Shachtman v. Dulles

• Decision Date: 23 June 1955
• Docket Number: No. 12406.,12406.
• Citation: 225 F.2d 938
• Parties: Max SHACHTMAN, Appellant, v. John Foster DULLES, Individually and as Secretary of State, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

225 F.2d 938 (1955)

Max SHACHTMAN, Appellant, v. John Foster DULLES, Individually and as Secretary of State, et al., Appellees.

No. 12406.

United States Court of Appeals District of Columbia Circuit.

Argued February 23, 1955.

Decided June 23, 1955.

Mr. Joseph L. Rauh, Jr., Washington, D. C., with whom Messrs. Daniel H. Pollitt and Mitchell J. Cooper, Washington, D. C., were on the brief, for appellant.

Mr. Harold H. Greene, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., and Lewis Carroll and Joseph M. F. Ryan, Jr., Asst. U. S. Attys., were on the brief, for appellees.

Before EDGERTON, FAHY, and WASHINGTON, Circuit Judges.

FAHY, Circuit Judge.

Appellant sued in the District Court to enjoin the Secretary of State¹ from denying, for the reason assigned by the Secretary, his application for a passport to visit Europe, and for a declaratory judgment. His complaint was dismissed on motion, the court holding that it failed to state a claim upon which relief could be granted and that since the denial was in the proper exercise of the Secretary's discretion the court lacked jurisdiction. Appellant does not ask that the Secretary be required by the court to issue the passport. He seeks in this court only a ruling to the effect that the denial thus far has been on a ground that is legally insufficient. This position assumes that the discretion residing in the Secretary, see 44 Stat. 887, 22 U.S. C.A. § 211a, is subject in its exercise to some judicial scrutiny. We agree. The courts by reason of the Constitution have a responsibility in the matter although a limited one.

In the statute referred to Congress has placed the issuance of passports in the hands of the Secretary under rules prescribed by the President. These provide, "The Secretary of State is authorized in his discretion to refuse to issue a passport". 22 CFR § 51.75 (1949). However, in Perkins v. Elg, 307 U.S. 325, 349-350, 59 S.Ct. 884, 83 L.Ed. 1320, the Supreme Court, while stating that the Court's action would not interfere with the Secretary's discretion, precluded denial of a passport for the asserted reason that the applicant had lost her American citizenship, when she had not done so. Though that case factually is not like this one, it nevertheless shows that the subject of passports is not entirely beyond judicial assistance. And this is so notwithstanding the relation of the subject to the Executive's power over the conduct of foreign affairs, for it too, "like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 221, 81 L.Ed. 255; Bauer v. Acheson, D.C.D.C., 106 F.Supp. 445, 451.²

Is there a provision of the Constitution applicable to the present situation? In answering this we bear in mind that the issuance of a passport is not a purely political matter. If it were it would be a non-justiciable one. In other words, a passport is no longer a document "purporting only to be a request, that the bearer of it may pass safely and freely"; it is no longer "to be considered rather in the character of a political document, by which the bearer is recognised, in foreign countries, as an American citizen * * *", Urtetiqui v. D'Arcy, 9 Pet. 692, 699, 34 U.S. 692, 698, 9 L.Ed. 276. This description parallels early rulings of Secretaries of State, opinions of Attorneys General, texts and other court decisions, which have recognized a great breadth of Executive authority and discretion.³

We do not suggest that a passport is no longer a political document, or that its issuance is not allied to, and at times a part of, the conduct of foreign affairs, see Communist Party of U. S. A. v. Subversive Activities Control Board, 96 U.S.App.D.C. ___, 223 F.2d 531; but only that it is not merely of this character. For it is now, in addition, a document which is essential to the lawful departure of an American citizen for Europe. Regulations now in effect and authorized by Congress so provide.⁴ Earlier in our history, except, e. g., during the War between the Sections, this was not the case. It was then a desirable incident to travel, not a necessity, and was granted more or less at the pleasure of the Executive. See Gillars v. United States, 87 U.S.App.D.C. 16, 35, 182 F.2d 962, 981. Now it is unlawful for a citizen to travel to Europe and impossible to enter European countries without a passport. See n. 4, supra.

The denial of a passport accordingly causes a deprivation of liberty that a citizen otherwise would have. The right to travel, to go from place to place as the means of transportation permit, is a natural right subject to the rights of others and to reasonable regulation under law. A restraint imposed by the Government of the United States upon this liberty, therefore, must conform with the provision of the Fifth Amendment that "No person shall be * * * deprived of * * * liberty * * * without due process of law".

It is not procedural due process that is involved in the case as now presented. There is no complaint the Secretary has failed to disclose the reason for his denial of the passport. Furthermore, a hearing of a sort was granted appellant.⁵ He was at least given an opportunity to state informally to an official of the Department the matters on which he relied in rebuttal of the reason given by the Department for refusing him a passport. Cf. Bauer v. Acheson, supra; Nathan v. Dulles, D.C. D.C., 129 F.Supp. 951. What is involved at the present stage is a question of substantive due process — whether the refusal for the reason given, as alleged in the complaint and undisputed thus far by the Secretary, was arbitrary. If so, it is not a valid foundation for the denial, for the Government may not arbitrarily restrain the liberty of a citizen to travel to Europe. Discretionary power does not carry with it the right to its arbitrary exercise. Otherwise the existence of the power itself would encounter grave constitutional doubts. See Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U.S. 437, 453, 75 S.Ct. 488.

What is arbitrary, however, in the sense of constituting a denial of due process, depends upon circumstances. Moyer v. Peabody, 212 U.S. 78, 84, 29 S.Ct. 235, 53 L.Ed. 410; Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. Restraint upon travel abroad might be reasonable during an emergency though in normal times it would be arbitrary. World conditions, and those in particular areas, as to which the Executive has special information and on the basis of which he is especially qualified to make decisions, bear upon the question. For reasons thus suggested the issuance of passports throughout our history has been left to the judgment of the Secretary of State under Presidential regulation, and is subject only to constitutional safeguards. And even these must be defined with cautious regard for the responsibility of the Executive in the conduct of foreign affairs.⁶

The appellant's own statement in the complaint of the reason he was refused a passport must be taken as true in the present posture of the case, for the Secretary has not answered the complaint. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. We must take it as true, then, that appellant was first notified of tentative disapproval because of information he was Chairman of the Independent Socialist League, which the Secretary understood had been classified by the Attorney General⁷ as both subversive and Communistic, although it appeared to the Secretary the organization had no direct connection with the Communist International. The Secretary also notified appellant that the Department had been advised that the League's publication described the organization as an "organ of revolutionary Marxism". At the hearing granted appellant by the Department of State, he testified the League was anti-Stalinist, anti-totalitarian, opposed to violence as a means of solving political, social and economic problems, and that he and the League believed in and strove for the establishment of a socialist economic system by democratic means. He explained that the decription of the organ above referred to meant only that the League and he stood for a thorough-going reorganization of the economic and social foundations of society but used the term "revolutionary" with reference to the result rather than the means of achieving it. At the hearing he said the League advocated the formation by the labor movement of a labor party similar to the Labor Party of Great Britain. The complaint further alleges that the League has never had any international affiliations; that appellant desired a passport solely for the purpose of consulting people in Europe whose knowledge of political conditions he respected, and observing those conditions in order to acquire material for his work of writing and lecturing; that he had no intention of engaging in any political activity abroad, and would not engage there in activities which would violate the laws of, reflect upon or embarrass, the United States.

The complaint then alleges that the passport was subsequently denied in a letter to appellant in which the Department stated that despite the fact that the League had no connection with the Communist International and was hostile thereto, the Department felt that it would be contrary to the best interests of the United States to grant passport facilities to the actual head of an organization which had been classified by the Attorney General as subversive, especially when he desired to travel abroad on behalf of the organization, adding that should there be a change in the classification by the Attorney General the Department would then give further consideration to the question. The wording of the Department's letter indicates that the listing of the League as Communistic was no...