Zemel v. Rusk

• Decision Date: 03 May 1965
• Docket Number: No. 86,86
• Citation: 85 S.Ct. 1271,381 U.S. 1,14 L.Ed.2d 179
• Parties: Louis ZEMEL, Appellant, v. Dean RUSK, Secretary of State, et al
• Court: U.S. Supreme Court

381 U.S. 1

85 S.Ct. 1271

14 L.Ed.2d 179

Louis ZEMEL, Appellant,

v Dean RUSK, Secretary of State, et al.

No. 86.

Argued March 1, 1965.

Decided May 3, 1965.

Rehearing Denied Oct. 11, 1965.

See 86 S.Ct. 17.

[Syllabus from pages 1-2 intentionally omitted]

Leonard B. Boudin, Washington D.C., for appellant.

Archibald Cox, Sol. Gen., for appellees.

Mr. Chief Justice WARREN delivered the opinion of the Court.

The questions for decision are whether the Secretary of State is statutorily authorized to refuse to validate passports of United States citizens for travel to Cuba, and, if he is, whether the exercise of that authority is constitutionally permissible. We answer both questions in the affirmative.

Prior to 1961 no passport was required for travel anywhere in the Western Hemisphere. On January 3 of that year, the United States broke diplomatic and consular relations with Cuba. On January 16 the Department of State eliminated Cuba from the area for which passports were not required, and declared all outstanding United States passports (except those held by persons already in Cuba) to be invalid for travel to or in Cuba 'unless specifically endorsed for such travel under the authority of the Secretary of State.' A companion press release stated that the Department contemplated granting exceptions to 'persons whose travel may be regarded as being in the best interests of the United States, such as newsmen or businessmen with previously established business interests.'

Through an exchange of letters in early 1962, appellant, a citizen of the United States and holder of an otherwise valid passport, applied to the State Department to have his passport validated for travel to Cuba as a tourist. His request was denied. On October 30, 1962, he renewed the request, stating that the purpose of the proposed trip was 'to satisfy my curiosity about the state of affairs in Cuba and to make me a better informed citizen.' The request again was denied, on the ground that the purpose of the trip did nto meet the previously prescribed standards for such travel.

On December 7, 1962, appellant instituted this suit against the Secretary of State and the Attorney General in the United States District Court for the District of Connecticut, seeking a judgment declaring: (1) that he was entitled under the Constitution and laws of the United States to travel to Cuba and to have his passport validated for that purpose; (2) that his travel to Cuba and the use of his passport for that purpose would not violate any statute, regulation, or passport restriction; (3) that the Secretary's restrictions upon travel to Cuba were invalid; (4) that the Passport Act of 1926 and § 215 of the Immigration and Nationality Act of 1952 were unconstitutional; (5) that the Secretary's refusal to grant him a passport valid for Cuba violated rights guaranteed him by the Constitution and the United Nations Declaration of Human Rights; and (6) that denial of the passport endorsement without a formal hearing violated his rights under the Fifth Amendment.¹ The complaint also requested that the Secretary be directed to validate appellant's passport for travel to Cuba and that the Secretary and the Attorney General be enjoined from interfering with such travel. In his amended complaint, appellant added to his constitutional attack on the 1926 and 1952 Acts a prayer that the Secretary and the Attorney General be enjoined from enforcing them.

On appellant's motion, and over the objection of appellees, a three-judge court was convened. On cross- motions for summary judgment, the court, by a divided vote, granted the Secretary of State's motion for summary judgment and dismissed the action against the Attorney General, 228 F.Supp. 65 (D.C.D.Conn.1964). We postponed consideration of the jurisdictional question to the hearing of the case on the merits, 379 U.S. 809, 85 S.Ct. 34, 13 L.Ed.2d 25.

I.

A direct appeal to this Court from a district court lies under 28 U.S.C. § 1253 (1958 ed.) only 'from an order granting or denying * * * an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of congress to be heard and determined by a district court of three judges.' Thus we must deal first with the Government's contention that a three-judge court was improperly convened, for if the contention is correct, this Court lacks jurisdiction over the appeal. Phillips v. United States, 312 U.S. 246, 248, 61 S.Ct. 480, 481, 85 L.Ed. 800.

Section 2282 of Title 28 of the United States Code requires the impanelling of a three-judge court in any case where the relief sought is '(a)n interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States * * *.' On its face, appellant's amended complaint, by calling upon the court below to enjoin the enforcement of the Passport Act of 1926 and § 215 of the Immigration and Nationality Act of 1952, on the ground that those statutes are unconstitutional, meets the requirements of § 2282. The Solicitor General notes that appellant would be accorded full relief by the voiding of the Secretary's order. It is true that appellant's argument—that either the Secretary's order is not supported by the authority granted him by Congress, or the statutes granting that authority are unconstitutional—is two-pronged. But we have often held that a litigant need not abandon his nonconstitutional arguments in order to obtain a three-judge court: 'The joining in the complaint of a nonconstitutional attack along with the constitutional one does not dispense with the necessity to convene such a court.'²

The Solicitor General, apparently conceding—as all three judges below agreed—that appellant's Fifth Amendment attack is substantial, cf. Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204; Aptheker v. Secretary of State, 378 U.S. 500, 505—506, 84 S.Ct. 1659, 1663—1664, 12 L.Ed.2d 992, argues that it is in reality an attack upon an administrative, as opposed to a legislative, policy, and therefore, under cases like Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800, and Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249, a three-judge court need not have been convened. We need not evaluate this contention, for appellant's complaint also attacks the 1926 and 1952 Acts on the ground that 'they contain no standards and are therefore an invalid delegation of legislative power.' This allegation cannot be brushed aside as an attack upon the actions of the Secretary; in arguing invalid delegation, appellant has quite clearly assailed the statutes themselves. The Solicitor General therefore meets the delegation argument on another ground: by labeling it 'frivolous.' Although we do not accept appellant's delegation argument, infra, pp. 17-18, we cannot agree that it is so insubstantial as to compel a district court to read it out of the complaint and refuse to convene a three-judge court. Compare William Jameson & Co. v. Morgenthau, 307 U.S. 171, 59 S.Ct. 804, 83 L.Ed. 1189; Schneider v. Rusk, 372 U.S. 224, 83 S.Ct. 621, 9 L.Ed.2d 695. Indeed, we explicitly noted in Kent v. Dulles, supra, 357 U.S. at 129, 78 S.Ct. at 1120 that if we had held that the Secretary's refusal to issue a passport to petitioner in that case was supported by the 1926 and 1952 Acts, we would then have been obliged to consider whether those Acts were void for invalid delegation.³

The complaint therefore launches a substantial constitutional attack upon two federal statutes, and prays that their operation be enjoined. Cf. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794. We hold that the three-judge court was properly convened, and that we therefore have jurisdiction over the appeal.⁴

II.

We think that the Passport Act of 1926, 44 Stat. 887, 22 U.S.C. § 211a (1958 ed.), embodies a grant of authority to the Executive to refuse to validate the passports of United States citizens for travel to Cuba. That Act provides, in pertinent part:

'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 * * *.'⁵

This provision is derived from § 23 of the Act of August 18, 1856, 11 Stat. 52, 60—61, which had, prior to 1926, been re-enacted several times without substantial change. The legislative history of the 1926 Act and its predecessors does not, it is true, affirmatively indicate an intention to authorize area restrictions. However, its language is surely broad enough to authorize area restrictions, and there is no legislative history indicating an intent to exclude such restrictions from the grant of authority; these factors take on added significance when viewed in light of the fact that during the decade preceding the passage of the Act, the Executive had imposed both peacetime and wartime area restrictions. As a result of a famine in Belgium in 1915, the State Department stopped issuing passports for use in that country except to 'applicants obliged to go thither by special exigency or authorized by Red Cross or Belgian Relief Commission.' III Hackworth, Digest of International Law, p. 526 (1942). Beginning December 9, 1914, and continuing through World War, I, passports were validated only for specific purposes and specific countries. No passports were issued for travel in Germany and Austria until July 18, 1922, and none for the Soviet Union until approximately September 1923. Hearings before the Senate Committee on Foreign Relations on Department of State Passport Policies, 85th Cong., 1st Sess., pp. 63—64. The use in the 1926 Act of language broad enough to permit executive imposition of area restrictions, after the Executive had several times in the recent past openly asserted the power to impose such restrictions under predecessor statutes...