Bauer v. Acheson

• Decision Date: 09 July 1952
• Docket Number: Civ. No. 743-52.
• Citation: 106 F. Supp. 445
• Parties: BAUER v. ACHESON, Secretary of State.
• Court: U.S. District Court — District of Columbia

106 F. Supp. 445

BAUER v. ACHESON, Secretary of State.

Civ. No. 743-52.

United States District Court District of Columbia.

July 9, 1952.

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Jack Wasserman, Washington, D. C., Herbert Monte Levy, New York City, of counsel, for plaintiff.

Charles M. Irelan, U. S. Atty. for the District of Columbia, Washington, D. C., Ross O'Donoghue, Asst. U. S. Atty. for the District of Columbia, Washington, D. C., for defendant.

Before FAHY, Circuit Judge, and KEECH and CURRAN, District Judges, sitting as a statutory three-judge court.

KEECH, District Judge.

This is an action against the Secretary of State for a declaratory judgment under 28 U.S.C. § 2201, for review under the Administrative Procedure Act, 5 U.S.C.A. § 1009, and for an injunction against denial of the plaintiff's right to a passport.

The material facts are undisputed.^* The plaintiff, a naturalized American citizen since 1944, is now in Paris, France, where she is working as a journalist. From 1944 to 1948 she was employed by the United States Government in the Office of War Information and with the Civil Censorship Division of the Military Government in Occupied Germany. In 1948 she travelled to France with a valid American passport, issued by the Secretary of State. This passport was thereafter extended to January 1, 1952. On June 4, 1951, the defendant, through his agents in Paris, without notice or hearing, revoked the plaintiff's passport and has since refused to revalidate or renew it, except amended so as to be valid only for return to the United States. The State Department has failed to give any reason for revocation or refusal to renew the plaintiff's passport, other than the statement that in the defendant's opinion "her activities are contrary to the best interests of the United States." The plaintiff has been informed by the State Department that her passport will be returned to her, validated only for return to the United States, when she has completed travel arrangements for such return.

The plaintiff contends that the Passport Act of 1918, as amended, 22 U.S.C.A. §§ 223-225, or that Act as construed and applied by the Secretary of State to authorize him to revoke a passport and deny renewal without a hearing and without notification as to the basis for revocation, is unconstitutional, in that it violates the due process clause of the Fifth Amendment and ex post facto and bill of attainder provisions, art. 1, § 9, of the Constitution. She asks a declaratory judgment that the revocation and refusal to renew her passport without a hearing or advising her of the specific basis for the revocation and refusal to renew, are null and void, and that she is entitled to a passport permitting her to return to the United States, to travel, and to remain abroad; and she further prays that the defendant be enjoined from continuing to deny such passport facilities to her without hearing or advising her of the basis for such denial. It is the position of the defendant that the issuance and revocation of passports are entirely in the realm of foreign affairs, and as such within the absolute discretion of the executive branch of the government, under its inherent power and under 22 U.S.C.A. § 211a.

In view of the important constitutional questions raised by the complaint, plaintiff's motion to convene a three-judge court, pursuant to 28 U.S.C. § 2282, was granted. This court, after full hearing and argument by respective counsel, has given careful consideration to the questions presented, and has concluded that the statute and regulations relating to the issuance, use, and revocation of passports are constitutional, in that they are susceptible of an interpretation which provides for due process.

The pertinent provision of law is 22 U.S.C.A. § 211a, which provides:

"The Secretary of State may grant and issue passports * * * under such rules as the President shall designate and prescribe for and on behalf of the United States, * * *."

Pursuant to this section the President issued Executive Order 7856, which includes the following regulations:

"§ 51.75. Refusal to issue passport. The Secretary of State is authorized in his discretion to refuse to issue a passport, to restrict a passport for use only in certain countries, to restrict it against use in certain countries, to withdraw or cancel a passport already issued, and to withdraw a passport for the purpose of restricting its validity or use in certain countries.

"§ 51.76. Violation of passport restrictions. Should a person to whom a passport has been issued knowingly use or attempt to use it in violation of the conditions or restrictions contained therein or of the provisions of the rules in this part, the protection of the United States may be withdrawn from him while he continues to reside abroad.

"§ 51.77. Secretary of State authorized to make passport regulations. The Secretary of State is authorized to make regulations on the subject of issuing, renewing, extending, amending, restricting, or withdrawing passports additional to the rules in this part and not inconsistent therewith."

Section 224 of 22 U.S.C.A. makes it unlawful when the United States is at war or during the existence of the national emergency proclaimed by the President on May 27, 1941, 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, and 22 U.S.C.A. § 225 prescribes a criminal penalty for violation of § 224. These sections have been continued in effect by subsequent legislation despite the President's proclamation of April 28, 1952, terminating the national emergency proclaimed May 27, 1941.

From the pleadings and argument of counsel, it is clear that plaintiff basically is attacking the constitutionality of § 211a. Collaterally, plaintiff refers to the other sections. Hence, if there be a substantial constitutional question, as we hold there is, the action is a proper one for determination by a three-judge court under 28 U.S. C. § 2282.

It is clear that the authority to issue passports necessarily implies authority also to regulate their use and to withdraw them. The particular questions for inquiry in this case are whether a person who has received a passport may have it summarily revoked, during the period for which it was valid, without prior notice or opportunity for a hearing and on the bald statement that "her activities are contrary to the best interests of the United States," and whether the Secretary of State may refuse to renew such passport on the same statement.

It is the contention of the defendant that a passport is a purely political document addressed to foreign powers,¹ and that since a passport is in the realm of foreign affairs its issuance or denial is a political matter, entirely in the discretion of the Secretary of State and not subject to judicial review. It is true that the conduct of foreign affairs is a political matter within the discretion of the executive and legislative branches of the government, and that the courts recognize the plenary power of the President and of the Congress, singly or in combination, to perform acts peculiarly within the realm of political affairs without judicial interference.² There is, however, the recognized limitation on the power of the political departments of the government that their acts must be within the Constitution and not in conflict with any provision thereof.³

The plaintiff contends that the denial of a passport to her is in violation of the bill of attainder and ex post facto provisions of the Constitution.

"A bill of attainder is a legislative act which inflicts punishment without a judicial trial."⁴

Ex post facto laws are classified in Calder v. Bull, 3 Dall. 386, 390, 3 U.S. 386, 390, 1 L.Ed. 648, as:

"1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.

"2d. Every law that aggravates a crime or makes it greater than it was when committed.

"3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.

"4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender." This definition has been repeatedly approved.

Neither the statute nor the regulation here involved is on its face a bill of attainder or an ex post facto law. It is true that these constitutional prohibitions are not limited to punishment by criminal penalty. A bill of attainder includes any legislative act which takes away the life, liberty, or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment;⁵ and an ex post facto law is a statute which "`in its relation to the offense, or its consequences, alters the situation of the accused to his disadvantage.'"⁶ But a statute which makes the right to engage in some activity in the future depend upon past behavior, even behavior before the passage of the regulatory act, is not invalid as a bill of attainder or ex post facto law if the statute is a bona fide regulation of an activity which the legislature has power to regulate and the past conduct indicates unfitness to participate in the activity.⁷ It is possible that by arbitrary administration the statute and regulation here attacked might be made to partake of the nature of a bill of attainder or ex post facto law, but such application is not inherent. Since they are susceptible of a constitutional interpretation, the court must construe the statute and regulations as constitutional.⁸

The plaintiff's contention that § 211a is in violation of her rights under the due process clause of the Fifth Amendment of the Constitution raises a more serious problem.

The Fifth...