, which makes it a crime for a “member of [a Communist] organization” to apply for or use a passport, is inoperative until such an organization has registered or been finally ordered to do so. Neither of these events has occurred. Communist Party v. Subversive Activities Control Board, 1956, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003, reversing, 1954, 96 U.S.App.D.C. 66, 223 F.2d 531.
. The Act of May 30, 1866, 14 Stat. 54, disqualified noncitizens. By Act of June 14, 1902, 32 Stat. 386, the law was amended to disqualify persons not owing allegiance to the United States, “whether citizens or not.” The amendment was designed to cover citizens of Puerto Rico, Hawaii, and the Philippines. 35 Cong. Rec. 5697-99, 6588-89, 57th Cong., 1st Sess. (1902). The statute is now codified as 22 U.S.C.A. § 212. For convenience, the class of eligibles will be referred to herein as “citizens.”
. 22 C.F.R. p. 98 (1957 Supp.); 17 Fed.Reg. 8013.
. See also the Secretary’s brief in Boudin v. Dulles, supra note 4, at p. 16.
. Supra note 3.
. 3 Fed.Reg. 799, 22 C.F.R. §§ 51.1-51.77 (1949).
. 22 C.F.R. §§ 53.101-51.134 (1949); and see source note at p. 103. “A study of the executive order and the departmental order indicates that the chief element in the discretion exercised by the Secretary of State concerned the type of proof required to establish citizenship or allegiance.” Note, 41 Geo.L.J., infra note 28, at 76.
. See Department of State, The American Passport, ch. IV (1898); Exec.Order No. 654, June 13, 1907; Exec.Order No. 4359-A, Dec. 19, 1925; Exec.Order No. 4382-A, Feb. 12, 1926; Exec.Order No. 4488, Aug. 3, 1926; Exec.Order No. 5860, June 22, 1932; Exec.Order No. 6650, March 23, 1934.
. Supra note 3.
. The regulations involved in this case, which were also in existence when the proclamation was issued, were not referred to directly or indirectly.
. 11 Stat. 60; reenacted in substantially the same form by the Act of July 3, 1926, c. 772, § 1, 44 Stat. 887. The language of the original act was “shall be authorized to grant” rather than “may grant,” but the effect is the same.
. Comment, 23 U.Chi.L.Rev., infra note 28, at 272 n. 25; Doman, A Comparative Analysis: Do Citizens Have the Right to Travel, 43 A.B.A.J. 307, 308 (1957).
. The original 1856 Act, 11 Stat. 60, combined the present § 211a with the present § 212 which disqualifies non-citizens.
. Supra note 13.
. Supra note 3.
. This act, though no longer included in the United States Code, has not been repealed and is still in effect. Savorgnan v. United States, 1950, 338 U.S. 491, 498-499, 70 S.Ct. 292.
. See also op. cit. supra note 1, p. 163.
. 8 U.S.C.A. §§ 1481 and 1483; Savorgnan v. United States, 338 U.S. at page 503, 70 S.Ct. at page 298.
. Supra note 6.
. Ibid.
. In the last session of Congress, legislation was introduced by Representative Walter, which would have amended the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. to provide for a passport review procedure and would have denied passports to persons under Communist discipline in much the fashion now employed by the State Department. The bill died in committee. H.R. 9991, 102 Cong.Rec. 4266, 84th Cong., 2d Sess., March 15, 1956.
. See Note, 41 Geo.L.J., infra note 28, at page 89.
. Comment, The Passport Puzzle, 23 U. Chi.L.Rev. 260 (1956); Note, Passports and Freedom of Travel: The Conflict of a Right and a Privilege, 41 Geo.L.J. 63, 88 (1952); Note, “Passport Denied”: State Department Practice and Due Process, 3 Stan.L.Rev. 312 (1951); Parker, The Right to Go Abroad: To Have and to Hold a Passport, 40 Va.L.Rev. 853, 870 (1954); Passport Refusals for Political Reasons: Constitutional Issues and Judicial Review, 61 Tale L.J. 171 (1952).
. 96 U.S.App.D.C. at page 290, 225 F.2d at page 941. See also Williams v. Fears, 1900, 179 U.S. 270, 274, 21 S.Ct. 128, 130, 45 L.Ed. 186, referring to “freedom of egress from the state.”
. Dayton v. Dulles, supra note 4; Boudin v. Dulles, supra note 4; Bauer v. Acheson, supra note 3; see also Dulles v. Nathan, supra note 4, remanding Nathan v. Dulles, D.C.1955, 129 F.Supp. 951, for vacation of judgment and dismissal of complaint on ground of mootness.
. Shachtman v. Dulles, supra note 2; see Kraus v. Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840.
. In saying in the Communist Party case “that the Government may validly decline” a passport to a Communist, this court was referring to the passport in its aspect as a documentary assurance of “the protection and good offices of American diplomatic and consular officers abroad,” 1954, 96 U.S.App.D.C. 66, 90, 223 F.2d 531, 555, and not as an exit permit indispensable to travel. As for the latter aspect of a passport, i. e., whether a restriction upon liberty to travel is constitutional, the court said, “ * * * we need not, and do not, enter upon consideration of that question * * *.” 96 U.S.App.D.C. at page 91, 223 F.2d at page 556. Later in Shachtman, the court did consider that question and concluded, as we have already seen, that there is a constitutionally protected right, supra note 29; but how much protection springs from the First Amendment has not been determined.
. Mr. Justice Cardozo dissenting in Panama Refining Co. v. Ryan, 1935, 293 U.S. 388, 440, 55 S.Ct. 241, 256, 79 L.Ed. 446. The Secretary argues that standardless delegation is not invalid in a field where the Executive possesses inherent power, citing United States v. Curtiss-Wright Export Corp., 1936, 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255. As I shall show, however, the delegation problem cannot thus be avoided, for the authority here claimed is not encompassed within the President’s inherent power in the field of foreign relations.
. The majority finds “nothing new or novel about requiring an applicant for a permit or a license to supply pertinent information under oath.” [248 F.2d 574] But the analogy sought to be established founders upon the hard fact that the passport applicant does not seek a permit or a license — he seeks to
. 347 U.S. at page 530, 74 S.Ct. at page 742.
. See discussion at note 90 infra and related text.
. Thomas v. Collins, 1945, 323 U.S. 516, 532, 65 S.Ct. 315, 323, 89 L.Ed. 430.
. Dennis v. United States, 1951, 341 U.S. 494, 510, 71 S.Ct. 857, 95 L.Ed. 1137, adopting the statement of Chief Judge Hand below, United States v. Dennis, 2 Cir., 1950, 183 F.2d 201, 212.
. See also the concurring opinion of Mr. Justice Jackson.
. That some unions have remained powerful and effective without the privileges of the Labor Relations Act is common knowledge.
. One of the individuals who has sought in vain for many years to go abroad was recently reported to have sent a “cordial message of greetings” to the Soviet Union which was published in the Communist Party newspaper Pravda, and broadcast by the Moscow radio. N.Y. Times, Jan. 2, 1957, p. 16, col. 6. “Spies and traitors do not usually travel abroad. Rather, they remain inconspicuously at home, as recent unfortunate cases have amply demonstrated.” Parker, op. cit. supra note 28 at 873.
. Wyzanski, Freedom to Travel, The Atlantic Monthly, Oct. 1952, 66, 68.
. Ibid.
. See also Communist Party v. Subversive Activities Control Board, supra note 32.
. “Limitations on issuance of passports to certain other persons. In order to promote and safeguard the interests of the United States, passport facilities, except for direct and immediate return to the United States, will be refused to a person when it appears to the satisfaction of the Secretary of State that the person’s activities abroad would: (a) violate the laws of the United States; (b) be prejudicial to the orderly conduct of foreign relations; or (c) otherwise be prejudicial to the interests of the United States.” 22 C.F.R. § 51.136 (Supp. 1957).
. 18 U.S.C. §§ 371, 791-97, 2151-56, 2381-90.
. 50 U.S.C.A. § 783.
. Id., § 843.
. 18 U.S.C. § 951.
. Id., § 953.
. It has been observed that, since the common law attributes to personal liberty, according to Blackstone, “the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclinations may direct,” “the distinction between restriction to a jail, to a city, to a state, or to a nation is merely one of degree.” Comment, 61 Yale L.J. supra note 28, at 190; see also Doman, op. cit. supra note 17 at 310.
Constitutional safeguards are “especially necessary where the occasion of detention is fear of future misconduct, rather than crimes committed.” Mr. Justice Jackson, dissenting in Shaughnessy v. U. S. ex rel. Mezei, 1953, 345 U.S. 206, 225, 73 S.Ct. 625, 97 L.Ed. 956. In other legal systems, as Mr. Justice Jackson points out, other considerations may govern. He cites the testimony of Hermann Goring at the Nuremburg trials:
“ * * * those who had committed some act of treason against the new state, or those who might be proved to have committed such an act, were naturally turned over to the courts. The others, however, of whom one might expect such acts, but who had not yet committed them, were taken into protective custody, and these were the people who were taken to concentration camps. * * * Likewise, if for political reasons * * * someone was taken into*588 protective custody, that is, purely for reasons of state, this could not be reviewed or stopped by any court.” Id. 345 U.S. at pages 225-226, n. 8, 73 S.Ct. at page 636.
. Id., § 1073.
. The Emergency Detention Act of 1950 i(Title II of the Internal Security Act), ;to deal with “fifth column” problems, authorizes the President, in time of invasion, declared state of war or insurrection in aid of a foreign enemy, to proclaim an “Internal Security Emergency” and to apprehend and detain persons as to whom there is reasonable ground to believe that they “probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage.” 50 U.S.C.A. §§ 812, 813, 64 Stat. 1021 (1950). The original bill, S. 4130, 81st Cong., 2d Sess. (1950), had contained provisions authorizing detention during such “cold war” emergencies as an “imminent invasion” or a eongressionally declared emergency, but these provisions were eliminated because of doubtful constitutionality. Note, The Internal Security Act of 1950, 51 Col.L.Rev. 606, 651 (1951).
. 96 U.S.App.D.C. at page 289, 225 F.2d at page 940.
. 96 U.S.App.D.C. at page 290, 225 F.2d at page 941.
. Mr. Justice Clark concurring in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at page 661 n. 3, 72 S.Ct. at page 883. See the authorities collected in Z & F Assets Realization Corp. v. Hull, 1940, 72 App.D.C. 234, 114 F.2d 464.
. 48 Stat. 811 (1934).
. United States v. Palmer, 1818, 3 Wheat. 610, 633-634, 4 L.Ed. 471; Jones v. United States, 1890, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691; Oetjen v. Central Leather Co., 1918, 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726; United States v. Belmont, 1937, 301 U.S. 324, 330, 57 S.Ct. 758, 81 L.Ed. 1134; United States v. Pink, 1942, 315 U.S. 203, 229, 62 S.Ct. 552, 86 L.Ed. 796; Latvian State Cargo & Passenger S.S. Co. v. McGrath, 88 U.S. App.D.C. 226, 188 F.2d 1000, certiorari denied, 1951, 342 U.S. 816, 72 S.Ct. 30, 96 L.Ed. 617.
. Ware v. Hylton, 1796, 3 Dall. 199, 260, 1 L.Ed. 568; Doe ex dem. Clark v. Braden, 1853, 16 How. 635, 657, 14 L.Ed. 1090; Terlinden v. Ames, 1902, 184 U.S. 270, 22 S.Ct. 484, 46 L.Ed. 534; Ivancevic v. Artukovic, 9 Cir., 1954, 211 F.2d 565, 573.
. Foster v. Neilson, 1829, 2 Pet. 253, 307-309, 7 L.Ed. 415; Williams v. Suffolk Ins. Co., 1839, 13 Pet. 415, 10 L.Ed. 226; In re Cooper, 1892, 143 U.S. 472, 12 S.Ct. 453, 36 L.Ed. 232; The Kodiak, D.C.Alaska 1892, 53 F. 126.
. Wilson v. Shaw, 1907, 204 U.S. 24, 27 S.Ct. 233, 51 L.Ed. 351; Mr. Justice Frankfurter, dissenting in United States v. California, 1947, 332 U.S. 19, 45, 67 S.Ct. 1658, 91 L.Ed. 1889.
. United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317.
. Carlson v. Landon, 1952, 342 U.S. 524, 534, 72 S.Ct. 525, 96 L.Ed. 547; Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 587-590, 72 S.Ct. 512, 96 L.Ed. 586.
. United States v. Von Clemm, 2 Cir., 1943, 136 F.2d 968, 970.
. Mr. Justice Douglas, concurring in Koki Hirota v. McArthur, 1949, 338 U.S. 197, 208, 69 S.Ct. 1238, 93 L.Ed. 1902.
. Chicago & Southern Air Lines v. Waterman Steamship Corp., 1948, 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568.
. Z & IP Assets Realization Corp. v. Hull, 1940, 72 App.D.C. 234, 114 F.2d 464, 466, affirmed, 1941, 311 U.S. 740, 61 S.Ct. 351, 85 L.Ed. 288.
. Comment, 61 Yale L.J. at 187. The Chicago & Southern Air Lines case, supra note 66, is not an exception. The Court there held that the President’s selection of one applicant over another for an international air route was not to be interfered with, because “both as Commander-in-Chief and as the Nation’s organ for foreign affairs, [he] has available intelligence services whose reports are not and ought not to be published to the world.” 333 U.S. at page 111, 68 S.Ct. at page 436. “The Court evidently was assuming that any secret information the President may have relied upon was in the nature of legislative facts and not adjudicative facts — that the information pertained to international relations and not to qualifications of the particular applicants. * * * Thus an applicant for a license is entitled to a trial type of hearing on issues of fact concerning his qualifications but not necessarily on issues of fact concerning need for the service or conditions in the territory to be served.” Davis, The Requirement of a Trial-Type Hearing, 70 Harv.L.Rev. 193 at pages 264, 275 (1956).
. That the executive power with respect to passports is not of this conclusive character was settled in Perkins v. Elg, 1939, 307 U.S. 325, 349-350, 59 S.Ct. 884, 83 L.Ed. 1320.
. See also the Chicago & Southern Air Lines case, supra note 66, 333 U.S. at page 111, 68 S.Ct. 431.
. “The validity of restrictions on the freedom of movement of particular individuals, both substantively and procedurally, is precisely the sort of matter that is the peculiar domain of the courts.” Comment, 61 Yale L.J. at page 187. The Secretary’s position that “the issuance and denial of passports is within the field of conducting foreign policy” has been described by one commentator as “[a] strange, and to this writer’s knowledge, unique position among the countries with democratic and constitutional background.” Doman, op. cit. supra note 17, at page 309.
. Madison wrote to Jefferson in 1798:
“The management of foreign relations appears to be the most susceptible of abuse of all the trusts committed to a Government, because they can be concealed or disclosed, or disclosed in such parts and at such times as will best suit particular views; and because the body of the people are less capable of judging and are more under the influence of prejudices, on that branch of their affairs, than of any other. Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.” Padover, The Complete Madison (1953) 257-58.
Mr. Justice Jackson, concurring in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at page 642, 72 S.Ct. at page 873, declared:
“ * * * no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is*591 unknown, can vastly enlarge Ms mastery over the internal affairs of the country by Ms own commitment of the Nation’s armed forces to some foreign venture.”
. Patterson, In re the United States v. The Curtiss-Wright Corporation, 22 Texas L.Rev. 286 (1944).
. Goebel, Constitutional History and Constitutional Law, 38 Col.L.Rev. 555, 571-72 (1938). In token that Ms fears are not fanciful, Professor Goebel cites Den. ex dem. Murray v. Hoboken Land & Improvement Co., 1855, 18 How. 272, 276-277, 15 L.Ed. 372, where Mr. Justice Curtis, in upholding the right of the Solicitor of the Treasury Department to proceed by distraint, without judicial process, against the property of a defalcating customs collector, reasoned that the taking was not without due process of law because at common law the Exchequer could use the writ of extendi facias to seize the “goods of the King’s debtor * * * without requiring any previous inquisition * *
. 1 Willoughby, The Constitution of the United States 92 (2d ed. 1929); see also Leviton, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s Theory, 55 Yale L.J. 467, 493 (1946). See the concurring opinion of Mr. Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at page 641, 72 S.Ct. at page 873, replying to the Government’s argument that the vesting of “The Executive Power” in the President is a grant of all possible executive power: “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their now Executive in his image.” One of the evils denounced in the Declaration may have been the King’s attempt to prevent emigration to the colonies. Note, 41 Geo. L.J., supra note 28, at 70. Even in the earliest colonial period, Charles I, in the exercise of the royal prerogative to confine the subject to the realm, issued a proclamation against taking passage to America, because some who were going were “ ‘idle and refractory persons’ who wished to live out of reach of authority.” 10 Holdsworth, History of English Law 390 (1938).
. Our Foreign Policy, Department of State Publication 8972, General Foreign Policy Series 26, Sept. 1950, p. 4.
. Supra notes 58-67. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at page 587, 72 S.Ct. at page 867, the Court said, dealing with the analogous question of the extent of the President’s military power: “Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities,” See also text at notes 95-97, infra.
. A specific royal prerogative, in its devolution upon our national government, may be divided between tbe executive and legislative branches. See, e. g., 1863, 10 Ops. Att’y Gen. 452.
. See Note, 41 Geo.L.J. at 64-70.
. From the struggles of Henry II with Thomas & Becket emerged, in 1164, the fourth article of the Constitutions of Clarendon prohibiting ecclesiastics from . leaving the realm without the king’s permission.
. John’s struggle with the barons culminated, in 1215, in Magna Carta which provided in c. 42:
“It shall be lawful in future for anyone (excepting always those imprisoned or outlawed in accordance with the law of the kingdom, and natives of any country at war with us, and merchants, who shall be treated as [otherwise] provided) to leave our kingdom and to return, safe and secure by land and water, except for a short period in time of war, on grounds of public policy — reserving always the allegiance- due to us.”
This provision did not survive John. It was omitted from the confirmation of the Charter in 1217 and the definitive proclamation by Henry III in 1225 which is the Charter’s present statutory form. Supra note 79 at 67-68; Goebel, op. cit. supra note 74, at 573-74 n. 51.
. Largely affecting children sought to be sent abroad for Catholic education. Supra note 79, at 69.
. Goebel, op. cit. supra note 74, at 573-74 n. 51; 10 Holdsworth, op. cit. supra note 75, at 391-92.
. 1 Blackstone, Commentaries (Wendell’s ed. 1854) 266 n. 22.
. Id. at 265-66.
. Ordinances, No. 89, quoted in Beames, Ne Exeat Regno (1st Amer. ed., 1821) 17. In form, the writ commanded the subject “that he go not beyond the seas or out of the realm without a license” upon the stated ground that “we are given to understand that you design to go privately into foreign parts and intend to prosecute there many things prejudicial to us * * Provision was made whereby the subject could apply to Chancery for a license. Parker, op. cit. supra note 28, at 867.
. The writ ne exeat has continued to be employed only as a private equitable remedy to prevent flight of creditors. Supra note 85; Parker, op. cit. supra note 28 at 867-68. In its aspect as a private equitable remedy, it was imported into our law. 1 Stat. 334 (1793) ; Judicial Code § 261, 36 Stat. 1162 (1911), 28 U.S.C. § 376 (1940); now covered by Rule 64, Fed.R.Civ.P.,
. Rutland, The Birth of the Bill of Rights 11 (1955). “Blaekstone’s Commentaries are accepted as the most satisfactory exposition of the common law of England. At the time of the Federal Constitution it had been published about twenty years, and it has been said that more copies of the work had been sold in this country than in England, so that undoubtedly the framers of the Constitution were familiar with it.” Schick v. United States, 1904, 195 U.S. 65, 69, 24 S.Ct. 826, 827, 49 L.Ed. 99. Professor Crosskey refers to the Commentaries as “that great ‘best-seller’ of the eighteenth century” and points out that some of the members of the Constitutional Convention were on the subscription list of the original American edition in 1772. Politics and the Constitution, Yol. 1, p. 411, and Vol. 2, p. 1326, n. 3 (1953).
. Cf. John Marshall, in an address to the House of Representatives in 1800: “The President is the solo organ of the nation in its external relations, and its sole representative with foreign nations.” 10 Annals of Congress, 6th Cong., 1st Sess., col. 613 (1800).
. The “passports” referred to in this part of the prerogative are merely “safe conducts” which were issued to visiting strangers “under the king’s sign-manual,” rather than by one of “his embassadors abroad.” Id at 259. This part of the foreign affairs prerogative has been carried over to our Government. See United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317: “The exclusion of aliens is a fundamental act of sovereignty * * * [which] stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” See also Carlson v. Landon, 1952, 342 U.S. 524, 534, 72 S.Ct. 525, 96 L.Ed. 547; Harisiades v. Shaughnessy, 3952, 342 U.S. 580, 587-589, 72 S.Ct. 512, 96 L.Ed. 586; and Galvan v. Press, 1954, 347 U.S. 522, 530, 74 S.Ct. 737, 98 L.Ed. 911. The majority’s reliance upon Galvan to support a power to control the movements of citizens is thus misplaced. See text at note 36 supra.
So far as the rest of the royal prerogative over foreign affairs is concerned, the power to make war and to issue letters of marque and reprisal were confined by our Constitution to the legislative branch, and the sending of ambassadors to and making of treaties with other nations were given to the President, but with a role preserved for the Senate.
. E. g., “to raise and support Armies,” “to provide and maintain a Navy,” “to make Rules for the Government and Regulation of the land and naval Forces,” the various militia powers, and the authority to legislate with respect to places “for the Erection of Forts, Magazines, Arsenals, Dock-Yards and other needful Buildings.” Constitution, Art. I, § 8.
. Professor Crosskey points out that St. George Tucker, a Jeffersonian, in his 1803 edition of Blackstone, noted that “the student c[ould] not fail to have remarked how many of the most important prerogatives of the British Crown [had been] transferred from the executive OMthority, in the United States, to the supreme national council in Congress." Op. cit. supra note 88 at 415. Orosskey concludes as to the military prerogative: “So, in this whole field in which the powers of the King were so very great- — the field of authority from which, if , from any, the Convention may have feared a future American monarchy might conceivably arise — the ‘supremacy’ of Congress was most carefully and amply provided: apart from the bare ‘command’ in actual action and administration, all the foregoing authorities of the English King, as ‘generalissimo,’ were specifically transferred to Congress or subjected, in the plainest terms, to Senatorial or Congressional control.” Id. at 427.
. A cognate of the writ ne exeat is the writ available to the king to recall a subject to the realm from abroad. Supra note 84 at 266. To the extent that this prerogative power passed to our Government, it is lodged not in the President but in Congress. See Blackmer v. United States, 1932, 284 U.S. 421, 437-438, 52 S.Ct. 252, 76 L.Ed. 375.
. The executive absolutism implicit in the royal prerogative has its counterpart in modern systems of government which, though formally representative, differ from ours in basic philosophy. Thus, under the Venezuelan theory of “cesarismo democrático,” the president is “democracy personified, the nation made man” and his “influence and power * * extend to all levels of government. * * ” Lott, Executive Power in Venezuela, 50 The American Political Science Review 422, 425, 440 (1956).
. Winthrop, Military Law and Precedents (2d ed. 1920) 103.
. Morgan, Court Martial Jurisdiction Over Non-Military Persons Under the Articles of War, 4 Minn.L.Rev. 79, 106 (1920).
. Rankin, When the Civil Law Fails (1939) 138-39.
. Cf. 18 U.S.C. § 1073.
. Act of June 24, 1948, 62 Stat. 604, 50 U.S.C.A.Appendix, § 451 et seq.
Dissenting Opinion
(dissenting).
We have temporized too long with the passport practices of the State Department. Iron curtains have no place in a free world. I think the Secretary should be directed to issue a passport.
“Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through-the territory of any State is a right secured by * * * the Constitution.” Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.Ed. 186. We have held that the right to leave the country is an attribute of personal liberty and that restrictions on it “must conform with the provision of the Fifth Amendment that ‘No person shall be * * * deprived of * * * liberty * * * without due process of law’.” Shachtman v. Dulles, 96 U.S.App.D.C. 287, 290, 225 F.2d 938, 941.
But we need not and therefore should not
The Secretary proposes to continue restricting the personal liberty of a citizen because statements by informants whom the Secretary does not identify have led him to think that if the citizen goes abroad he -will do something, the nature of which the Secretary does not suggest, which the Secretary thinks, for reasons known only to him, will be contrary to what, for reasons known only to him, lie conceives to be “the national interest”. If Congress or the President had undertaken to authorize this, serious constitutional questions would arise. May the government deprive a citizen of his constitutional liberty to go abroad (1) without a jury trial, (2) without a definite standard of guilt, (3) without sworn testimony, and (4) without an opportunity to confront his accusers or know their identity? May it deprive him of this liberty because of the way he has exercised his First Amendment rights of free speech, press, and assembly? Since neither Congress nor the President has undertaken to give the Secretary the authority he claims, we need not consider these constitutional questions.
. Peters v. Hobby, 349 U.S. 331, 338, 75 S.Ct. 790, 99 L.Ed. 1129.
. 32 Stat. 380 (1902), 22 U.S.C. § 212 (1952), 22 U.S.C.A. § 212, which amended 14 Stat. 54 (1866). Under the earlier lav? only citizens were eligible for passports.
Dissenting Opinion
(dissenting).
The discretion of the Secretary in issuing passports prior to the enactment in 1941 of 66 Stat. 190, 8 U.S.C. § 1185 (b) (1952), 8 U.S.C.A. § 1185(b), see Shachtman v. Dulles, 96 U.S.App.D.C. 287, 225 F.2d 938, was subject to no clear limitation except that the applicant must qualify as one who owed allegiance to the United States.
We come then to the question whether, taking the above approach, the denial of appellant’s application is consistent with due process and satisfies the criteria referred to. In reaching this question I construe the factual situation as amounting to an actual denial of appellant’s application on the ground that he refused to file a statement in accordance with section 51.142 of the Passport Regulations, 22 C.F.R. § 51.142 (Supp.1957). The denial flows from the regulation and not from an independent conclusion of the Secretary with respect either to appellant or to any particular geographical area. The information sought by the regulation is relevant to the criteria by which the Secretary must be guided; for travel abroad at this time by persons who owe allegiance to the United States but who are or have been members of the Communist Party may reasonably be deemed to be related to the national defense and to the conduct of foreign affairs. It does not follow, however, that refusal by the applicant to furnish this relevant information, without more, brings denial of his application into conformity with due process. It must be borne in mind that the denial deprives him of liberty to depart from the United States, a right which he has unless lawfully deprived thereof. In Garner v. Los Angeles Board, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317, the relevant information which the Court held the applicant must supply was required by law, and was with respect to retaining State employment. These two factual differences are enough I think to distinguish that case from this one. Not only has Congress not specified here that the information refused must be furnished as a condition to obtaining a passport, but the liberty to travel is on a different footing from a desire to retain State employment. In the one case there is the taking away of an existing liberty; in the other there is State control over the qualifications of its employees. And the degree of restraint involved, as well as. the nature of the liberty restrained, are pertinent in determining the sufficiency of the reason assigned for the restraint.. Furthermore, the failure of appellant to-furnish the information may have been in good faith reliance upon the First Amendment, cf. Konigsberg v. State Bar-of California, 353 U.S. 252, 77 S.Ct. 722„ 1 L.Ed.2d 810, or for other good faith» reasons, such as fear of prosecution for-making a false statement. Of course the reason may have been that to answer truthfully would have disclosed Communist Party membership and thereby-automatically have caused the application-to be denied under section 51.135(a) of" the Regulations. But we are not required to assume this reason, or now to-decide the validity of denial of a passport based on such assumption. It is-true, as pointed out in Judge Washington’s concurring opinion, that Congress» has declared that travel of Communist
Being of the views thus expressed I would reverse and remand, with direction that the case be returned by the District Court to the Secretary for reconsideration consistently with these views and with procedures required by our decision in Boudin v. Dulles, 98 U.S. App.D.C. 305, 235 F.2d 532.
. It seems manifest that control was attempted. No longer was there to be merely the ascertainment of the obligation or not of allegiance. Before 8 U.S. O. § 1185(b), 8 U.S.C.A. § 1185(b), was enacted this qualification was the sole essential. The enactment, therefore, was a definite authorization by Congress of control of the travel of some who had that qualification.
