357 U.S. 116 (1958), 481, Kent v. Dulles

Docket Nº:No. 481
Citation:357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204
Party Name:Kent v. Dulles
Case Date:June 16, 1958
Court:United States Supreme Court

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357 U.S. 116 (1958)

78 S.Ct. 1113, 2 L.Ed.2d 1204




No. 481

United States Supreme Court

June 16, 1958

Argued April 10, 1958




At a time when an Act of Congress required a passport for foreign travel by citizens if a state of national emergency had been declared by the President, and when the Proclamation necessary to make the Act effective had been made, the Secretary of State denied passports to petitioners because of their alleged Communistic beliefs and associations and their refusal to file affidavits concerning present or past membership in the Communist Party.

Held: The Secretary was not authorized to deny the passports for these reasons under the Act of July 3, 1926, 22 U.S.C. § 211a, or § 215 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1185. Pp. 117-130.

(a) The right to travel is a part of the "liberty" of which a citizen cannot be deprived without due process of law under the Fifth Amendment. Pp. 125-127.

(b) The broad power of the Secretary under 22 U.S.C. § 211a to issue passports, which has long been considered "discretionary," has been construed generally to authorize the refusal of a passport only when the applicant (1) is not a citizen or a person owing allegiance to the United States, or (2) was engaging in criminal or unlawful conduct. Pp. 124-125, 127-128.

(c) This Court hesitates to impute to Congress, when, in 1952, it made a passport necessary for foreign travel and left its issuance to the discretion of the Secretary of State, a purpose to give him unbridled discretion to withhold a passport from a citizen for any substantive reason he may choose. P. 128.

(d) No question concerning the exercise of the war power is involved in this case. P. 128.

(e) If a citizen's liberty to travel is to be regulated, it must be pursuant to the lawmaking functions of Congress, any delegation of the power must be subject to adequate standards, and such delegated authority will be narrowly construed. P. 129.

(f) The Act of July 3, 1926, 22 U.S.C. § 211a, and § 215 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1185, do not delegate to the Secretary authority to withhold passports to

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citizens because of their beliefs or associations, and any Act of Congress purporting to do so would raise grave constitutional questions. Pp. 129-130.

(g) The only Act of Congress expressly curtailing the movement of Communists across our borders, §§ 2 and 6 of the Internal Security Act of 1950, has not yet become effective, because the Communist Party has not registered under that Act, and there is not in effect a final order of the Board requiring it to do so. P. 121, n. 3, p. 130.

101 U.S.App.D.C. 278, 239, 248 F.2d 600, 561, reversed.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

This case concerns two applications for passports, denied by the Secretary of State. One was by Rockwell Kent, who desired to visit England and attend a meeting of an organization known as the "World Council of Peace" in Helsinki, Finland. The Director of the Passport Office informed Kent that issuance of a passport was precluded by § 51.135 of the Regulations promulgated by the Secretary of State on two grounds:1 (1) that he was a

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Communist and (2) that he had had "a consistent and prolonged adherence to the Communist Party line." The letter of denial specified in some detail the facts on which those conclusions were based. Kent was also advised of his right to an informal hearing under § 51.137 of the Regulations. But he was also told that, whether or not a hearing was requested, it would be necessary, before a passport would be issued, to submit an affidavit as to whether he was then or ever had been a Communist.2 Kent did not ask for a hearing, but filed a new passport application listing several European countries he desired to visit. When advised that a hearing was still available to him, his attorney replied that Kent took the position

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that the requirement of an affidavit concerning Communist Party membership "is unlawful, and that, for that reason and as a matter of conscience," he would not supply one. He did, however, have a hearing at which the principal evidence against him was from his book It's Me O Lord, which Kent agreed was accurate. He again refused to submit the affidavit, maintaining that any matters unrelated to the question of his citizenship were irrelevant to the Department's consideration of his application. The Department advised him that no further consideration of his application would be given until he satisfied the requirements of the Regulations.

Thereupon, Kent sued in the District Court for declaratory relief. The District Court granted summary judgment for respondent. On appeal, the case of Kent was heard with that of Dr. Walter Briehl, a psychiatrist. When Briehl applied for a passport, the Director of the [78 S.Ct. 1115] Passport Office asked him to supply the affidavit covering membership in the Communist Party. Briehl, like Kent, refused. The Director then tentatively disapproved the application on the following grounds:

In your case, it has been alleged that you were a Communist. Specifically, it is alleged that you were a member of the Los Angeles County Communist Party; that you were a member of the Bookshop Association, St. Louis, Missouri; that you held Communist Party meetings; that, in 1936 and 1941, you contributed articles to the Communist Publication "Social Work Today"; that, in 1939, 1940, and 1941, you were a sponsor to raise funds for veterans of the Abraham Lincoln Brigade in calling on the President of the United States by a petition to defend the rights of the Communist Party and its members; that you contributed to the Civil Rights Congress bail fund to be used in raising bail on behalf of convicted Communist leaders in New York City; that

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you were a member of the Hollywood Arts, Sciences and Professions Council and a contact of the Los Angeles Committee for Protection of Foreign Born and a contact of the Freedom Stage, Incorporated.

The Director advised Briehl of his right to a hearing, but stated that, whether or not a hearing was held, an affidavit concerning membership in the Communist Party would be necessary. Briehl asked for a hearing, and one was held. At that hearing, he raised three objections: (1) that his "political affiliations" were irrelevant to his right to a passport; (2) that "every American citizen has the right to travel regardless of politics", and (3) that the burden was on the Department to prove illegal activities by Briehl. Briehl persisted in his refusal to supply the affidavit. Because of that refusal, Briehl was advised that the Board of Passport Appeals could not, under the Regulations, entertain an appeal.

Briehl filed his complaint in the District Court, which held that his case was indistinguishable from Kent's, and dismissed the complaint.

The Court of Appeals heard the two cases en banc, and affirmed the District Court by a divided vote. 101 U.S.App.D.C. 278, 239, 248 F.2d 600, 561. The cases are here on writ of certiorari. 355 U.S. 881.

The Court first noted the function that the passport performed in American law in the case of Urtetiqui v. D'Arbel, 9 Pet. 692, 699, decided in 1835:

There is no law of the United States in any manner regulating the issuing of passports or directing upon what evidence it may be done or declaring their legal effect. It is understood, as matter of practice, that some evidence of citizenship is required by the secretary of state before issuing a passport. This, however, is entirely discretionary

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with him. No inquiry is instituted by him to ascertain the fact of citizenship, or any proceedings had, that will in any manner bear the character of a judicial inquiry. 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.

A passport not only is of great value -- indeed necessary -- abroad; it is also an aid in establishing citizenship for purposes of reentry into the United States. See Browder v. United States, 312 U.S. 335, 339; 3 Moore, Digest of International Law (1906), § 512. But throughout most of our history -- until indeed quite recently -- a passport, though a great convenience in foreign travel, was not a legal requirement for leaving or entering the United States. See Jaffe, The Right to Travel: The Passport Problem, 35 Foreign Affairs 17. Apart from minor exceptions to be noted, it was first3 made a requirement by § 215 of the Act of June 27, 1952, 66 Stat. 190, 8 U.S.C. § 1185, which states that, after a prescribed proclamation by the President, it is

unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United

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States unless he bears a valid passport.4

And the Proclamation necessary to make the restrictions of this Act applicable and in force has been made.5

Prior to 1952, there were numerous laws enacted by Congress regulating passports, and many decisions, rulings, and regulations by the Executive Department concerning them. Thus, in 1803, Congress made it unlawful for an official knowingly to issue a passport to an alien certifying that he is a citizen. 2 Stat. 205. In 1815, just prior to the termination of the War of 1812,...

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