Zemel v. Rusk

SMITH, J. Before JOSEPH Circuit Judge, and CLARIE and BLUMEN- Judges. FELD, District CLARIE, Judge. District plaintiff, a citizen Joseph Smith, Judge, J. residing judicial Circuit within this States Blumenfeld, Judge, brought against district, District dissented action part. Rusk, Secretary of Dean Kennedy, United F. States Robert Attorney General of States declaratory judgment enjoin for a and to two enforcement execution namely, Passport Congress, acts of 887, 22 Act of U.S.C. § Stat. Immigration and 211a and Act of of which the 8 U.S.C. both plaintiff repugnant to the Con- claims are stitution. Jurisdiction of this Court port by letter, 10 of Admin- Office that invoked under Section the the former had Act, acquired passport new istrative Procedure Stat. and renewed petitioner’s (1946), request 1009 and 28 U.S.C. for its and U.S.C. validation 2201; any department 1391 and and to a review of denial. The §§ three-judge lapse in U.S.C. 2282 and 2284 a advised counsel that of view the §§ pass upon time, filing original appli- to the court was convened since the questions cation, application filed, constitutional issue. new should be setting purpose trip, forth his the the Cross motions been filed the have expected Cuba, duration his address respective parties, pursuant to Rule willing- while there and of his assurance summary entry Fed.R.Civ.P., for the register ness with the Swiss Consulate j'udgment representation of on based upon his arrival in Havana. parties in this both that exists there Thereupon, petitioner filed a new genuine any no case issue as material application validation, for he wherein Having arguments of fact. heard the represented purpose trip of his that the parties respective and counsel for the satisfy curiosity to Cuba was to his about having plead- considered their amended the state of affairs in in order to Cuba affidavits, ings, papers and briefs him a make better informed citizen. He file, opinion on Court is of that represented further, expected that he summary j'udg- plaintiff’s motion for stay ap- at the Havana for Libre Hotel defend- should denied and the ment proximately two or and three weeks ex- summary j'udgment ants’ motion for pressed willingness register his with granted. should be the Swiss Consulate his arrival in undisputed. On The material facts are Havana. 31, 1962, plaintiff March was while the 5, 1962, petitioner On November of a the holder valid United States Deputy was notified Director duration, port he and of standard form Passport “present pur- Officethat his applied letter to Director of pose visiting Cuba does not meet C., Washington, Passport Office at D. your pass- standards for validation of permission passport for his vali- have port.” emphasized It should be that at for as a tourist. dated Cuba hearing the time motion, petitioner’s the Court’s on this per- Passport him Officedenied counsel stated explanation requested, mission with the making illegality he was no claim of might only persons whose travel having the basis his client’s not been the best interests hearing afforded an with administrative such as newsmen businessmen reference the denial previously interests, could be established and this Court will validation therefore eligible; specifically tourist any that he has abandoned claim consider of May Thereafter, on travel was excluded. illegality ground, on this notwith- 1, 1962, petitioner requested a hear- standing complaint. its recitation reciting application on his without justi- plaintiff’s reason, except It is the contention that that he felt new Passport wanting trip. Act of was fied in to make the He copy 211a not authorize the Administrative U.S.C. does sent a of the current taken, Passport action that said Act and 215 Office Procedures Immigration Director, acting Deputy Act advised citing 8 U.S.C. Stat. 22 C.F.R. 51.170 they unconstitutional, inter- was because where those instances rights limitations, citizen, geographical fere with the restricted every- plaintiff, generally applicable instance the which were Fifth, procedures one, Ninth and Tenth travel under the Amendments; no administrative speech, appeal provided. the freedom were Subse- review 11,1962, petition- the First quently, belief and association October arbitrary through attorney and that it is an Pass- Amendment his advised the er process denial execution of repugnance unreasonable due * * further, Amendment; under the Fifth to the Constitution delegation legis- that it invalid elements the convoca- (1) not contain tion lative because does of such a court are three-fold: safeguards. adequate allege complaint standards and The The must basis for petitioner equitable relief, Kennedy Order claims that Executive v. Mendoza- Martinez, Proclamation 144, 554, 7856 and Presidential 372 U.S. 83 S.Ct. provide 3004, ; ade- (1963) (2) Stat. C. 31 fail to 9 67 L.Ed.2d 644 constitu- The guide Secretary quate question standards to tional raised must substan- be regulations promulgating 224, Rusk, of State tial. 372 Schneider v. U.S. giving proper 624, (1963); American notice 83 9 S.Ct. L.Ed.2d 695 sup- (3) Complaint said citizen whether The must assail ported proclamation; or Congress’, statute ‘Act of & William Jameson upon Morgenthau, 171, to the extent that the denial rests Co.v. 59 307 U.S. S.Ct. foreign relations, power 804, (1939). Executive over 83 L.Ed. 1189 subject it limita- is still constitutional judgment plaintiff put A for the would given by tions, and the reasons the Secre- operation 22 211a and U.S.C. 8 § abridgement. tary do not warrant this U.S.C. of an 1185 under the restraint § decree. The constitutional claim plaintiff presently prays equity The for a declaratory judgment injunction plainly substantial, and an for in Kent v. decreeing Immigration Dulles, 116, 1113, 130, 215 357 U.S. 78 S.Ct. 1952, 1120, Supreme Act 66 Stat. (1957) 2 L.Ed.2d 1204 163, 190, 8 U.S.C. and the Pass- 1185 1926, Court deal with a con said: “we here port July 887, 3, right citizen, stitutional 22 211a U.S.C. are unconstitutional which we will must assume be Secretary regula- respect.” that the State’s faithful The restricting tions,1 grant Cuba Court’s refusal certiorari any authority in law and involving geographic thus without three cases2 re plaintiff. strictions, arising also subsequent are invalid as to the requests He all to Kent Secretary supra, pres that the State v. does render petitioner’s pass- directed to validate the ent claim Court has insubstantial. The port Cuba, for Attorney and that and frequently travel to he reiterated that denial “[t]he General imports of a writ of no ex certiorari enjoined from interference pression opinion upon States the merits * * instituting prospective with his any the case v. procedure by reason there- Carver, criminal 260 U.S. 43 S.Ct. consummated. when 67 L.Ed. 361 See also Stern Gressman, Supreme & Court Practice § COURT ISSUE THE THREE-JUDGE (3d 1962). 5-7 ed. jurisdictional alia, preliminary plaintiff claims, that if inter The Secretary proceeding question is whether 211a and 1185 authorize the §§ by three-judge place District geographic limitations should be heard they travel, This 2282. Court 28 U.S.C. are unconstitutional pre delegation requires as a such a tribunal statute reason of an unlawful granting legislative requisite “inter He to the to the Executive. injunction locutory permanent argues reading re that a of these sections straining enforcement, operation they stand- shows that are devoid p. 1959), denied, infra. 80 1. See 82 Cir. cert. (1959); Frank 4 L.Ed.2d 186 U.S.App.D.C. 400, Herter, v. 107 Porter Herter, U.S.App.D.C. F. 1960), (D.C.Cir. cert de 278 F.2d nied, denied, (D.C.Cir. 1959), 2d 245 cert. 4 L.Ed. U.S. 918. 80 S.Ct. L.Ed.2d 187 Herter, 80 S.Ct. (1959); Worthy 2d 185 (D.C. U.S.App.D.0. F.2d 905 acquired, officials could be principles until a which the ards judge ultimately was found guided. who injunction. the desired plaintiff affirm- seeks as this Inasmuch Cong.Rec. 479-481, 2142-2143 enjoin operation atively of a (1937).” Kennedy v. Mendoza-Mar- system, propriety regulatory port tinez, supra, 372 U.S. at three-judge empaneling tribunal L.Ed.2d 644. history legislative of § manifest. was enacted indicates truly This is a substantial constitution- para- single judge from prevent a federal challenge sovereignty al of this lyzing operation admin- of an entire plaintiff’s enjoin Nation. This effort system issuance istrative enforcing injunctive order. broad statutory regu- law and its attendant during merely simple “Repeatedly emphasized lations is not and seemingly application congressional on 2282 were harmless of a lone debates tourist; pilot heavy prece- un- pecuniary it is in fact a costs case debilitating interrup- dent, sustained, open up which if and foreseen thoroughfare an administration fed- immediate tions unre- wrought by stricted could be travel between the eral law which great judicial single judge’s order, and Cuba. and the Such an act of au- a dacity only coping with har- would not burdens entailed defeat the clear brought Congress assing an- intention of one after actions established challenge law,3 operation of but also strike down the other declared statutory scheme, policy of an wher- Branch of entire Executive government jurisdiction National over Government.4 A ever substan- Cooperative arrangements among (a) Immigration and not 3. only meeting 8 U.S.C. also the countries here but among be all OAS members will have to § 1185 sought effectively (b) not to restrict more On October joint stating people passed that the those for sub- resolution movements purposes determined, prevent inter alia: versive but also to United States is “ * * * possible prevent by whatever means sofar as the introduction of including money, propaganda, materials, necessary, and the use regime Arrangements arms, arms. for additional sea the Marxist-Leninist extending, by interception and air from force surveillance and Cuba aggressive force, its or subver- within territorial waters will be worked threat cooperation part hemi- out with from sive activities to sphere of this * * Dept. States.” Bull. 76 Stat. 697. State (April 8, 1963). (a) President Ken- 4. In March of (b) agreement entered Pursuant nedy participated in a conference Rica, meeting of into in Costa Ameri- of the five Central the Presidents place took Ministers of Government Republics A Panama. result can and Managua, Nicaragua. April of 1963 at Declaration of this conference was the meeting significant Resolution of that is quoted passage of which Costa Rica to the instant matter: below: meeting of Ministers Govern- “The agree “The that Minis- Presidents Security ment, convoked Interior and coun- ters of Government the seven pertinent section possible meet as tries should soon as America Declaration of Central the signed by develop put ef- and into immediate of the seven the Presidents to restrict fect common measures Jose, Rica on in San Costa countries their nationals to and movement 19, 1963. March material, Cuba, and the flow of propaganda and funds from that coun- AGREES try. “To recommend to their Governments among action, they adopt, meeting within the limitations will take “This pro- respective things, travel constitutional stricter of their to secure put including appro- visions, controls, passport effect measures to be into and priate immediately, prohibit, restrict and other limitations discourage na- of their Cuba. the movement travel on travel documents ** * question accepted is in issue. tests. constitutional Where tial validity enjoyment, natural statutes’ activities or fact well-being necessary are in often attendant citizen, travel, being upheld, than nulli- rather such as American instance principle. involved, fied, Bauer will we construe nar- does not alter (D.D.C. rowly delegated F.Supp. powers Acheson, all cur- 1952). tail or dilute them.” Kent supra, 357 U.S. at 78 S.Ct. at pres- All of elements 1120, 2 L.Ed.2d 1204. require matter be heard ent to that this The issue in this case whether three-judge court. determined geographical restrictions U.S.C. § imposed in re- MERITS spect authorized to Cuba are Congressional of a citizen and if so are those act “liberty” part purport of which he cannot such au- statutes which process thority repugnant deprived, except limi- due to constitutional recognized finding precept law. This tations. It is this Court’s guaranteed granted adequate Fifth authori- under the Amendment ty department to make to the Constitution. to the Federal Executive “ * * * regulations, application these their (T)he of exit is a proc- in this due instance does violate personal within included authorize the ess the statutes which and ‘liberty’ Fifth word as used regulations, 211a and 22 U.S.C.A. § ‘liberty’ If that is to Amendment. and U.S.C.A. 1185 are valid constitu- regulated, it must be tional. law-making functions * * * Congress. considering And if that In this constitutional issue acutely power delegated, sepa- the standards Court is mindful adequate pass scrutiny by powers must be and that ration certain areas end, tionals which to and from Cuba. To this tionals travel to Cuba do not they adoption part propose integral (non-detachable) the fol- form an lowing passports measures: or other travel of their doc- “1) general Provide, rule, uments; aas every passport “(c) placed or other travel docu- To observe the limitations carry may stamp ment which be issued in the or other travel docu- passport signatory which indicates that said is not ments of the nationals governments Cuba. them to valid for travel to and not allow de- “2) officially part Cuba; Declare nationals signatory permitted “(d) who to travel coun- are Cuba To inform the permission duly through appropriate should channels of have tries official travel of their scribed their document. refusal allow one nationals “3) depart Promulgate Cuba; and restrict- ing foreigners “(e) signatory granting provide of visas to To Gov- who travelled to Cuba ernments names their nationals have within period may stipulated appear passenger of time. which “4) Notify agencies ship going airplane and to or trans- list coming port companies Dept. their measures for from Ouba.” 48 6, 1963). compliance; gov- (May due and inform Bull. 719 (c) “Embargo through All Trade ernments other countries On With Cuba,” 3447, 1446, appropriate most means. No. Proc. U.S. “5) Cong, Request 1962, p. the Governments of the Code and Adm.News 4173. Hemisphere: (d) Delivery of Of- “Interdiction “(a) Cuba,” Weapons fensive Proc. No. Not allow nationals signatory Cong, countries to travel to Cuba 27 F.R. U.S.Code they possess 1962, p. a valid Adm.News 4241. unless (e) Regula- country Control document issued “Cuban Assets travel; origin tions,” (Supp.1963). for such valid 515.201 C.E.R. “ (b) accept visas, Not to tourist cards or other documents issued to their na- relegated designation government solely to “We think the of cer are Congress, world tain areas others Executive forbidden falls common to both. The Execu American travelers within some are legis foreign until act in conduct affairs. tive certain fields operative and the that certain lative action becomes bare determination law-making hemisphere power then controls. Con areas outside this statutory danger gress’ right lay spots, zones, restrictions trouble is a phase ‘foreign on the he treads such affairs’. a de President when Such legislative ground unani is conceded termination information involves gleaned mously by Court; ample through diplomatic an sources safeguard channels, judgment prem if choos and a available large part foreign apply upon pol so es it. Until does ised choose, (the icy. grounds Court) should hesi “[w]e long limiting desig tate before embarrass President would make such a Hare, powers.” foreign considerations, nation Mackenzie v. foreign policy. affairs and Indeed L.Ed. 297 is the that such a The President seem restriction agent Nation, policy. active not of the and of itself a Congress; and di It is at of for he derives status least instrument eign rectly policy.” Worthy Herter, powers the Executive vested U.S.App.D.C. 153, in him the Constitution. U.S.Const. 270 F.2d II, (D.C.Cir. 1959), denied, must, Art. cert. He §§ course, obey carry out laws L.Ed.2d 186 en by Congress, acted not because he is sub servient, but because the Constitution di Passport designed solely control was not him do rects so. Thus it becomes ob protection security. as a internal government that in vious certain of areas adopt thinking To such would be naive authority Legislative of and Exec many phases and unrealistic. of So departments overlap; utive and a con security ternal with for- are intertwined authority cognizable. current of both is eign affairs in of the administration acts in ab- the President “When passport control the two become congressional grant sence either inseparable. government This area of authority, can he denial requires joint-control Con- effort pow- rely upon independent his own gress Executive, and if the intended twilight ers, but there is zone It is one are to be obtained. results Congress may in which and have he Ianeways Congress legislates broad where authority, or in which its concurrent Executive, authority within Youngs- distribution uncertain.” must his discretion which he exercise Sawyer, town & Co. v. Sheet Tube authority administering effectively 579, 637, 72 changing af- of world in a fast climate (concurring (1951) 96 L.Ed. 1153 fairs. opinion). Congress provided that the Exec- regulation and The field necessary steps short all utive shall take law-making control cuts func- across the rights protect of an act of war to tions of and Execu- the Chief citizens on of American and liberties responsibility in of for- tive’s the field Certainly eign it is consistent affairs. soil.5 government it of that § U.S.C.A. 1732: “Whenever with to demand imprisonment; if it reasons of such and made known the President wrongful appears un- and violation citizen of the States has been to be rights citizenship, justly deprived liberty by or under of American his authority any foreign government, re- forthwith demand the President shall citizen, duty if release it shall be forth- lease of such and of the President require of the United States policy ests that he should an overall prohibitions granted by law, authority that restrictions and exercise provided occurring addition those other- in those prevent incidents to countries, imposed diplomatic than wise this section re- normal where departure persons who from Those lations non-existent. entry and their into the United pursue of unlimited States, public proc- will, and shall make abroad freedom thereof, shall, lamation until to criticize it oth- would not hesitate those who failing government protect erwise the President or ordered * * Congress, them, This unlawful *. attitude if need arose. such action dampened, when is not even “Citizens foreign policy jeopardize could “(b) proclamation After such vigilance safeguard nation. Personal provided (a) for in subsection permitted to never be should freedom pub- this section has and been made destruction for the become sword used proclamation lished while such protecting. protests it is it of the edifice force, shall, except inis as other- authority of the Secre- In this ease provided by President, wise specific tary on two is founded State subject to such limitations and ex- Congress, namely, Pass- acts port ceptions may as the President au- Stat. U.S.C. Act of prescribe, thorize and be unlawful Immigration and 211a and 215 the citizen of the United States depart enter, attempt 190, 8 U.S.C. 1185. depart enter, from or the United 22 U.S.C.A. 211a: States unless he bears a valid “The port.” * * * passports, issue On December the President such designate as the President shall rules promulgated Presidential Proclamation prescribe for and on 2914,6 declared, for reasons therein no behalf of forth, set emergency. the existence national person grant, issue, shall pre- This action executive verify passports.” operative ceded and was when 8 U.S.C.A. 1185: passed Thereafter, 8 U.S.C. 1185. on January 17, “(a) 1953, pursuant When the United States is fore- going during legislation, war or of the existence the President reiter- emergency proclaimed by national ated the of national existence the emer- * * * gency President, accordingly and issued new the and the Pres- find that idential Proclamation.7 It is to be President shall the inter- noted delayed persons unreasonably upon departure so Act from, the of demanded refused, entry into, President shall use and the United such means, amounting war, of not as States when the States is at acts may proper during he think and ob- war or the existence of na- release; by emergency proclaimed tain or and all the tional effectuate aliens, proceedings or, facts relative thereto President as to whenever and practicable shall as soon as be communi- there of war between state exists by Congress.” among states, cated the President two or more and when the inter- President shall find that 6. Proe. No. a454. Stat. require; ests of the United States so 7. Proe. c31: No. 67 Stat. and emergency of Im- “WHEREAS section 215 “WHEREAS the national Act, migration Nationality proclaimed and enacted the existence of which was (Public 16, 1950, by June Law on December Proclamation Congress; 190), exists; 82nd 2914 still and impose President re- “WHEREAS exi- authorizes because gencies prohibitions strictions and in addition of the international situation by provided otherwise and of the then exist- those national defense sentatives, promulgate in con- ‘Provisions Federal Law did it not Emergency’.” Effect National emer- Time national tinued existence report by prepared The foreword of the previously ear- gency referred pointed Chairman the Committee’s states: proclamation, it but lier Immigra- emanating authority from the emergency proclaimed by “The by Nationality passed Con- Act and tion yet in 1950 had President been June gress, became law which terminated and the chronic state action. the basis executive as international tensions it clear made re- proclamation been never This would not be terminated * * * terminated. or otherwise scinded future. foreseeable emergency still national existence of the heightened “The international ten- continues. developed sions which in the latter part Judiciary of 1961 created new interest The House Committee legal consequences compiled in the of the ac- its use in had might provisions tions which in the of law taken all those by by brought cold war or the Presi- had into the dec- been effect particular, emergency dent. In sub- there was laration of a national knowing again stantial in 1962 concern ex- President. It was revised actly legislation published “Report what would become and to the Com- Judiciary Repre- upon effective the declaration of mittee on the House thereto: prescribed by and ject Title quire from zens in hereby United States: TRUMAN, President by law, virtue of the scribe and international section regulations, otherwise departure tional defense still and States of sons from and their restrictions entry “NOW, THEREFORE, “1. “WHEREAS addition persons from, imposed Proclamation waters, interests United the Canal to those prohibitions, to the and nationals and into into the United shall be find of the United States 215 of the America, acting restrictions and imposed provided imposed departure to those otherwise upon States; make the continental or jurisdiction and and orders with otherwise authority situation and of persons subject Zone, publicly proclaim No. prohibitions, United and their require Secretary certain restrictions and exigencies United States and addition departure Immigration States; to the provided by following vested from and their entry law, upon section of the United I States, I, United entry insular, all prohibitions, hereby pre- that certain HARRX S. regulations entry November departure Code, do of State in me territory and into to those provided in addi- the na- respect of citi- includ- States rules, into, sub- per- law, re- in December hereof, lamation. proclamation provision and this lamation, rule, regulation, ulations corporated I punishment tions as he and proclamation and the execution and inclusive, of the of their partments Federal quest make available to the operate States of State for that sued retary revoke, modify, part “To the extent “2. “4_ “5. “3. enjoin upon preventing hereby incorporated laws thereof agencies published ^{[*] [*] [*]} Immigration charged with the pursuance proclamation, including and in with the Regulations. hereby of the respective of that section or of this ^{[*] [*] [*]} herein and any ^{[*] [*] [*]} proclamation; Title 22 of of the Government to of Ms 1952.” violations shall all officers of as sections 53.1 agencies find or amend Secretary direct bringing require. persons permitted by law, any subsequent proc- hereof; purpose hereby officials and authority and take Such utmost all interests of the of Section shall into and made violating authorized to trial and any effect the Code execution and such de- of State departments the services and the Sec- of State under this order is- diligence to 53.9 agents. regula- United as proc- made part reg- this co- re- On port cally incorporated by quire. retary ized the tle 8 U.S.C. 1185 the interests ulations amend these §§ required legiance to the United States: 53.3. port part ters, to the g Presidential Proclamation 3004 to the United the United States from or States national or as used 53.1, § Canal States. State or States 53.1 to 22 of Page 23, pargaraph 6(c) of 53.3. “No valid 53.1 “The term ‘United States’ 53.2 “No citizen of (a) Congress, th'e statute of State from or enter into which has continental or unless he bears previously prescribed by Zone, § the Code Federal authority “* * * Secretary or of 53.9; jurisdiction exceptions prescribed enter into emergency by unless person applicable portions provide: and all or appears. the United States to re- citizen person both.” presently he comes within States who of the been issued in part published territory reference the addition revoke, modify or insular, owes of the United attempt as he owes al- who the President defined includes the shall any part valid in allegiance Regulations find might and wa- shall be under it author- subject United question, depart to de- the Sec- this re- pass- in § specifi- one reg- Ti- publicized,8 tained in amended 22 C.F.R. Department Regulation 108.456, 26 F.R. distributed Press 482 so State, pursuant territory withdraw a the United States and thereto: excluding Cuba: jacent cel a tain America Simultaneously, Public Notice 179 was of State from certain countries.” territory or try such riving tion ed States for which a valid United States § On passport, 53.8 53.3(b) (cid:127)X- (b) North, required construed restricting South America January 16, or resting toas countries, person shall not be passport already issued, “When Presidential Proclamation thereto: territory -X- “Nothing accomplished in or in Provided, and the or Island Central or South provide: “When to restrict its use to cer- passport North, under in him to when place traveling -X- exercising its prevent to the to withdraw or can- any Release No. 1961 the Department * * * validity traveling * * traveling applicable this in this or Central, outside the adjacent That 53.3(b) -X- North, Central, any island refuse via part, any country, authority between the country this the discre- island ad- part ^[*] Secretary America, or South to or ar- passport adjacent between purpose (1958) thereto if use excep- of State Unit- coun- or to' issue shall any ^[*] both or con- It read: 211a), Stat. 22 USO all United existing “In view of the passports hereby conditions States declared to diplomatic in Cuba and absence be invalid for travel to or in Cuba ex- country cept passports relations between that of United States States of Upon America find that departure now in citizens Cuba. unrestricted of such citizens from Cuba their ports subject citizens to or in Cuba would be con- shall be to this order. trary foreign policy of the United “Hereafter United States States and would be otherwise inimical shall not be valid for travel to in specifically to national interest. Cuba unless endorsed authority “Therefore to the authority such travel under the of the Secretary in me invested Sections 124 and of State or until this order 7856, 126 of Executive Fed.Reg. Order No. is revoked.” 492. (3 issued on March F.R. 6S7, 51.77) 9. It read: CFR 51.75 and under au- thority Department of Section Act of “The of State announced approved July 3, (44 today that in view the United States fully passport promulgated and control within broad of which more visas regulations purpose of and the ad- bounds of Executive discretion. There department policy in in has been no claim arbitrariness ministrative regulations. application. administration of these No clearly passport have in this dis- has been claimed to been The issues case are tinguishable Dulles, supra. denied, per- applicant’s from Kent v. because race, beliefs, character, writings, these sonal The Court held that two there religion, statutes, in fact 8 U.S.C. and U.S.C. like. It does bar Secretary specific 211a, of all to a did not authorize the travel Americans citizens, passports geographical to because fact that withhold area. mere associations; administratively of their all tourist travel beliefs employment banned, newspapermen a standard such bona while fide people previous could not to restrain the citizen’s inter- be used with business eligi- may as movement. in Cuba be considered free ests “We, arbitrary therefore, impute to hesitate to ble for is not criteria travel Congress, process. made when 1952 it violate due trav- “ * * * (J)udicial review even dis- its to the el left issuance the formula of selection is narrow State, cretion of the determining and it is limited to give purpose dis- him to unbridled whether the basis of the choice to withhold cretion relationship to bears some rational port substan- from citizen for to be served. The distinc- ends may Kent choose.” tive reason he agencies tion made between news Dulles, supra, U.S. at in for- with a demonstrated interest 2 L.Ed.2d 1204. eign coverage and individual news government may pow- have the “The reporters must have some relevance citizens of all the travel er forbid purpose to be achieved. geographic be- particular areas -» *(cid:127)»«** emergency. or national cause of war foreign policy “The considerations to re- have the It does not give latitude wide whose with of citizens strain travel defining drawing disagrees.” Boudin criteria.” politics line counsel), Herter, U.S.App.D.C. (Plaintiff’s Constitu- Frank Travel, Right Colum.L. (D.C. tional F.2d 247-248 (concurring opinion), 1959) Rev. Cir. denied, case, cert. present established In the regulate (1959).10 4 L.Ed.2d 187 law President’s following previously inability, with es- men or businessmen Government’s diplomatic interests. between tablished business relations break Cuba, aliens cannot extend “Permanent resident the United States permission special protective Ameri- unless travel to Cuba services to normal purpose through Cuba, visiting citi- is obtained for States United cans Immigration go desiring until and Nat- must to Cuba zens specifi- uralization Service. obtain further notice regulations being Department amend- cally “Federal endorsed outstanding requirements put into ef- ed to All these travel. for such except passports, fect. those Cuba, remaining citizens been taken in States being “These actions have conformity Department’s Cuba for travel to invalid declared specifically practice limiting for such endorsed unless normal travel. those with which the United countries contemplates Department diplomatic re- “The does not maintain States exceptions will these No. lations.” Press Release persons granted whose consider, significant being regarded 10. It is addition inter- in the best as present news- in the statutes issue ests of the United authority granted pow- with The defined petitioner if that claims general specificity granted the conditions Executive to the er has been to law-making was authorized functions which the Executive to the upon the war Congress, Both in time of must be ade- act. the standards accepted by a na scrutiny by quate pass the President declaration to Ryan, emergency, Refining President when the tional Co. v. tests. Panama United 388, 420-430, of the finds that interests 55 S.Ct. 293 U.S. may requires, (1934). these restrictions States L.Ed. 446 imposed. entry departure and “ delegate legislature its cannot ‘The application is The time or term law; power it can but to make or limited President until the delegate power to a law to make All condi shall of the order. otherwise or state some fact determine precedent for the tions law established makes, things upon law which the power exercise have been fulfilled.11 make, own action or to its intends much like mech- Government is a clock deny depend. To would be to ; perform ” anism in order to its functions government.’ stop the wheels effectively operate. To do so it must 491, 498, Appeal, 72 Pa.St. Locke’s passport administration, this area of in, Clark, quoted Field U.S. which is so inter-related with L.Ed. S.Ct. affairs, considerable discretion and el- (1891). granted bow-room must be to Execu- authority adminis- make “But the tive. delegation of rules not a trative every “Practically of the volume legislative power, such rules nor are United States Statutes contains one from an administrative raised joint or or more acts resolutions legislative the vi- because character Congress authorizing action punished pub- as a thereof is olation respect subjects the President v. Grim- lic offense.” United States affecting foreign relations, which ei- aud, pow- ther leave the exercise of the L.Ed. 563 judgment, er to his unrestricted provide general far Congressional standard more statutes To claim that always than which been which authorize the Executive make requisite regard considered with not con- administer domestic affairs.” destroy United States theme of stitutional would Curtiss-Wright Corp., legislative multiple 299 U.S. fields of action in governmental regulation. L.Ed. accepted applied real to be is whether test “ delegated power ‘It is in this essential meet instance the situa- vague, circumstances, so the Executive should under the have lacking standards, authority definite, wide discretion and wide illegal at- action. No one can constitute unwarranted foresee delegate tempt adopt- Executive the different means Legislative power ed law. hostile nations to mili- make secure eign ease, princes, states or or to the basic memorials or applications foreign public other of State. from foreigners, ministers or other “The of State or to such C.A. 156: respecting foreign perform matters affairs shall such duties as shall as the President enjoined time to time be intrusted assign department, shall he cor- him relative to President depart- shall conduct business of the respondences, commissions, instruc- ment such manner as President public con- tions to or with ministers or shall direct.” suls from the or to ne- gotiations public supra ministers from for- 1 1. See note 7. Judge BLUMENFELD, (con- spread propa- District tary information dissenting curring part, part). ganda It is obvious- and discontent. ly appeal impracticable to to Con- ground on that this is a I dissent legislation gress in each for further judge. for a case district court one emergency. ac- Executive new Swift Jurisdiction counter- tion is the effective ” plaintiff brings for an The this action Report of House Com- stroke.’ injunction H.R.Rep. force the State Foreign Affairs, on mittee 2-3, his for validate Cong., 2d No. quoted 65th Sess. refusal Cuba. The bases his supra Dulles, in Kent v. existing regula- Department at at 357 U.S. 78 S.Ct. dissenting). tions. (Clark, J., L.Ed.2d 1204 We are part prayer confronted with threshold plaintiff’s That of the question jurisdiction. question is requests criminal relief proper whether this for conven- is a case provisions of U.S.C. 1185 enforcement ing three-judge enjoined court. (c) be is not warranted. complained law of is not in contravention per opinion The recent curiam the Federal Constitution. There Supreme Voyage Court in Idlewild Bon grounds upon no which this Court would Liquor Corp. Epstein, 370 v. justified interfering crim- with the 1294, 1296, 82 S.Ct. 8 L.Ed.2d 794 aspects inal enforcement this statute. (1962), forth dis- sets the tests which a apply trict court should to determine duty to “The enforce the criminal three-judge required: whether a court is law is Constitution not vested judicial govern- arm of statutory application “When an for a * * * but ment executive. three-judge court is to a addressed trespass improvident It would be an upon court, inquiry district the court’s is separation powers, appropriately limited to determin- complete usurpation pow- if not a er, ques- whether the constitutional immu- court to were the substantial, is raised whether nity in of an actual trans- advance formally complaint the leges al- least Longshore- action.” International relief, equitable a basis for Inc., Lines, men’s Ass’n. v. Seatrain presented oth- whether the case F.Supp. 653, (S.D.N.Y. require- erwise comes within the 1963), grounds, rev’d three-judge ments statute.” 1964). (2 Cir., F.2d 916 no There is doubt that the constitution equity “The court has at times question plainly insubstantial, al is not enjoin upon to been called the en- Bailey Patterson, 369 U.S. see prosecution. forcement criminal (1962), for in 7 L.Ed.2d 512 firmly The rule has been established Kent v. 1113, 1120, ordinarily that it will not intervene 2 L.Ed.2d 1204 enjoin law the enforcement repeat, “To deal Court said: we *** prosecuting officials with a constitutional here proper circumstances unless under citizen, a which we must assume irreparable injury, there respect.” faithful will be question and the sole involved And, equitable relief is al a basis * * * of law a clear one legal right where leged. to the relief estab- But, does not “otherwise case Littleton, N.Y. lished.” Reed requirements of within the come[s] N.E.2d 815-816 three-judge statute,” which reads: Therefore, plaintiff’s motion Section 2282 Title 28: denied; summary judgment defend- interlocutory permanent summary judgment “An motion for ants’ junction restraining granted. the enforce- So ordered.

77 point plaintiff’s ment, operation The focal attack execution clearly upon regulation repugnance itself. for “But an attack on lawless exercise au- the Constitution of thority granted by particular in a is not an States shall not be case upon judge constitutionality attack court or un- district thereof conferring application authority statute less the therefor is heard even though misreading court of determined a district the statute is in- least, justification. judges voked as not three section 2284 At Congressional within the this title.” scheme of § * * * words, 266. In other it [the Here, directly we are not and imme- plaintiff] seeks a restraint not a stat- diately question confronted with the 1 ute but of an action.” Phil- executive statutes, whether either of 211a or § lips 246, 252, v. United 312 U.S. 1185, by granting their terms forbid § 480, 484, 61 S.Ct. L.Ed. 800 85 plaintiff for validated logical escape There is no from the plaintiff Cuba. The himself proposition regulation that whenever a position in conceives his this court is held it invalid must mean either “properly protect is to sue to his consti- regula- the statute did not authorize the rights by alleging tutional that the stat- authorizing tion or that in the statute so upon by ute administrative relied event, it is unconstitutional. In that agency support not action taken does question always constitutional reserved by it, and it does it is unconstitu- that if secondary determination. The court’s Plaintiff, p. (empha- tional.” Brief 5 general avoiding doctrine of constitution- added). sis questions possible, al whenever Unit- see analysis fairly This derived 45, Rumely, 41, ed States v. 73 345 U.S. specificprayer his for relief: 543, (1953), S.Ct. 97 L.Ed. is not 770 “(e) Decreeing that the defendant significance determining without up- of State’s restrictions special three-judge whether the court Cuba, as embodied his procedure should deci- be invoked. The public 16, January announcement Phillips sion in that an 1961, 24, No. Press Release Public upon attack a state was too re- statute 179, 26 F.R. and in Notice De- cognizant procedural tomote for the 108.456, partmental Regulation 26 purposes by applying 2281 tested 482-483, invalid, F.R. without are principles by Mr. Car- set forth Justice any authority law, unsup- and are Bank, Gully dozo in First Nat. ported Passport ofAct 109, 116-118, L.Ed. S.Ct. 211a, Stat. 22 U.S.C. stag- (1936), to differentiate between Immigration and Section adjudication es which issues Act of compel reached would seem like Proc- 8 U.S.C. De- determination here. See Kesler v. 3004,18 (Plain- lamation 489.” F.R. partment Safety, of Public 369 U.S. Complaint, p. 7) tiff’s Amended L.Ed.2d 641 being Dulles, not We are asked Constitution; test Court Kent v. against 129-130, we at 1119- statute 357 U.S. at 78 S.Ct. 1185(b) being departmental 1120, 2 asked to test the L.Ed.2d 1204 treated § regulations. although regulation pari passu 211a, But is not an de- Congress.” expressly “Act of As Jameson disclaims reliance William fendant authority Morgenthau, & it Co. v. here as a source regulation excluding 804, 805, L.Ed. travel to Cuba. respect pertinent predecessor of as in the here in no § 2281 266 is the Section way and, although with constitution differs from 2282. it deals fully applicable ality statutes, of state it is juris- points out, “an our Kent v. exercise 2282 does refer three-judge board diction as a court would be order made administrative relating permit plaintiff in this case commission” as does § wag dog by states, its re- the of a to review to action confines direct route but by grasp- three-judge Supreme simply quirement “to court the Court for a Congress’ allegation upon of uncon- of tail of a of attack an ‘Act the bare cases any stitutionality prayer ground Act or of and a that ‘such a statute injunction part repugnant for an to the Constitu- thereof ” tion the United States.’ Flynn Rusk, 219 F. Examination v. fact that with a consti- pending, we deal Supp. appeal (D.D.C.1963), 709 right tutional of a not mean citizen does three-judge court district which a validity every inter- that the claimed convened, plaintiff, Brief was cited litigated a with it must before challenge ference be Plaintiff, p. 10, discloses contrary three-judge conclu- court. A constitutionality of the Subversive compelled by in Mr. sion is not a sentence Control Act Activities opinion in Florida Justice Whittaker’s (1958), which 50 785 U.S.C.'§ Jacobsen, v. Lime Growers specific forbids and in its face terms 76-77, 568, 4 L.Ed.2d 568 organization 80 S.Ct. of a communist member three-judge required when- that a court is attempt application for or use make question ever substantial constitutional Acheson, passport. 106 In Bauer v. use alleged.2 statutes identified F.Supp. (D.D.C.1952), essen 445 a case plaintiff, 1185, present 211a and ours, upon § tially which the same as no clash between more an immediate misgivings relies, plaintiff also than here juris the Act the Constitution Judge Fahy lack Circuit over the they did in Kent v. where three-judge him to of a court led diction failing ques- openly court in to reach the stating: dissent, constitutionality of the same my the case “In view therefore plaintiff claims are statutes which the com- district court for the usual one here, said: involved right single judge, posed of a with important with “We would be faced parties appeal from his de- questions were we to constitutional Appeals, fol- to the Court cision Congress by 1185 and hold petition to the lowed given 211a au- had Supreme on writ for review Court thority to withhold to citi- litigation should This of certiorari. of their as- zens because beliefs special within not be deemed no sociations. has made by Congress committed class cases terms; explicit provision in three-judge specially to a constituted Secretary may one, not absent court, properly when convened employ that standard restrict question is raised substantial right of citizens’ free movement.” constitutionality of an Act (357 at at U.S. 78 S.Ct. enforcement, operation Congress the 1204.) 2 L.Ed.2d sought of which execution Supreme appeal enjoined, If the Court did not reach the of direct question Supreme acts of Con- 28 U.S.C. § whether the same Court. gress repugnant 2282, supra. end in the were to the Constitution Plaintiff destroyed special plaintiff ground in a had That statement was made proper pristine applicability alter- context reading to refute a claim that a 2282 requirement nately raising question whether §of 2281 limits the three-judge right, apart an Act court to cases where the had a President Congress, impose be- area restrictions constitutional claim is the sole claim of reasonably point for- here control of fore the court. only It would be related to the sought eign if to defeat inherent in the President’s the defendant relations three-judge jurisdiction plenary power court on the over affairs. enjoin most to action District of Columbia at Circuit4 make seeks suggestion might three-judge invalid be- court Worthy conformity with should have been convened. v. cause Herter, U.S.App.D.C. 153, proper the statute construction 270 F.2d cert, raises, (D.C.Cir.), which he acts. She denied U.S. ques- involved, (1959); L.Ed.2d no substantial there is constitutionality 54,267 Herter, U.S.App.D.C. Frank v. tion as to the cert, 454) (106 F.Supp. (D.C.Cir.), F.2d 245 statute.” denied added) (emphasis 4 L.Ed.2d 187 (1959); Herter, U.S.App. Porter considered was That Kent Dulles (D.C.Cir.1960), D.C. cert, F.2d by the merits decided 918, 260, denied 361 U.S. 80 S.Ct. suggestion that a three- Court without 4 L.Ed.2d 185 judge convened should been court have my opinion, three-judge In was court by regarded it omission as an cannot be improvidently invoked. by the case the which notice route it, for Kesler as stated came before Merits Safety, in Department of Mr. Public v. dissenting opin- Justice Warren’s deny plaintiff’s Chief I motion ion: grant summary judgment for the summary Secretary motion for question of State’s is a three- whether “The judgment. For set judge properly reasons convened court was opinion, Although forth at of this I would the close trial this case. the against Attorney by dismiss action the was the the issue not considered the below, General. not been rais- courts has duty parties here, our it is ed In the be de- event it should hereafter independent of such to take notice that cided this case should determined and remand matters any vacate judge, it is the action of a district improperly an decree entered my appropriate briefly express that (369 175, court.” at constituted U.S. on views the merits. 3 641) at L.Ed.2d 82 S.Ct. 7 211a, placed statute, au- § thority might be, passports if issue the Secre- However situation tary solely authority regarded as the Bauer State “under rules designate Acheson, prescribe v. we now know Su- President shall preme an action to for and on of the Court did not deem behalf United States.” Secretary provides: enjoin from Secre- refus- One those rules “The of State tary grant in his dis- on the basic is authorized State * ** pass- regulations promulgated 211a to cretion to restrict it [a under § against three-judge require port] certain countries the invocation use ” * * * Furthermore, Un- court. in none three 22 51.75 C.F.R. § authority separately appeals from sum- der claim of thus derived considered Secretary Secretary mary judgments 211a, imposed a re- § distinguishable upon not on Janu- cases from striction Cuba State one, single judge ary Plain- Public Notice 179. rendered dis- purpose of trict court after Dulles was de- tiff’s Kent v. contention Appeals merely cided, minis- did the Court of 211a was to centralize a portion dissenting opinion Dulles, 3. of the nom. This did en on Kent v. sub sat bane justices, Dulles, U.S.App.D.C. divide the see 369 U.S. at not Briéhl v. 809-810, equal at L.Ed.2d (D.C.Cir.1957), 248 F.2d were question on the who rather focused ly separate panels on three distributed of constitu- whether issue immediate single judge who review affirmed tionality presented. was U.S. at district state court determinations 810-811, 82 S.Ct. at 7 L.Ed.2d 641. department imposing area judges eight upon passports of the who had Six circuit restrictions were valid. solely passports duty in Dulles is that to issue exercise of terial discre- long ignores Secretary subject Secretary ju- of State standing pass- scrutiny. dicial also “that issuance See view Schachtman 287, discretionary part Dulles, U.S.App.D.C. ports ‘a act’ F.2d (D.C.Cir. 1955). Although Kent v. Dul- of les, of State.” 124-125, measuring Secretary’s 1117- at criteria for 1118, 2 1204. While the Su- discretion not L.Ed.2d have been determined preme of other Court that the than that it held not be “unbri- dled”, Congress gave “unbridled discretion not have the fact that does it withhold”, Id. at Executive indicates that powers L.Ed.2d S.Ct. at exercised in relation to his given foreign port, re- such a 211a was conduct affairs. See Schachtman for which as that stricted construction 225 F.2d at 941-942. It plain plaintiff thinking the preme contends. When the Su- to see that was rejected recognized primarily Court in Kent v. Dulles of the argument long Secretary’s con- President to conduct affairs prior through placed tinued construction when executive 211a it the exclu- authority 211a warranted the 1926 enactment of sive to issue in the deny Secretary State, had to inference that he discretion of the arm the Presi- of ground passport personal conducting foreign a on the of affairs, dent in citizen, desig- “such beliefs associations rules as the President shall rulings pointed prescribe out af- that the scattered nate and and on for behalf * '* fecting States, (Emphasis communists were insufficient practices added). that the administrative to other at Travel nations is “jelled” categories relating foreign had to two least one facet affairs. allegiance activity not and criminal were Plaintiff’s claim that 211a is an un rejecting probative relevant. But delegation power constitutional no has relevancy value and the some other delegation govern merit. The role prior practices administrative to estab- only by surrounding ed not the conditions adopted lish that had an inter- particular problem case, in this but pretation of discretion that embraced the by general premises underlying the con right deny passport ground a on the foreign affairs, phases duct of the critical citizen, beliefs Court always of which have been entrusted Secretary’s did not decide dis- his President and of State. deny passports cretion to was limited scope pace foreign affairs only categories jelled. those which had today the condition of the world The Court no went further than to “hesi- impossible make it for to act impute Congress, tate to when in 1952 delegation. Where, here, without as Con passport necessary foreign it made a gress implement presidential seeks to travel and left its issuance to the discre- tion of the power, standards other than a reasonable State, purpose connection to conduct o^. af give him unbridled discretion to fairs are not to constitutionali or withhold a from a citizen for ty delegating Chicago may act. & S. substantive reason he choose.” 128, 1119, Corp., Air Id. at 78 Lines v. Waterman at 2 L.Ed.2d S. S. 333 S.Ct. (emphasis added). 1204 It was 68 S.Ct. L.Ed. reiterat- already (1948); what it had said about dis- see United States v. Curtiss- Wright key Export Corp., problem, cretion: “But the to that 299 U.S. see, as we shall in which manner There L.Ed. Secretary’s exercised, no discretion was need to consider whether it would scope not in fall within bare fact he had discre- the President’s powers. Worthy tion.” Id. at 78 S.Ct. at inherent But see point Herter, supra. L.Ed.2d 1204. The Kent Although passports are sometimes with a demand to remove the missiles it brought subject previously matter treaties with other na had to Cuba treaty may began tions, power include the few weeks before Zemel this suit. pow power to exclude aliens but reaching I am not inhibited in this re- impose our er travel restrictions considerations, sult constitutional Treaty powers own cannot be citizens. right I believe the restriction on the regulate pure which are used matters to travel that is involved here is valid' “ ly of Power Au domestic concern. See gravest danger one. he [T] imminent to' thority C., F. P. of New York v. public safety” required the justify in order to' (D.C. U.S.App.D.C. F.2d persons the exclusion of Cir.), with to dismiss remanded direction homes, Korematsu v. United moot, 2 L. 355 U.S. 78 S.Ct. 214, 218, 65 S.Ct. Ed.2d 107 perhaps L.Ed. 194 a similar question then is whether the Secre- showing justify must be made order tary through the exercise confinement within citizen in him the President discretion vested country. boundaries of this Dul- Kent v. delegated by Con- les, 357 U.S. at gress 211a to a restrict L.Ed.2d 1204. But travel is country with which the United States properly subject prohibi- to a reasonable diplomatic off broken relations. particular foreign tion on travel to a coun- try government which our believes to of our The conduct relations unfriendly sobe to this nation as to re- primary responsibility of nations is the quire diplomatic the severance of rela- v. Curtiss- the President. United States regard plain- tions with it. do not Wright Export Corp., supra. particu- ihe In tiff’s see himself lar, pow- what was the the President has exclusive happening in recognize Cuba to be so a exalted a er to determine to whether subj^Aed nature that it cannot foreign government to re- to in- and whether during period straint a diplomatic when the State relations. itiate and maintain Department predicts 203, that such Pink, travel 62 v. 315 U.S. might provoke international incidents (1942). is 86 L.Ed. 796 This S.Ct. negotiations, which would Dulles, necessitate see not a like Kent v. where the case 22 (1958), govern- U.S.C. 1732 with a passports § citizens were denied to certain ment whose existence the United States because of and associations. their beliefs ignore. designates to parts committed it certain the Rather travel- world forbidden to all American plaintiff’s It remains to consider claim regarded hardly can as ar- ers. This prosecu- that 1185 does not § authorize bitrary capricious plaintiff. tion for violation of an area restriction Elg, v. 307 59 Cf. Perkins passport. Apart in contained a from the (1939). 884, 83 L.Ed. 1320 It re- S.Ct. Secretary expressly fact dis- security, not to internal but to for- lates upon it, claims reliance statute eign affairs. solely imposition concerned with the passport violations, plaintiff’s pass- sanctions for to The refusal validate port does not to dis- to Cuba to an undertake create travel relates ex- qualification limitations. Briehl to conduct ercise Dulles, U.S.App.D.C. 239, F.2d 101 248 affairs al- Chief Executive (dissenting ready (D.C.Cir. 1957) 581 has and is within discre- well given opinion Bazelon, J.), Secretary by nom. sub to rev’d the Presi- Dulles, amply pub- reasons Kent v. 359 U.S. dent. The sufficient (1958). promul- 2 L.Ed.2d 1204 Since for the lished gation regulation question is a which curtails area restriction right regulation plaintiff’s plaintiff’s of the to travel to Cuba reasonable starkly gov- right travel, plaintiff’s emphasized to inter- when this were having to est in statute construed ernment confronted the Soviet Union recognize passports to American fused he violate valid determine whether magis- being risking local that were issued sanctions without restriction entry depar- no imposes and officials. At that trates time which 1185 abroad, contrary port was travel from the United States ture Congress hardly this Statute provisions. intended This is not sufficient its require restrict authorize the Executive a construction interest pro- Boudin, travel. The Constitutional in a criminal See it is raised 1185 before Right Travel, ceeding. Pauling Eastland, 52- 56 Colum.L.Rev. 109 U.S. (1956); Comment, Passport (D.C.Cir.), Refusals App.D.C. cert, F.2d 126 supra; Note, Reasons, for Political denied, 364 U.S. Assoc, Corn.L.Q. also, ; (1960) See International 5 L.Ed.2d See Lines, City Y., Longshoremen’s Bar of of N. Freedom to Ass’n v. Seatrain (S.D.N.Y.1963), Inc., F.Supp. Travel 6-7 Immigration Section (2 grounds, of 1952 Act F.2d 916 rev’d entry designed 1964). and exit was control Cir. our over gency by borders time national emer- departure preventing arrival Judge SMITH, J. JOSEPH Circuit passport. without a valid dissenting part). (concurring part, Since the is constitu- Judge agree Clarie tionally grant protected, some clear judge jurisdiction, for the court three power to curtail it must exist before question sufficiently calls into case infringement constitutionality statutes relied upheld. put As Court it reg to sustain the the Executive Kent v. 78 S. embodying area restrictions ulations 1113, 1119-1120, 2 L.Ed.2d 1204 Ct. passports. 211a of If the issuance (1957): Passport 211a U.S.C. reg statute citea the sole “Since we start with exercise statutory basis, is construed ulations as by an of an American citizen activi- delegation of discre face value ty protec- in constitutional included impose tionary power Executive tion, readily we will not infer on the issuance restrictions Congress gave of State problem citizens, poses a to American unbridled discretion with- delegation, no for of there invalid dealing hold it. If were with we statutory language leg in the standards political questions to entrusted the prac history, or administrative islative Chief Executive the Constitution Comment, Passport Refusals for tice. a But we have different case. Issues Constitutional Political Reasons: part, is In there more involved here. Review, L.J. 61 Yale and Judicial course, the issuance the port implication of in- carries some diplo- However, find in to am unable to either tention extend the bearer though protection, Passport Act of 1926 or matic it no 211a of the does Immigration may ‘request and Nation- more than all whom it in 215 of the safely freely ality (1958), permit concern to Act of 8 U.S.C. § give pass, in to for the to and in case need basis the area restrictions protection’ regulations proclaimed all lawful aid and to this the De- State designed partment. But to citizen of the United act was States. Neither passport problem. present 211a that function of the sub- meet Section the today original pass- nearly ordinate. Its crucial function identical * * * (1856), port act, was is control exit. [T]he which over Stat. personal preserve proper respect for of exit is intended to ‘liberty’ by centralizing as cluded within the word American if that Fifth A used ‘liberty’ Amendment issuance the Federal Government. regulated, foreign governments it must is to be had re- number of law-making func- to State restrict to travel certain for- to * * * eign Congress. says And it areas. Rather that no citi- tions delegated, attempt power shall to zen or leave if enter [to be] adequate to United States in time must be of national standards emer- gency accepted passport. scrutiny without a pass tests.” valid It re- truly quires judicial feat of remarkable rights re- Where constitutional gymnastics to construe this statute nar- strained, requires that Dulles we Kent v. rowly grant power as to invalidate grant imply a broad be reluctant to passports for travel to certain countries. power implication from statutes pur- themselves did not designed clearly purpose. for the Hence port to be based on § 215. 211a and Court construed § narrowly grant majority I do not Executive the understand to to adopt only approach deny passport power to two District of Co- citizenship Appeals grounds: (1) proof Worthy lumbia Court of lack of Herter, allegiance U.S.App.D.C. 153, States and to F.2d cert, illegal (1959), (2) participation conduct. denied 361 U.S. say*with what- 4 L.Ed. can “We assurance which may power practice Secretary found the after ever have been impose July 3, 1926 to at the time the area restrictions inherent in adopted, plenary [211a], power was the eign administrative Executive’s over for- here, practice, implicitly so far as relevant had affairs. Kent Dulles re- categories jected jelled around the two men- the notion that the Executive had We, therefore, power tioned. im- inherent constitutional hesitate to curtail pute Congress, when 1952 made a individual freedom to abroad. travel If foreign passport existed, travel and such inherent what would its its be curtailed bounds ? Could left issuance the discretion travel France be give State, purpose if the Executive decided that foreign policy required him unbridled or with- discretion such curtailment impose any to sanctions from a because of hold a citizen DeGaulle’s recognition may so, recent Red China? If substantive reason he choose.” 357 easy pow- it is er how see “such at 2 L.Ed.2d executive increasing could, by number of na- If the statutes are to construed rights narrowly tions travel preserve excluded while individual. expanding excepted persons doubts, they class of and to avoid constitutional per- whom such nations is majority for mitted, them cannot be read as the read approach the absolute discretion- granting State the ary control over held without war- power to restrict travel certain rant Constitution the Kent de- areas substantive reason he Note, 1610,1611 cision.” 73 Harv.L.Rev. choose. adopts if Even the of the four one view suggest majority But the seem to that dissenters Kent v. Dulles—that the so intertwined with control legislative history predecessors of the foreign Congress must have affairs practice in- 215 and the administrative laneways Congressional legislated permit Executive “broad dicated intent to the the authority.” Secretary support Rather dubious to his exercise discre- sought deny passports proposition 22 this to those for to whose might requires endanger (1958), U.S.C. travel the internal secu- 1732 rity steps of war to short of the is no President to take United States—there imprison- finding to Cuba Zemel or secure the release Americans approach similarly endanger Still, abroad. the entire flies situated would ed those language security of Kent v. in the of the the internal Moreover, the United States. teeth enjoyment, says language activities Dulles—Where natural nothing necessary to the empowering well- and often about legislation citizen, making being as While an Sess. American travel, involved, it unlawful for will construe nar- members Communist we are organizations passports rowly delegated powers curtail to be issued all passed, 129, 78 been none of the bills in- them” 357 U.S. at several dilute years troduced recent to L.Ed.2d authorize area passports restrictions on has been enact- desirability pass do not here on the We g., Cong., ed. E. H.R. 85th 2nd I should on travel. of area restrictions Sess. Congress might justified in well be think pro- period legislation I of international tensions would hold that such authorizing necessary, cur- for duced the Cold War cannot be actively supported by existing statutes, of travel to an unfriend- tailment ly entirely power, by any un- It is herent nation such as Cuba. executive execu- agreement. pretend an end realistic to that there was tive if Even we assumed that emergency rights Korean constitutional because could be overridden Congress However, up agreement, Managua it is armistice. executive require April 3, to determine that conditions Resolution 1964 was not an through agreement. dilution of the freedom travel executive The ministers passport. present agreed only area Kore- restrictions See seven nations governments matsu v. United recommend to their adoption, S.Ct. Supreme where “within L.Ed. the limitations of their upheld respective provisions”, Court use of the war constitutional power discouragement of move- restrict the freedom restriction and of the Japanese origin ment citizens after movement of their national to Cuba. Congressional of “the determination Area restrictions gravest danger public desirable, imminent but should take the safety.” Flynn Rusk, F.Supp. responsibility authorizing Cf. for them after n (D.C.D.C.1963); Mayer Rusk, fact-finding inquiry. a full F.Supp. (on appeal (D.C.D.C.1963) Therefore, pres- I would hold that the Supreme Court, 746). Dkt. ent statutes do not authorize area re- problem yet Congress here is that as strictions on travel and that the Execu- has made no determination that there tive cannot restrict to travel overriding .an need area restrictions. specific statutory authority. without I After Court’s decision respectfully dissent from the denial Kent v. President Eisenhower declaratory judgment to that I effect. request special made a disapprove dissent not because I authorizing legislation sought by ends im- the area restrictions subject proce- :State, to substantive posed far, but thus because these restric- deny safeguards, passports dural tions on a whose are based claimed persons inimical whose travel vague limits undefined whose security relations specify. I cannot source impose and to restrictions States disagree, indicated, n IWhile with the the use of Americans view that area restrictions are au- presence areas where their thorized, declaratory and would might foreign policy objec- conflict with judgment they not, would dis- Special Message July 7, 1958, tives. against Attorney Cong.Rec. 11849, Cong. miss action as & U.S.Code Admin.News, p. Cong., premature. 2nd as at 85th General best

Case Details

Case Name: Zemel v. Rusk

Court Name: District Court, D. Connecticut

Date Published: Feb 20, 1964

Citation: 228 F. Supp. 65

Docket Number: 9549

Court Abbreviation: D. Conn.