Kent v. Dulles

• Decision Date: 16 June 1958
• Docket Number: No. 481,481
• Parties: Rockwell KENT and Walter Briehl, Petitioners, v. John Foster DULLES, Secretary of State
• Court: U.S. Supreme Court

357 U.S. 116

78 S.Ct. 1113

2 L.Ed.2d 1204

Rockwell KENT and Walter Briehl, Petitioners,

v John Foster DULLES, Secretary of State.

No. 481.

Argued April 10, 1958.

Decided June 16, 1958.

Mr. Leonard B. Boudin, New York City, for petitioners.

Mr. J. Lee Rankin, Sol. Gen., Washington, D.C., for respondent.

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 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 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 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 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, 248 F.2d 600; 101 U.S.App.D.C. 239, 248 F.2d 561. The cases are here on writ of certiorari. 355 U.S. 881, 78 S.Ct. 149, 2 L.Ed. 111.

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, 9 L.Ed. 276, 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 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 power; 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 re-entry into the United States. See Browder v. United States, 312 U.S. 335, 339, 61 S.Ct. 599, 602, 85 L.Ed. 862; 3 Moore, International Law Digest (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, 8 U.S.C.A. § 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 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, it made it illegal for a citizen to 'cross the frontier' into enemy territory, to board vessels of the enemy on waters of the United States or to visit any of his camps within the limits of the United States, 'without a passport first obtained' from the Secretary of State or other designated official. 3 Stat. 199—200. The Secretary of State took similar steps during the Civil War. See Dept. of State, The American Passport (1898), 50. In 1850 Congress ratified a treaty with Switzerland requiring passports from citizens of the two nations. 11 Stat. 587, 589—590. Finally in 1856 Congress enacted what remains today as our basic passport statute. Prior to that time various federal officials, state and local officials, and notaries public had undertaken to issue either certificates of citizenship or other documents in the nature of letters of introduction to foreign officials requesting treatment according to the usages of international law. By the Act of August 18, 1856, 11 Stat. 52, 60—61, 22 U.S.C. § 211a, 22 U.S.C.A. § 211a, Congress put an end to those practices.⁶ This provision, as codified by the Act of July 3, 1926, 44 Stat., Part 2, 887, reads,

'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, and no other person shall grant, issue, or verify such passports.'

Thus for most of our history a passport was not a condition to entry or exit.

It is true that, at intervals, a passport has been required for travel. Mention has already been made of the restrictions imposed during the War of 1812 and during the Civil War. A like restriction, which was the forerunner of that contained in the 1952 Act, was imposed by Congress in 1918.

The Act of May 22, 1918, 40 Stat. 559, made it unlawful, while a Presidential Proclamation was in force, for a citizen to leave or enter the United States 'unless he bears a valid passport.' See H.R.Rep. No. 485, 65th Cong., 2d Sess. That statute was invoked by Presidential Proclamation No. 1473 on August 8, 1918, 40 Stat. 1829, which continued in effect until March 3, 1921. 41 Stat. 1359.

The 1918 Act was effective only in wartime. It was amended in 1941 so that it could be invoked in the then-existing emergency. 55 Stat. 252. See S.Rep. No. 444, 77th Cong., 1st Sess. It was invoked by Presidential Proclamation. Proc. No. 2523, November 14, 1941, 55 Stat. 1696. That emergency continued until April 28, 1952. Proc. No. 2974, 66 Stat. C31, 50 U.S.C.A.Appendix, note preceding section 1. Congress extended the statutory provisions until April 1, 1953. 66 Stat. 54, 57, 96, 137, 330, 333. It was during this extension period that the Secretary of State issued the Regulations here complained...