Haig v. Agee, 80-83
| Decision Date | 29 June 1981 |
| Docket Number | No. 80-83,80-83 |
| Citation | 453 U.S. 280,101 S.Ct. 2766,69 L.Ed.2d 640 |
| Parties | Alexander M. HAIG, Jr., Secretary of State of the United States, Petitioner, v. Philip AGEE |
| Court | U.S. Supreme Court |
Respondent, an American citizen and a former employee of the Central Intelligence Agency, announced a campaign "to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating." He then engaged in activities abroad that have resulted in identifications of alleged undercover CIA agents and intelligence sources in foreign countries. Because of these activities the Secretary of State revoked respondent's passport, explaining that the revocation was based on a regulation authorizing revocation of a passport where the Secretary determines that an American citizen's activities abroad "are causing or likely to cause serious damage to the national security or the foreign policy of the United States." The notice also advised respondent of his right to an administrative hearing. Respondent filed suit against the Secretary in Federal District Court, seeking declaratory and injunctive relief and alleging that the regulation invoked by the Secretary has not been authorized by Congress and is impermissibly overbroad; that the passport revocation violated respondent's freedom to travel and his First Amendment right to criticize Government policies; and that the failure to accord him a prerevocation hearing violated his Fifth Amendment right to procedural due process. Granting summary judgment for respondent and ordering the Secretary to restore respondent's passport, the District Court held that the regulation exceeded the Secretary's power under the Passport Act of 1926, which authorizes the Secretary to "grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States . . . under such rules as the President shall designate and prescribe. . . ." The Court of Appeals affirmed, holding that the Secretary was required to show that Congress has authorized the regulation either by an express delegation or by implied approval of a "substantial and consistent" administrative practice, and that no such authority had been shown.
Held: The 1926 Act authorizes the revocation of respondent's passport pursuant to the policy announced by the challenged regulation, such policy being "sufficiently substantial and consistent" to compel the conclusion that Congress has approved it; and the regulation is constitutional as applied. Pp. 289-310.
(a) Although the Act does not in express terms authorize the Secretary to revoke a passport or deny a passport application, neither does it expressly limit those powers. It is beyond dispute that he has the power to deny a passport for reasons not specified in the statutes, and, as respondent concedes, if the Secretary may deny a passport application for a certain reason, he may revoke a passport on the same ground. Pp. 289-291.
(b) In light of the broad rulemaking authority granted in the Act, the consistent administrative construction of it must be followed by the courts, absent compelling indications that such construction is wrong. This is especially so in light of the fact that the statute deals with foreign policy and national security, where congressional silence is not to be equated with disapproval. Pp. 291-292.
(c) Absent evidence of any legislative intent to repudiate the consistent administrative construction of the prior and similar 1856 Passport Act as preserving the nonstatutory authority of the President and Secretary to withhold passports on national security and foreign policy grounds, it must be concluded that Congress in enacting the 1926 Act adopted such construction. Moreover, the Executive has consistently construed the 1926 Act to work no change in prior practice. Pp. 292-300.
(d) A 1978 statute making it unlawful to travel abroad without a passport even in peacetime and a 1978 amendment to the 1926 Act providing that "[u]nless authorized by law," in the absence of war armed hostilities, or imminent danger to travelers, a passport may not be geographically restricted, are weighty evidence of congressional approval of the Secretary's interpretation of his authority to revoke passports, particularly as set forth in the challenged regulation. Pp. 300-301.
(e) An administrative policy or practice may be consistent even though the occasions for invoking it are limited. Although a pattern of actual enforcement is one indicator of Executive policy, it suffices that the Executive has openly asserted the power at issue. Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204, distinguished. Pp. 301-303.
(f) The protection accorded belief standing alone is very different from the protection accorded conduct. Here, beliefs and speech are only part of respondent's campaign, which presents a serious danger to American officials abroad and to the national security. Pp. 304-306.
(g) In light of the express language in the challenged regulation which permits revocation of a passport only in cases involving likelihood of "serious damage" to national security or foreign policy, respondent's constitutional claims are without merit. The right to hold a passport is subordinate to national security and foreign policy considerations, and is subject to reasonable governmental regulation. Assuming arguendo that First Amendment protections reach beyond our national boundaries, respondent's First Amendment claim is without foundation. See Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357. To the extent the revocation of respondent's passport operates to inhibit him, it is an inhibition of action, rather than of speech. And on the record of this case, the Government is not required to hold a prerevocation hearing, since where there is a substantial likelihood of "serious damage" to national security or foreign policy as the result of a passport holder's activities abroad, the Government may take action to ensure that the holder may not exploit the United States' sponsorship of his travels. The Constitution's due process guarantees call for no more than what was accorded here: a statement of reasons and an opportunity for a prompt postrevocation hearing. Pp. 306-310.
203 U.S.App.D.C. 46, 629 F.2d 80, reversed and remanded.
Sol. Gen. Wade H. McCree, Jr., Washington, D.C., for petitioner.
Melvin L. Wulf, New York City, for respondent.
The question presented is whether the President, acting through the Secretary of State, has authority to revoke a passport on the ground that the holder's activities in foreign countries are causing or are likely to cause serious damage to the national security or foreign policy of the United States.
Philip Agee, an American citizen, currently resides in West Germany.1 From 1957 to 1968, he was employed by the Central Intelligence Agency. He held key positions in the division of the Agency that is responsible for covert intelligence gathering in foreign countries. In the course of his duties at the Agency, Agee received training in clandestine operations, including the methods used to protect the identities of intelligence employees and sources of the United States overseas. He served in undercover assignments abroad and came to know many Government employees and other persons supplying information to the United States. The relationships of many of these people to our Government are highly confidential; many are still engaged in intelligence gathering.
In 1974, Agee called a press conference in London to announce his "campaign to fight the United States CIA wherever it is operating. He declared his intent "to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating." 2 Since 1974, Agee has, by his own assertion, devoted consistent effort to that program, and he has traveled extensively in other countries in order to carry it out. To identify CIA personnel in a particular country, Agee goes to the target country and consults sources in local diplomatic circles whom he knows from his prior service in the United States Government. He recruits collaborators and trains them in clandestine techniques designed to expose the "cover" of CIA employees and sources. Agee and his collaborators have repeatedly and publicly identified individuals and organizations located in foreign countries as undercover CIA agents, employees, or sources.3 The record reveals that the identifications divulge classified information,4 violate Agee's express contract not to make any public statements about Agency matters without prior clearance by the Agency,5 have prej- udiced the ability of the United States to obtain intelligence,6 and have been followed by episodes of violence against the persons and organizations identified.7 In December 1979, the Secretary of State revoked Agee's passport and delivered an explanatory notice to Agee in West Germany. The notice states in part:
...
To continue reading
Request your trial
-
WEST VIRGINIA ASS'N OF COM. HEALTH v. Sullivan
...2856, 2867, 77 L.Ed.2d 443 (1983) (citing Bob Jones Univ., 461 U.S. at 559-602, 103 S.Ct. at 2032-33; Haig v. Agee, 453 U.S. 280, 291-300, 101 S.Ct. 2766, 2773-78, 69 L.Ed.2d 640 (1981)). Accordingly, Congress' failure to act is accorded little weight in determining whether the new regulati......
-
Mohamed v. Holder
...3026, 82 L.Ed.2d 171 (1984) (upholding regulations "preventing travel to Cuba by most American citizens"); Haig v. Agee , 453 U.S. 280, 293, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) ("The history of passport controls since the earliest days of the Republic shows congressional recognition of Ex......
-
Global Relief Foundation, Inc. v. O'Neill
...made by the Congress or the President in matters involving foreign affairs or national security. See Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) ("Matters intimately related to foreign policy and national security are rarely proper subjects for judicial interventi......
-
Carmichael v. Pompeo, Civil Action No. 19-2316 (RC)
...the fiscal and administrative burdens that [an] additional or substitute procedural requirement would entail." Id. at 335, 96 S.Ct. 893.In Haig v. Agee , the Supreme Court concluded that a passport holder received adequate due process when he received notice as to why his passport was being......
-
Insights Volume 9 Number 5: Updates & Other Tidbits
...of State, 378 U.S. 500 (1964); Shelton v. Tucker, 364 U.S. 479, 488 (1960). 4. Califano v. Aznavorian, 439 U.S. 170 (1978); Haig v. Agee, 453 U.S. 280 (1981); Regan v. Wald, 468 U.S. 222 5. The rational-basis standard is the lowest of the three standards that must be met by the government w......
-
International Climate Action Without Congress: Does §115 of the Clean Air Act Provide Sufficient Authority?
...agreement. Presidents have occasionally argued otherwise, 26 and have con- 19. 453 U.S. 654 (1981). 20. Id. at 678 (citing Haig v. Aigee, 453 U.S. 280, 291 (1981)) (internal formatting omitted). 21. Id. 22. See id. at 680 (“Crucial to our decision today is the conclusion that Congress has i......
-
Gutting Bivens: How the Supreme Court Shielded Federal Officials from Constitutional Litigation.
...mere citation to a national-security-related statute, without more, allows the it to deny an immigrant's visa application); Haig v. Agee, 453 U.S. 280, 306-10 (1981) (allowing the Executive Branch to revoke an American citizen's passport because of alleged, but by no means proven, "national......
-
Head of state immunity as sole executive lawmaking.
...the particular problem to which Congress was responding when it enacted the FSIA." (footnote omitted)). (321.) See, e.g., Haig v. Agee, 453 U.S. 280, 300 (1981) ("[C]ongressional acquiescence may sometimes be found from nothing more than silence in the face of an administrative policy."); U......
-
Funding 'Non-Traditional' Military Operations: The Alluring Myth of a Presidential Power of the Purse
...are consistent with broad statutory charters and in which Congress does not object. See Regan v. Wald, 468 U.S. 222 (1984); Haig v. Agee, 453 U.S. 280 (1981); Zemel v. Rusk, 381 U.S. 1 (1965). Conversely, when Congress enacts legislation the President is bound by it even if it touches forei......