MacEwan v. Rusk

• Decision Date: 20 April 1964
• Docket Number: Civ. A. No. 33038.
• Citation: 228 F. Supp. 306
• Parties: Alan M. MacEWAN and Mary G. MacEwan, Lincoln University, Pennsylvania, Plaintiffs, v. Dean RUSK, Secretary of State, Department of State, Washington, D. C., and Robert F. Kennedy, Attorney General, Washington, D. C., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

228 F. Supp. 306

Alan M. MacEWAN and Mary G. MacEwan, Lincoln University, Pennsylvania, Plaintiffs, v. Dean RUSK, Secretary of State, Department of State, Washington, D. C., and Robert F. Kennedy, Attorney General, Washington, D. C., Defendants.

Civ. A. No. 33038.

United States District Court E. D. Pennsylvania.

March 30, 1964.

Judgment April 20, 1964.

Leonard B. Boudin, of Rabinowitz & Boudin, New York City, for plaintiffs.

Benjamin C. Flanagan, Dept. of Justice, Washington, D. C., for defendants.

FREEDMAN, District Judge.

Plaintiffs seek a declaratory judgment which in effect would declare invalid regulations issued by the Secretary of State pursuant to which he has refused to endorse their passport for travel to and from Cuba.

Plaintiffs originally sought the invocation of a three-judge court pursuant to 28 U.S.C. § 2282, but they withdrew this request when the case was called for argument. They no longer seek to enjoin the enforcement or operation of any Act of Congress, but ask merely a judgment declaring that they may lawfully travel to Cuba without special validation of their passport. They have perhaps narrowed the scope of the remedy sought because present counsel had just argued the same questions in their widest form before a three-judge court convened in the District of Connecticut.¹ The case is before me on motions for summary judgment filed by the respective parties.

The problem presented falls into several broad categories. One is whether the President, acting by the Secretary of State, has inherent power to impose geographical restrictions upon travel by American citizens in furtherance of the President's authority in the conduct of foreign affairs. Another is whether, aside from inherent power, there is a statutory foundation for executive promulgation of geographical restrictions on travel abroad. Finally, there is the constitutional question of the extent to which the Government may interfere with travel abroad by its citizens.

I

I begin with the emphatic statement by the Supreme Court in Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L. Ed.2d 1204 (1958): "The right to travel is a part of the `liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment." (357 U.S. p. 125, 78 S.Ct. p. 1118, 2 L.Ed. 2d 1204). There is language in Kent v. Dulles that any regulation of such right "must be pursuant to the law-making functions of the Congress". (357 U.S. p. 129, 78 S.Ct. p. 1120, 2 L.Ed.2d 1204). Kent v. Dulles must be read, however, in the light of the question involved, a limitation which the Court itself was careful to point out. The opinion of the Court states, for example, that if it "were dealing with political questions entrusted to the Chief Executive by the Constitution we would have a different case". (357 U.S. p. 129, 78 S.Ct. p. 1120, 2 L.Ed. 2d 1204). The Secretary of State had sought in that case to curtail the right of travel because the applicants refused to permit inquiry into their beliefs and associations.

The present case is far removed from any restriction on a citizen's travel because of his beliefs or associations. The Secretary has not applied a test personal to the plaintiffs. He has enforced a geographical limitation applicable to everyone without regard to individual personality, beliefs or associations. The prohibition has been applied, not because the Secretary has found the plaintiffs to be personally ineligible, but rather because they seek to travel to an area which in a kind of in rem determination has been declared out of bounds for travel by Americans.

Under our constitutional system the President is empowered to conduct the foreign policy of the United States, and "the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations * * * does not require as a basis for its exercise an act of Congress * * *."² Congress has additionally imposed on the President the obligation to "use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release" of "any citizen of the United States who has been unjustly deprived of his liberty by or under the authority of any foreign government * * *." (22 U.S.C. § 1732). These powers and duties vested in the President justify his determination from time to time that particular areas of the globe are closed to travel by American citizens. There exist unfortunately numerous examples of areas now a flame with turmoil and violence. It would be a serious restriction of the presidential authority to conduct foreign affairs to deny to him and his authorized subordinates³ the power to prevent travel by curious citizens to countries where their presence might jeopardize the relations of the United States with foreign countries.

The constitutional right to travel, like all rights, is not unlimited in time and space or circumstance. It is surrounded by innumerable restrictions, and they may be governmental as well as personal and private. National interest may require that American citizens be excluded from a specified area at a particular time for their own protection as well as to prevent their interference with the proper conduct of American foreign policy. This is especially true in this era in which the line of distinction between war and peace has been blurred by the less conventional hostility of cold war. The vast scope of the interwoven military, economic and propaganda activities of the nations of the world in furtherance of their foreign policies, without any declaration of war, has expanded the field of presidential action to further American policy. Personal conduct is not inevitably deemed personal in every foreign nation. In totalitarian countries freedom of the press and of the individual is severely restricted, and those governments therefore cannot accept the notion that the conduct of individual American citizens on their soil does not necessarily reflect the policy of the American Government.

I agree with the decision of the Court of Appeals for the District of Columbia Circuit in Worthy v. Herter, 106 U.S. App.D.C. 153, 270 F.2d 905, cert. den., 361 U.S. 918, 80 S.Ct. 255, 4 L.Ed.2d 186 (1959), which upheld the power of the Secretary of State to refuse to issue a passport permitting a newspaperman to travel to mainland China. Judge Prettyman there said that "the designation of certain areas of the world as forbidden to American travelers falls within the power to conduct foreign affairs. The bare determination that certain areas outside this hemisphere are trouble spots, or danger zones, is a phase of `foreign affairs'. Such a determination involves information gleaned through diplomatic sources and channels, and a judgment premised in large part upon foreign policy. * * * The essence of the conduct of foreign affairs is the maintenance of peace, the prevention of war. The Constitution places that task of prevention in the hands of the Executive. The two correlative powers, to conduct war and to prevent war, are Executive functions under our Constitution.

"Of course the prevention of clashes with foreign governments embraces diplomatic negotiations with those governments. But, as a matter of hard, practical reality, it also involves restrictions upon acts of our own citizens which may reasonably be foreseen as breeding clashes. History establishes that either the behavior or the predicament of an individual citizen in a foreign country can bring into clash, peaceful or violent, the powers of his own government and those of the foreign power. * * * A blustering inquisitor avowing his own freedom to go and do as he pleases can throw the whole international neighborhood into turmoil. * * * The right here involved is not a right to think or speak; it is a right to be physically present in a certain place. The basis of the restriction is not personal but is the military and political situation in the designated areas." (270 F.2d pp. 910-913).

The reasonableness of restriction on travel to Cuba, if the inherent power exists, can hardly be questioned. Many expressions of hostility between the present government of Cuba and the United States have been made public, both before and after the breach of diplomatic relations between the two countries in January, 1961. The Cuban government has avowed its solidarity with world Communism and its fraternal relations with the Soviet Union and Communist China. Colossal and explosive problems confront the President in these circumstances. Tensions rose to unprecedented dimensions at the confrontation between the United States and the Soviet Union over the presence of missiles hidden in Cuba. For some days following the declaration of an embargo by the President of the United States the world lived in dread of the unleashing of a thermonuclear war in the immediate vicinity of the United States. The United States Government has since announced many times that it considers Cuba a continuing danger spot because of the ever present threat of the clandestine concealment or return of Soviet missiles. The United States has characterized Cuba as a training ground for agents of subversion who seek to undermine those governments in the southern hemisphere which are friendly to the United States. Our Government has joined with the governments of Latin America to devise means of isolating Cuba and dealing with its threat of Communist infiltration and subversion. Among these measures is the restriction of movement between free world countries and cuba.⁴ Thus the policy of the United States, reflected in congressional and executive action, recognizes the Cuban government, so close to us geographically, as an important and militant link in a movement aimed at the destruction of the influence of this country abroad and of its tranquility at home.

In these circumstances I hold that restriction on travel to Cuba...