After this country had broken diplomatic relations with Cuba and
the Department of State had eliminated Cuba from the area for which
passports were not required, appellant applied to have his passport
validated for travel to Cuba "to satisfy [his] curiosity . . . and
to make [him] a better informed citizen." His request was denied,
and he filed suit in federal district court seeking a judgment
declaring 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, that the Secretary of State's travel
restrictions were invalid, and that the Passport Act of 1926 and §
215 of the Immigration and Nationality Act of 1952 were
unconstitutional. In addition, he prayed that the Secretary and the
Attorney General he enjoined from interfering with such travel. A
three-judge court granted the Secretary's motion for summary
judgment and dismissed the action against the Attorney General.
1. Since the complaint launched a substantial constitutional
attack upon two federal statutes and prayed that their operation be
enjoined, the three-judge court was properly convened. Pp.
381 U. S. 5
2. The Passport Act of 1926 grants authority to the Executive to
refuse validation of passports for Cuban travel. Pp. 381 U. S.
(a) The consistent interpretation by the Department of State of
its authority to impose area restrictions, both before and
Page 381 U. S. 2
the 1926 enactment, must be given weight by the courts in
construing the statute. Pp. 381 U. S.
(b) In 1952, Congress enacted legislation relating to passports,
but, despite the many executive impositions of area restrictions,
it left untouched the broad rulemaking authority granted in the
Passport Act of 1926. P. 381 U. S. 12
(c) This case, where the Secretary's refusal is based on foreign
policy considerations affecting all citizens, is distinguished from
Kent v. Dulles, 357 U. S. 116
where the passport denial was based on the applicant's political
beliefs or associations. Pp. 12-13.
3. The restriction on travel to Cuba does not abridge
appellant's constitutional rights. Pp. 381 U. S.
(a) The fact that a liberty cannot be inhibited without due
process of law does not mean that it can under no circumstances be
inhibited. P. 381 U. S. 14
(b) The restriction here is justified by the weightiest
considerations of national security. Pp. 381 U. S.
(c) The failure to validate appellant's passport results in an
inhibition of action, and not a restriction of a First Amendment
right. The right to speak and publish does not carry with it an
unrestrained right to gather information. Pp. 381 U. S.
(d) The Passport Act of 1926 contains sufficiently definite
standards for action, especially since the area is that of foreign
affairs, where the Executive has broad authority. P. 381 U. S. 17
(e) The Passport Act of 1926 does not grant the Executive
completely unrestricted freedom of action, as it authorizes only
those passport restrictions which it could fairly be argued were
adopted by Congress in light of prior administrative practice. Pp.
381 U. S.
4. Adjudication of the reach and constitutionality of § 215(b)
of the Immigration and Nationality Act of 1952 as applied to travel
in violation of an area restriction must await a concrete factual
situation. Pp. 381 U. S.
Page 381 U. S. 3
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 the 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
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
Page 381 U. S. 4
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 not 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.
] 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
Page 381 U. S. 5
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.
(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.
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.
, 312 U. S.
Section 2282 of Title 28 of the United States Code requires the
impaneling of a three-judge court in any case where the relief
"[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
Page 381 U. S. 6
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. [Footnote 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.
, 357 U. S. 125
Aptheker v. Secretary of State, 378 U.
, 378 U. S.
-506, 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
Ex parte Bransford, 310 U. S. 354
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. 381 U. S. 17
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
Schneider v. Rusk, 372 U. S. 224
Indeed, we explicitly noted in Kent v. Dulles, supra,
357 U. S. 129
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
Page 381 U. S. 7
then have been obliged to consider whether those Acts were void
for invalid delegation. [Footnote
The complaint therefore launches a substantial constitutional
attack upon two federal statutes, and prays that their operation be
enjoined. Cf. Idlewild Liquor Corp. v. Epstein,
370 U. S. 713
370 U. S. 715
We hold that the three-judge court was properly convened, and that
we therefore have jurisdiction over the appeal. [Footnote 4
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
Page 381 U. S. 8
designate and prescribe for and on behalf of the United States.
. . . [Footnote 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 reenacted
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
Page 381 U. S. 9
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 containing
substantially the same language, supports the conclusion that
Congress intended in 1926 to maintain in the Executive the
authority to make such restrictions. [Footnote 6
This construction of the Act is reinforced by the State
Department's continued imposition of area restrictions during both
times of war and periods of peace since 1926. For a period of about
seven months following the outbreak of war between Italy and
Ethiopia in 1935, the Department declined to issue passports for
travel in Ethiopia, except to journalists, Red Cross
representatives, and others able to show a "compelling exigency"
necessitating such travel. In cases where persons did not include
Ethiopia in their applications, but were -- by reason of the
mention in their applications of adjacent countries -- suspected of
intending to travel therein, their passports were stamped "not
valid for use in Ethiopia." III Hackworth supra,
531-532. Following the outbreak of the Spanish Civil War in 1936,
passports were stamped "not valid for travel in Spain," with
exceptions for newspapermen and persons furnishing medical
at 533-534. A similar restriction was
placed on travel to China in August, 1937, in view of "the
disturbed situation in the Far East." Passports were validated for
travel to China only "in exceptional circumstances," and in no case
for women or children. Id.
Page 381 U. S. 10
On March 31, 1938, the President, purporting to act pursuant to
the 1926 Act, specifically authorized the Secretary to impose area
restrictions in the issuance of passports, Exec.Order No. 7856, 3
Fed.Reg. 681, 687:
"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
This Executive Order is still in force. 22 CFR § 51.75. In
September, 1939, travel to Europe was prohibited except with a
passport specially validated for such travel; passports were so
validated only upon a showing of the "imperativeness" of the
travel. Departmental Order No. 811, 4 Fed.Reg. 3892.
Area restrictions have also been imposed on numerous occasions
since World War II. Travel to Yugoslavia was restricted in the late
1940's as a result of a series of incidents involving American
citizens. Dept. State Press Conf. May 9, 1947. Travel to Hungary
was restricted between December, 1949, and May, 1951, and, after
December, 1951. [Footnote 7
June, 1951, the State Department began to stamp passports "not
valid for travel in Czechoslovakia," and declared that all
passports outstanding at that time were not valid for such travel.
24 Dept.State Bull. 932. In May 1952, the Department issued a
general order that all new passports would be stamped not valid for
travel to Albania, Bulgaria, Communist China, Czechoslovakia,
Hungary, Poland, Rumania and the Soviet Union. 26 id.
736. In October, 1955, the Secretary announced that passports would
no longer require special validation
Page 381 U. S. 11
for travel to Czechoslovakia. Hungary, Poland, Rumania and the
Soviet Union, but would be stamped invalid for travel "to the
following areas under control of authorities with which the United
States does not have diplomatic relations: Albania Bulgaria, and
those portions of China, Korea and Viet-Nam under communist
control." 33 id.
at 777. In February 1956, the restriction
on travel to Hungary was reimposed. 34 id.
at 246-248. And
in late 1956, passports were for a brief period stamped invalid for
travel to or in Egypt, Israel, Jordan and Syria. 35 id.
Even if there had been no passport legislation enacted since the
1926 Act, the post-1926 history of executive imposition of area
restrictions, as well as the pre-1926 history, would be of
relevance to our construction of the Act. The interpretation
expressly placed on a statute by those charged with its
administration must be given weight by courts faced with the task
of construing the statute. Udall v. Tallman, 380 U. S.
, 380 U. S. 118
Norwegian Nitrogen Co. v. United States, 288 U.
, 288 U. S. 315
Under some circumstances, Congress' failure to repeal or revise in
the face of such administrative interpretation has been held to
constitute persuasive evidence that that interpretation is the one
intended by Congress. [Footnote
] In this case, however, the inference is supported by more
than mere congressional inaction. For, in 1952, Congress,
substantially reenacting laws which had been passed during the
First and Second World Wars, [Footnote 9
] provided that, after the issuance of a
presidential proclamation of war or national emergency, it would be
unlawful to leave or enter the
Page 381 U. S. 12
United States without a valid passport. Section 215 of the
Immigration and Nationality Act of 1952, 66 Stat. 10, 8 U.S.C. §
1185 (1958 ed.). The Solicitor General urges that, in view of the
issuance in 1953 of a presidential proclamation of national
emergency which is still outstanding, [Footnote 10
] travel in violation of an area
restriction imposed on an otherwise valid passport is unlawful
under the Act. The correctness of this interpretation is a question
we do not reach on this appeal, see infra
pp. 381 U. S. 18
But whether or not the new legislation was intended to attach
criminal penalties to the violation of area restrictions, it
certainly was not meant to cut back upon the power to impose such
restrictions. Despite 26 years of executive interpretation of the
1926 Act as authorizing the imposition of area restrictions,
Congress, in 1952, though it once again enacted legislation
relating to passports, left completely untouched the broad
rulemaking authority granted in the earlier Act. Cf. Norwegian
Nitrogen Co. v. United States, supra,
at 288 U. S. 313
This case is therefore not like Kent v. Dulles, supra,
where we were unable to find, with regard to the sort of passport
refusal involved there, an administrative practice sufficiently
substantial and consistent to warrant the conclusion that Congress
had implicitly approved it.
Page 381 U. S. 13
Appellant reminds us that, in summarizing the Secretary's
practice in Kent,
"So far as material here, the cases of refusal of passports
generally fell into two categories. First, questions pertinent to
the citizenship of the applicant and his allegiance to the United
States had to be resolved by the Secretary. . . . Second was the
question whether the applicant was participating in illegal
conduct, trying to escape the toils of the law, promoting passport
frauds, or otherwise engaging in conduct which would violate the
laws of the United States."
357 U.S. at 357 U. S. 127
It must be remembered, in reading this passage, that the issue
involved in Kent
was whether a citizen could be denied a
passport because of his political beliefs or associations. In
finding that history did not support the position of the Secretary
in that case, we summarized that history "so far as material here"
-- that is, so far as material to passport refusals based on the
character of the particular applicant. In this case, however, the
Secretary has refused to validate appellant's passport not because
of any characteristic peculiar to appellant, but rather because of
foreign policy considerations affecting all citizens.
Having concluded that the Secretary of State's refusal to
validate appellant's passport for travel to Cuba is supported by
the authority granted by Congress in the Passport Act of 19?6, we
must next consider whether that refusal abridges any constitutional
right of appellant. Although we do not in this case reach the
question of whether the 1952 Act should be read to attach criminal
penalties to travel to an area for which one's passport is not
validated, we must, if we are to approach the constitutional issues
presented by this appeal candidly, proceed
Page 381 U. S. 14
on the assumption that the Secretary's refusal to validate a
passport for a given area acts as a deterrent to travel to that
area. In Kent v. Dulles, supra,
at 357 U. S. 125
we held that "[t]he 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." See also Aptheker v. Secretary of
State, supra, at 378 U. S.
505-506. However, the fact that a liberty cannot be
inhibited without due process of law does not mean that it can
under no circumstances be inhibited. [Footnote 12]
The requirements of due process are a function not only of the
extent of the governmental restriction imposed, [Footnote 13
] but also of the extent of the
necessity for the restriction. Cuba is the only area in the Western
Hemisphere controlled by a Communist government. It is, moreover,
the judgment of the State Department that a major goal of the
Castro regime is to export its Communist revolution to the rest of
Latin America. [Footnote 14
The United States and other members of the Organization of American
States have determined that travel between Cuba and the other
countries of the Western Hemisphere is an important element in the
spreading of subversion, and many have therefore
Page 381 U. S. 15
undertaken measures to discourage such travel. [Footnote 15
] It also cannot be forgotten
that, in the early days of the Castro regime, United States
citizens were arrested and imprisoned without charges. We think,
particularly in view of the President's statutory obligation to
"use such means not amounting to acts of war, as he may think
necessary and proper" to secure the release of an American citizen
unjustly deprived of his liberty by a foreign government, [Footnote 16
] that the Secretary has
justifiably concluded that travel to Cuba by American citizens
might involve the action in dangerous international incidents, and
that the Constitution does not require him to validate passports
for such travel.
The right to travel within the United States is, of course, also
constitutionally protected, cf. Edwards v. California,
314 U. S. 160
that freedom does not mean that areas ravaged by flood, fire or
pestilence cannot be quarantined when it can be demonstrated that
unlimited travel to the area would directly and materially
Page 381 U. S. 16
the safety and welfare of the area or the Nation as a whole. So
it is with international travel. That the restriction which is
challenged in this case is supported by the weightiest
considerations of national security is perhaps best pointed up by
recalling that the Cuban missile crisis of October, 1962, preceded
the filing of appellant's complaint by less than two months.
Appellant also asserts that the Secretary's refusal to validate
his passport for travel to Cuba denies him rights guaranteed by the
First Amendment. His claim is different from that which was raised
in Kent v. Dulles, supra,
and Aptheker v. Secretary of
for the refusal to validate appellant's passport
does not result from any expression or association on his part;
appellant is not being forced to choose between membership in an
organization and freedom to travel. Appellant's allegation is,
rather, that the
"travel ban is a direct interference with the First Amendment
rights of citizens to travel abroad so that they might acquaint
themselves at first hand with the effects abroad of our
Government's policies, foreign and domestic, and with conditions
abroad which might affect such policies."
We must agree that the Secretary's refusal to validate passports
for Cuba renders less than wholly free the flow of information
concerning that country. While we further agree that this is a
factor to be considered in determining whether appellant has been
denied due process of law, [Footnote 17
] we cannot accept the contention of appellant
that it is a First Amendment right which is involved. For to the
extent that the Secretary's refusal to validate passports for Cuba
acts as an inhibition (and it would be unrealistic to assume that
it does not), it is an inhibition of action. There are few
Page 381 U. S. 17
on action which could not be clothed by ingenious argument in
the garb of decreased data flow. For example, the prohibition of
unauthorized entry into the White House diminishes the citizen's
opportunities to gather information he might find relevant to his
opinion of the way the country is being run, but that does not make
entry into the White House a First Amendment right. The right to
speak and publish does not carry with it the unrestrained right to
Finally, appellant challenges the 1926 Act on the ground that it
does not contain sufficiently definite standards for the
formulation of travel controls by the Executive. It is important to
bear in mind, in appraising this argument that, because of the
changeable and explosive nature of contemporary international
relations, and the fact that the Executive is immediately privy to
information which cannot be swiftly presented to, evaluated by, and
acted upon by the legislature, Congress -- in giving the Executive
authority over matters of foreign affairs -- must of necessity
paint with a brush broader than that it customarily wields in
"Practically every volume of the United States Statutes contains
one or more acts or joint resolutions of Congress authorizing
action by the President in respect of subjects affecting foreign
relations which either leave the exercise of the power to his
unrestricted judgment or provide a standard far more general than
that which has always been considered requisite with regard to
United States v. Curtiss-Wright Corp., 299 U.
, 299 U. S. 324
This does not mean that, simply because a statute deals with
foreign relations, it can grant the Executive totally unrestricted
freedom of choice. However, the 1926 Act contains no such grant. We
have held, Kent v. Dulles, supra,
and reaffirm today, that
the 1926 Act must take its
Page 381 U. S. 18
content from history: it authorizes only those passport refusals
and restrictions "which it could fairly be argued were adopted by
Congress in light of prior administrative practice." Kent v.
at 357 U. S. 128
So limited, the Act does not constitute an invalid delegation.
Appellant's complaint sought not only an order compelling the
Secretary of State to validate his passport for travel to Cuba, but
also a declaration that appellant "is entitled under the
Constitution and laws of the United States to travel to Cuba," and
an order enjoining the Secretary and the Attorney General from
interfering with such travel. Read in the context of the arguments
appellant makes here, it appears that the intent of the complaint
was that these latter prayers should be considered only in the
event that the court decided that the Secretary lacks authority to
refuse to validate appellant's passport for Cuba. However, the
complaint can also be read to incorporate a request that, even if
the court should find that the Secretary does have such authority,
it go on to decide whether appellant can be criminally prosecuted
under § 215(b) of the Immigration and Nationality Act of 1952, 66
Stat. 190, 8 U.S.C. 1185(b) (1958 ed.), for travel in violation of
an area restriction. That section provides:
"After such proclamation as is provided for in subsection (a)
has been made and published and while such proclamation is in
force, it shall, except as otherwise provided by the President, and
subject to such limitations and exceptions as the President may
authorize and prescribe, be 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. "
Page 381 U. S. 19
A proclamation of the sort referred to was issued in 1953, and
remains on the books. Pres.Proc. No. 3004, 67 Stat. c31;
Exec.Order No. 11037, 3 CFR 621 (1959-1963 Comp.). We
hold that, on either interpretation of the complaint, the court
below was correct in refusing to reach the issue of criminal
There are circumstances under which courts properly make
exceptions to the general rule that equity will not interfere with
the criminal processes by entertaining actions for injunction or
declaratory relief in advance of criminal prosecution. See
Evers v. Dwyer, 358 U. S. 202
Terrace v. Thompson, 263 U. S. 197
However, the Declaratory Judgment Act, 28 U.S.C. § 2201 (1958 ed.),
"is an enabling Act, which confers a discretion on the courts,
rather than an absolute right upon the litigant." Public Serv.
Comm'n v. Wycoff Co., 344 U. S. 237
344 U. S. 241
The complaint filed in this case does not specify the sort of
travel to Cuba appellant has in mind -- e.g.,
plans to proceed to Cuba directly or travel there via one or more
other countries. Nor can we tell from the papers filed whether the
Government will, in the event appellant journeys to Cuba, charge
him under § 215(b) with leaving the United States on a carrier
bound for Cuba with a passport not validated for Cuba; leaving the
United States with such a passport with the intent of traveling to
Cuba before he returns home; leaving the United States with such a
passport on a journey which, in fact, takes him to Cuba; reentering
the United States with such a passport after having visited Cuba;
some other act -- or whether it will charge him at all. [Footnote 18
Page 381 U. S. 20
each or any of these gradations of fact or charge would make a
difference as to criminal liability is an issue on which the
District Court wisely took no position. Nor do we. For if we are to
avoid rendering a series of advisory opinions, adjudication of the
reach and constitutionality of § 215(b) must await a concrete fact
situation. Compare Federation of Labor v. McAdory,
325 U. S. 450
The District Court therefore correctly dismissed the complaint,
and its judgment is
This procedural claim was abandoned in the District Court, and
has not been urged here.
Florida Lime Growers v. Jacobsen, 36 U. S.
, 36 U. S. 80
also Allen v. Grand Central Aircraft Co., 347 U.
; Lee v. Bickell, 292 U.
; Sterling v. Constantin, 287 U.
See also Douglas v. Noble, 261 U.
The convening of a three-judge court in this case surely
coincides with the legislative policy underlying the passage of §
"The legislative history of § 2282 and of its complement, § 2281
. . . indicates that these sections were enacted to prevent a
single federal judge from being able to paralyze totally the
operation of an entire regulatory scheme, either state or federal,
by issuance of a broad injunctive order. . . . Repeatedly
emphasized during the congressional debates on § 2282 were the
heavy pecuniary costs of the unforeseen and debilitating
interruptions in the administration of federal law which could be
wrought by a single judge's order, and the great burdens entailed
in coping with harassing actions brought one after another to
challenge the operation of an entire statutory scheme, wherever
jurisdiction over government officials could be acquired, until a
judge was ultimately found who would grant the desired
Kennedy v. Mendoza-Martinez, 372 U.
, 37 U. S.
-155. Appellant in this case does not challenge
merely a "single, unique exercise" of the Secretary's authority,
cf. Phillips v. United States supra
at 312 U. S. 253
On the contrary, this suit seeks to "paralyze totally the operation
of an entire regulatory scheme," indeed, a regulatory scheme
designed and administered to promote the security of the
The Secretary of State, rather than the President, imposed the
restriction on travel to Cuba. However, Congress has provided
"[t]he Secretary of State shall perform such duties as shall
from time to time be enjoined on or intrusted to him by the
President relative to . . . such . . . matters respecting foreign
affairs as the President of the United States shall assign to the
department. . . ."
R.S. § 202, 5 U.S.C. § 156 (1958 ed.). The President, in turn,
has authorized the Secretary, in his discretion, "to restrict a
passport for use only in certain countries [or] to restrict it
against use in certain countries. . . ." Exec.Order No. 7856, 3
Fed.Reg. 681, 687, 22 CFR § 51.75.
United States v. Cerecedo Hermanos y Compania,
209 U. S. 337
Service v. Dulles, 354 U. S. 363
354 U. S. 380
Labor Board v. Gullett Gin Co., 340 U.
, 340 U. S.
22 Dept.State Bull. 399; 26 id.
Norwegian Nitrogen Co. v. United States, supra,
288 U. S. 313
Costanzo v. Tillinghast, 287 U. S. 341
287 U. S. 345
United States v. Midwest Oil Co., 236 U.
, 236 U. S.
Act of May 22, 1918, 40 Stat. 559 Act of June 21, 1941, 55 Stat.
Pres.Proc. No. 3004, 67 Stat. c31; cf.
11037, 3 CFR 621 (1959-1963 Comp.).
Pres.Proc. No. 3004, 67 Stat. c31, which was issued in 1953
pursuant to § 215, stated that the departure and entry of citizens
would be governed by "sections 53.1 to 53.9, inclusive, of title 22
of the Code of Federal Regulations." 22 CFR § 53.8 (1949 ed.)
"Nothing in this part shall be construed to prevent the
Secretary of State from exercising the discretion resting in him to
refuse to issue a passport, to restrict its use to certain
countries, to withdraw or cancel a passport already issued, or to
withdraw a passport for the purpose of restricting its validity or
use in certain countries."
Aptheker v. Secretary of State, supra,
at 378 U. S.
-514; Schachtman v. Dulles,
287, 290 (opinion of the court), 293 (Edgerton, J., concurring),
225 F.2d 938, 941, 944 (1955); cf. Bolling v. Sharpe,
347 U. S. 497
499-500; Freedom to Travel (Report of Special Committee to Study
Passport Procedures, Ass'n of the Bar of the City of New York), pp.
53, 55 (1958); Chafee, Three Human Rights in the Constitution of
1787, p. 192 (1956).
Compare Kent v. Dulles, supra; Aptheker v. Secretary of
Universal Declaration of Human Rights, Art. 13
(quoted. S.Doc. No. 123, 81st Cong., 1st Sess., p. 1157);
Korematsu v. United States, 323 U.
, 323 U. S.
Cuba, Dept. of State Pub. No. 7171, pp. 25-36 (1961); see
Ball, U.S. Policy Toward Cuba, Dept. State Pub. No. 7690,
p. 3 (1964); 47 Dept.State Bull. 598-600.
Report of the Special Committee to Study
Resolutions II.1 and VIII of the Eighth Meeting of Consultation of
Ministers of Foreign Affairs, OEA/Ser. G/IV, pp. 14-16 (1963); 48
Dept.State Bull. 517, 719; Resolution I, Final Act, Ninth Meeting
of Consultation of Ministers of Foreign Affairs, OEA/Ser. F/II.9
R.S. § 2001, 22 U.S.C. § 1732 (1958 ed.), provides:
"Whenever it is made known to the President that any citizen of
the United States has been unjustly deprived of his liberty by or
under the authority of any foreign government, it shall be the duty
of the President forthwith to demand of that government the reasons
of such imprisonment, and if it appears to be wrongful and in
violation of the rights of American citizenship, the President
shall forthwith demand the release of such citizen, and if the
release so demanded is unreasonably delayed or refused, the
President shall use such means, not amounting to acts of war, as he
may think necessary and proper to obtain or effectuate the release,
and all the facts and proceedings relative thereto shall as soon as
practicable be communicated by the President to Congress."
Indeed, it was precisely this sort of consideration which led us
to hold in Kent v. Dulles, supra,
at 357 U. S.
-127, that the right to travel is protected by the
Fifth Amendment. See also Aptheker v. Secretary of State,
at 378 U. S. 520
(DOUGLAS, J., concurring).
The Solicitor General does not state with particularity the
Government's position as to the reach of § 215(b) with regard to
area restrictions; he simply asserts that § 215(b) "confirms the
authority of the Secretary to impose area restrictions in the
issuance of passports and prohibits travel in violation thereof."
Brief for Appellees, p. 56; see also id.
MR. JUSTICE BLACK, dissenting.
Article I of the Constitution provides that
legislative Powers herein granted shall be vested
in a Congress of the United States which shall consist of a Senate
and House of Representatives."
(Emphasis supplied.) I have no doubt that this provision grants
Congress ample power to enact legislation regulating the issuance
and use of passports for travel abroad unless the particular
legislation is forbidden by some specific constitutional
prohibition such as, for example. the First Amendment. See
Aptheker v. Secretary of State, 378 U.
, 378 U. S. 517
(concurring opinion); cf. Kent v. Dulles, 357 U.
. Since Article I, however, vests "All legislative
Powers" in the Congress, and no language in the Constitution
purports to vest any such power in the President, it necessarily
follows, if the Constitution is to control, that the President is
completely devoid of power to make laws regulating passports or
anything else. And he has no more power to make laws by labeling
them regulations than to do so by calling them laws. Like my
Brother GOLDBERG, I cannot accept the Government's argument that
the President has "inherent" power to make regulations governing
the issuance and use of passports. Post
pp. 381 U. S. 28
We emphatically, and I think properly, rejected a similar argument
advanced to support a seizure of the Nation's steel companies
Page 381 U. S. 21
by the President. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579
regulation of passports, just like regulation of steel companies,
is a law-making -- not an executive, law-enforcing -- function.
Nor can I accept the Government's contention that the passport
regulations here involved are valid
"because the Passport Act of 1926, in unequivocal words,
delegates to the President and Secretary a general discretionary
power over passports. . . ."
That Act does provide that
"the Secretary of State may grant and issue passports, and cause
passports to be granted issued, and verified in foreign countries .
. . under such rules as the President shall designate and
prescribe. . . . [Footnote
Quite obviously, the Government does not exaggerate in saying
that this Act "does not provide any specific standards for the
Secretary," and "delegates to the President and Secretary a general
discretionary power over passports" -- a power so broad, in fact,
as to be marked by no bounds except an unlimited discretion. It is
plain, therefore, that Congress has not itself passed a law
regulating passports; it has merely referred the matter to the
Secretary of State and the President in words that say, in effect,
"We delegate to you our constitutional power to make such laws
regulating passports as you see fit." The Secretary of State has
proceeded to exercise the power to make laws regulating the
issuance of passports by declaring that he will issue them for Cuba
only to "persons whose travel may be regarded as being in the best
interests of the United States," as he views those interests. For
Congress to attempt to delegate such an undefined law-making power
to the Secretary, the President, or both, makes applicable to this
1926 Act what Mr. Justice Cardozo said about the National
Industrial Recovery Act: [Footnote
] "This is delegation running riot. No such plenitude of
power is susceptible of transfer."
Page 381 U. S. 22
A. L. A. Schechter Poultry Corp. v. United States,
295 U. S. 495
295 U. S. 553
(concurring opinion). See also Panama Ref. Co. v. Ryan,
293 U. S. 388
cf. Kent v. Dulles, 357 U. S. 116
357 U. S.
Our Constitution has ordained that laws restricting the liberty
of our people can be enacted by the Congress, and by the Congress
only. I do not think our Constitution intended that this vital
legislative function could be farmed out in large blocks to any
governmental official, whoever he might be or to any governmental
department or bureau, whatever administrative expertise it might be
thought to have. The Congress was created on the assumption that
enactment of this free country's laws could he safely entrusted to
the representatives of the people in Congress, and to no other
official or government agency. The people who are called on to obey
laws have a constitutional right to have them passed only in this
constitutional way. This right becomes all the more essential when
as here the person called on to obey may be punishable by five
years' imprisonment and a $5,000 fine if he dares to travel without
the consent of the Secretary or one of his subordinates. [Footnote 2/3
] It is irksome enough for one
who wishes to travel to be told by the Congress the constitutional
lawmaker with power to legislate in this field, that he cannot go
where he wishes. It is bound to be far more irritating -- and I do
not think the authors of our Constitution, who gave "All"
legislative power to Congress, intended -- for a citizen of this
country to be told that he cannot get a passport because Congress
has given an unlimited discretion to an executive official (or,
viewed practically, to his subordinates) to decide when and where
he may go. I repeat my belief that Congress has ample power to
regulate foreign travel. And of course, the fact that there may be
good and adequate reasons for Congress
Page 381 U. S. 23
to pass such a law is no argument whatever for holding valid a
law written not by the Congress, but by executive officials.
See Panama Ref. Co. v. Ryan, supra,
293 U.S. at
293 U. S. 420
I think the 1926 Act gives the lawmaking power of Congress to the
Secretary and the President, and that it therefore violates the
constitutional command that "All" legislative power be vested in
the Congress. I would therefore reverse the judgment.
44 Stat. 887, 22 U.S.C. § 211a (1958 ed.).
Act of June 16, 1933, 48 Stat. 195.
66 Stat. 190, 8 U.S.C. § 1185 (1964 ed.).
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE GOLDBERG concurs,
Appellant, the holder of a valid United States passport,
requested that his passport be validated for travel to Cuba: he
wished to make the trip "to satisfy my curiosity about the state of
affairs in Cuba and to make me a better informed citizen." The need
for validation arose from the Department of State's prior
elimination of Cuba from the area for which passports were not
required. 22 CFR 53.3(b), and from its issuance of a public notice
declaring all outstanding passports invalid for travel to Cuba
unless specifically endorsed for such travel under the authority of
the Secretary of State, 26 Fed.Reg. 492. A companion press release
of January 16, 1961, stated that such travel would be permitted
"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."
The Passport Office denied appellant's request for validation.
Referring to the press release, the Deputy Director of the Passport
Office informed appellant that it was "obvious that your present
purpose of visiting Cuba does not meet the standards for validation
of your passport."
We held in Kent v. Dulles, 357 U.
, that the right to travel overseas, as well as at
home, was part of the citizen's liberty under the Fifth Amendment.
That conclusion was not an esoteric one drawn from the blue. It
Page 381 U. S. 24
reflected a judgment as to the peripheral rights of the citizen
under the First Amendment. The right to know to converse with
others, to consult with them, to observe social physical, political
and other phenomena abroad, as well as at home, gives meaning and
substance to freedom of expression and freedom of the press.
Without those contacts, First Amendment rights suffer. That is why,
in Kent v. Dulles, supra,
we said that freedom of movement
has "large social values." Id.
at 357 U. S.
The ability to understand this pluralistic world, filled with
clashing ideologies, is a prerequisite of citizenship if we and the
other peoples of the world are to avoid the nuclear holocaust. The
late Pope John XXIII, in his famous encyclical Pacem in
stated the idea eloquently:
"Men are becoming more and more convinced that disputes which
arise between States should not be resolved by recourse to arms,
but rather by negotiation."
"It is true that, on historical grounds, this conviction is
based chiefly on the terrible destructive force of modern arms, and
it is nourished by the horror aroused in the mind by the very
thought of the cruel destruction and the immense suffering which
the use of those armaments would bring to the human family, and,
for this reason, it is hardly possible to imagine that, in the
atomic era, war could be used as an instrument of justice."
"Nevertheless, unfortunately, the law of fear still reigns among
peoples, and it forces them to spend fabulous sums for armaments:
not for aggression, they affirm -- and there is no reason for not
believing them -- but to dissuade others from aggression."
"There is reason to hope, however, that, by meeting and
negotiating, men may come to discover better the bonds that unite
them together, deriving from
Page 381 U. S. 25
the human nature which they have in common, and that they may
also come to discover that one of the most profound requirements of
their common nature is this: that, between them and their
respective peoples, it is not fear which should reign, but love, a
love which tends to express itself in a collaboration that is
loyal, manifold in form, and productive of many benefits."
He also said:
From the fact that human beings are by nature social, there
arises the right of assembly and association.
Since we deal with rights peripheral to the enjoyment of First
Amendment guarantees, restrictive legislation must be "narrowly
drawn" (Cantwell v. Connecticut, 310 U.
, 310 U. S. 307
to meet a precise evil. Only last Term, in Aptheker v.
Secretary of State, 378 U. S. 500
reaffirmed that, when we struck down a provision of the Subversive
Activities Control Act of 1950 (64 Stat. 987) because it "too
broadly and indiscriminately" restricted the right to travel,
at 378 U. S. 505
We should do the same here.
I agree that there are areas to which Congress can restrict or
ban travel. Pestilences may rage in a region, making it necessary
to protect not only the traveler but those he might infect on his
return. A theatre of war may be too dangerous for travel. Other
like situations can be put. But the only so-called danger present
here is the Communist regime in Cuba. The world, however, is filled
with Communist thought, and Communist regimes are on more than one
continent. They are part of the world spectrum, and if we are to
know them and understand them, we must mingle with them, as Pope
John said. Keeping alive intellectual intercourse between opposing
groups has always been important, and perhaps was never more
important than now.
Page 381 U. S. 26
The First Amendment presupposes a mature people, not afraid of
ideas. The First Amendment leaves no room for the official, whether
truculent or benign, to say nay or yea because the ideas offend or
please him or because he believes some political objective is
served by keeping the citizen at home or letting him go. Yet that
is just what the Court's decision today allows to happen. We have
here no congressional determination that Cuba is an area from which
our national security demands that Americans be excluded. Nor do we
have a congressional authorization of the Executive to make such a
determination according to standards fixed by Congress. Rather, we
have only the claim that Congress has painted with such a "broad
brush" that the State Department can ban travel to Cuba simply
because it is pleased to do so. By permitting this, the Court
ignores the "familiar and basic principle," Aptheker v.
Secretary of State, supra,
at 378 U. S. 508
"a governmental purpose to control or prevent activities
constitutionally subject to state regulation may not he achieved by
means which sweep unnecessarily broadly, and thereby invade the
area of protected freedoms."
NAACP v. Alabama, 377 U. S. 288
377 U. S.
As I have said, the right to travel is at the periphery of the
First Amendment, rather than at its core, largely because travel
is, of course, more than speech: it is speech brigaded with
"Conduct remains subject to regulation for the protection of
society. . . . [But i]n every case, the power to regulate must be
so exercised as not, in attaining a permissible end, unduly to
infringe the protected freedom."
Cantwell v. Connecticut, supra,
at 310 U. S. 304
Restrictions on the right to travel in times of peace should be so
particularized that a First Amendment right is not precluded unless
some clear countervailing national interest stands in the way of
its assertion. *
Page 381 U. S. 27
* Time after time, this Court has been alert to protect First
Amendment rights which are exercised in a context of overt action
which is subject to governmental regulation.
"In a series of decisions, this Court has held that, even though
the governmental purpose be legitimate and substantial, that
purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgment must be viewed in the light of
less drastic means for achieving the same basic purpose."
Shelton v. Tucker, 364 U. S. 479
364 U. S. 488
See, e.g., Lovell v. Griffin, 303 U.
; Schneider v. State, 308 U.
; Cantwell v. Connecticut, supra; Martin v.
Struthers, 319 U. S. 141
Saia v. New York, 334 U. S. 558
Kunz v. New York, 340 U. S. 290
Schware v. Board of Bar Examiners, 353 U.
, 353 U. S. 239
Louisiana ex rel. Gremillion v. NAACP, 366 U.
; NAACP v. Button, 371 U.
; Aptheker v. Secretary of State,
MR. JUSTICE GOLDBERG, dissenting.
Last year, approximately 2,750,000 Americans traveled abroad.
More than 1,100,000 passports were issued or renewed, nearly 4,000
of which were obtained by journalists. [Footnote 3/1
] This phenomenal amount of travel not only
demonstrates our curiosity about things foreign and the increasing
importance of, and indeed often necessity for, travel, but it also
reflects the long history of freedom of movement which Americans
have enjoyed. Since the founding of the Republic, our Government
has encouraged such travel. [Footnote
] For example, in 1820, when John Quincy Adams issued a
passport to one Luther Bradish, he certified that Bradish was about
to visit foreign countries "with the view of gratifying a
commendable curiosity." [Footnote
] In 1962, however, when appellant requested that his
passport be validated so that he might travel to Cuba "to satisfy
my curiosity about the state of affairs in Cuba and to make me a
better informed citizen," his request was
Page 381 U. S. 28
denied upon the basis of Department of State regulations, issued
under the alleged authority of an Executive Order, restricting
travel to Cuba.
Appellant attacks the limitation imposed upon the validity of
his passport as beyond the inherent power of the Executive,
unauthorized by Congress, and beyond the constitutional authority
of either the Executive or Congress. I agree with the Court that
Congress has the constitutional power to impose area restrictions
on travel, consistent with constitutional guarantees, and I reject
appellant's arguments to the contrary. With all deference, however,
I do not agree with the Court's holding that Congress has exercised
this power. Moreover, I do not believe that the Executive has
inherent authority to impose area restrictions in time of peace. I
would hold, under the principles established by prior decisions of
this Court, that, inasmuch as Congress has not authorized the
Secretary to impose area restrictions, appellant was entitled to a
passport valid for travel to Cuba.
. INHERENT AUTHORITY OF THE EXECUTIVE
This Court has recognized that the right to travel abroad is "an
important aspect of the citizen's liberty'" guaranteed by the
Due Process Clause of the Fifth Amendment. Kent v. Dulles,
357 U. S. 116,
357 U. S. 127.
In Aptheker v. Secretary of State, 378 U.
S. 500, 378 U. S. 517,
we reaffirmed that "freedom of travel is a constitutional liberty
closely related to rights of free speech and association." As
nations have become politically and commercially more dependent
upon one another and foreign policy decisions have come to have
greater impact upon the lives of our citizens, the right to travel
has become correspondingly more important. Through travel, by
private citizens as well as by journalists and governmental
officials, information necessary to the making of informed
decisions can be obtained. And, under our constitutional
Page 381 U. S. 29
ultimate responsibility for the making of informed decisions
rests in the hands of the people. As Professor Chafee has pointed
"An American who has crossed the ocean is not obliged to form
his opinions about our foreign policy merely from what he is told
by officials of our government or by a few correspondents of
American newspapers. Moreover, his views on domestic questions are
enriched by seeing how foreigners are trying to solve similar
problems. In many different ways, direct contact with other
countries contributes to sounder decisions at home."
Chafee, Three Human Rights in the Constitution of 1787, 195-196
The constitutional basis of the right to travel and its
importance to decisionmaking in our democratic society led this
Court, in Kent v. Dulles, supra,
to conclude that "[i]f
that liberty' is to be regulated, it must be pursuant to the
law-making functions of the Congress." 357 U.S. at 357 U. S. 129.
Implicit in this statement, and at the very core of the holding in
Kent v. Dulles, is a rejection of the argument there
advanced, and also made here by the Government, that the Executive
possesses an inherent power to prohibit or impede travel by
restricting the issuance of passports. The Court in Kent
expressly recognized that a passport is not only of great value,
but also is necessary [Footnote
3/4] to leave this country and to travel to most parts of the
world. Kent v. Dulles, supra, at 357 U. S. 121.
The Court demonstrates in Kent v. Dulles, and I shall show
in detail below, that there is no longstanding and consistent
history of the
Page 381 U. S. 30
exercise of an alleged inherent Executive power to limit travel
or restrict the validity of passports. In view of the
constitutional basis of the right to travel, the legal and
practical necessity for passports, and the absence of a
longstanding Executive practice of imposing area restrictions, I
would rule here, as this Court did in Kent v. Dulles,
passport restrictions may be imposed only when Congress makes
provision therefor "in explicit terms," Kent v. Dulles,
at 357 U. S. 130
consistent with constitutional guarantees. Cf. Youngstown Sheet
& Tube Co. v. Sawyer, 343 U. S. 579
would hold expressly that the Executive has no inherent authority
to impose area restrictions in time of peace.
. STATUTORY AUTHORITY
I cannot accept the Court's view that authority to impose area
restrictions was granted to the Executive by Congress in the
Passport Act of 1926, 44 Stat. 887, 22 U.S.C. § 211a (1958 ed.),
"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."
I do not believe that the legislative history of this provision,
or administrative practice prior to its most recent reenactment in
1926, will support the Court's interpretation of the statute.
Moreover, the nature of the problem presented by area restrictions
makes it unlikely that authority to impose such restrictions was
granted by Congress in the course of enacting such a broad general
statute. In my view, as the history I shall relate establishes,
this statute was designed solely to centralize authority to issue
passports in the hands of the Secretary of State in order to
overcome the abuses and chaos caused by the fact that, prior to the
passage of the statute, numerous unauthorized persons issued
passports and travel documents.
Page 381 U. S. 31
A. The Legislative History
The 1926 provision has its origin in the Act of August 18, 1856,
11 Stat. 52, 661. Prior to 1856, the issuance of passports was not
regulated by law. Governors of States, local mayors, and even
notaries public issued documents which served as passports. This
produced confusion abroad. In 1835, Secretary of State Forsyth
"It is within the knowledge of the Department that the
diplomatic agents of foreign governments in the United States have
declined authenticating acts of governors or other State or local
authorities, and foreign officers abroad usually require that
passports granted by such authorities shall be authenticated by the
ministers or consuls of the United States. Those functionaries,
being thus called upon, find themselves embarrassed between their
desire to accommodate their fellow citizens and their unwillingness
to certify what they do not officially know, and the necessity of
some uniform practice, which may remove the difficulties on all
sides, has been strongly urged upon the Department."
III Moore, International Law Digest 862-863 (1906). Despite
administrative efforts to curb the flow of state and local
passports, Secretary of State Marcy wrote in 1854:
"To preserve proper respect for our passports, it will be
necessary to guard against frauds as far as possible in procuring
them. I regret to say that local magistrates or persons pretending
to have authority to issue passports have imposed upon persons who
go abroad with these spurious papers. Others, again, who know that
they are not entitled to passports -- not being citizens of the
United States -- seek to get these fraudulent passports, thinking
that they will protect them while abroad."
III Moore, op. cit. supra
Page 381 U. S. 32
As is noted in an official history of the State Department.
"The lack of legal provision on the subject [of passports] led
to gross abuses, and 'the impositions practiced upon the illiterate
and unwary by the fabrication of worthless passports' [IX
Op.Atty.Gen. 350] led finally to the passage of the Act of August
The Department of State of the United States: Its History and
Functions 178 (1893). This Act provided that
"the Secretary of State shall be authorized to grant and issue
passports, and cause passports to be granted, issued, and verified
in foreign countries by such diplomatic or consular officers of the
United States 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 any such passport."
11 Stat. 60. That Act made it a crime for a person to issue a
passport who was not authorized to do so. This provision was
reenacted on July 3, 1926, 44 Stat. 887, in substantially identical
form. [Footnote 3/5
] There is no
indication in the legislative history, either at the time the Act
was originally passed in 1856 or when it was reenacted, that it was
meant to serve any purpose other than that of centralizing the
authority to issue passports in the hands of the Secretary of State
so as to eliminate abuses in their issuance. Thus, in my view, the
authority to make rules granted by the statute to the Executive
extends only to the promulgation of rules designed to carry out
this statutory purpose.
Page 381 U. S. 33
B. The Administrative Practice
The administrative practice of the State Department prior to
1926 does not support the Court's view that, when Congress
reenacted the 1856 provision in 1926, it intended to grant the
Executive authority to impose area restrictions. Prior to the First
World War, the State Department had never limited the validity of
passports for travel to any particular area. In fact, limitations
upon travel had been imposed only twice. During the War of 1812,
Congress specifically provided by statute that persons could not
cross enemy lines without a passport, and in 1861, at the beginning
of the Civil War, the Secretary of State ruled that passports would
not be issued to persons whose loyalty was in doubt. These
restrictions were imposed in time of war. The first, restricting
the area of travel, evidently was thought to require a specific
statutory enactment by Congress, and the second did not limit the
area of travel, but, rather, limited the persons to whom passports
would be issued. [Footnote 3/6
Until 50 years ago, peacetime limitations upon the right of a
citizen to travel were virtually unknown, see
op. cit. supra
at 193; Jaffe, The Right to Travel: The
Passport Problem, 35 Foreign Affairs 17, and it was in this
atmosphere that the Act of 1856 was passed and its reenactment
prior to 1926 took place.
The only area restrictions imposed between 1856 and 1926 arose
out of the First World War. Although Americans
Page 381 U. S. 34
were not required by law to carry passports in 1915, certain
foreign countries insisted that Americans have them. American
Consulates and Embassies abroad were therefore authorized to issue
emergency passports after the outbreak of the war, and in 1915, the
Secretary of State telegraphed American Ambassadors and Ministers
in France, Germany, Great Britain, Italy, the Netherlands, and
"Do not issue emergency passports for use in Belgium [then
occupied by German armed forces] unless applicants obliged to go
thither by special exigency or authorized by Red Cross or Belgian
III Hackworth, Digest of International Law 525-526
(1942). After the United States entered World War I, travel to
areas of belligerency and to enemy countries was restricted.
Passports were marked not valid for travel to these areas, and
Congress provided by statute that passports were necessary in order
to leave or enter the United States. The congressional Act
requiring passports for travel expired in 1921, and soon after the
official end of the war, passports were marked valid for travel to
all countries. See
III Hackworth, supra,
Hearings before the Senate Committee on Foreign Relations on
Department of State Passport Policies, 85th Cong., 1st Sess., 64
(hereafter Senate Hearings). Thus, in 1926, freedom of travel was
as complete as prior to World War I. In this atmosphere, Congress
reenacted, in virtually identical terms, the 1856 statute, the sole
purpose of which, as I have already noted, was to centralize
passport issuance. Congress, in doing so, did not indicate the
slightest intent or desire to enlarge the authority of the
Executive to regulate the issuance of passports. Surely travel
restrictions imposed while the United States was at war and a
single telegram instructing ministers to deny emergency passports
for a brief time in 1915 for travel to a theatre of war do not show
that Congress, by reenacting the 1856 Act in 1926, intended to
authorize the Executive
Page 381 U. S. 35
to impose area restrictions upon travel in peacetime whenever
the Executive believed such restrictions might advance American
foreign policy. The long tradition of freedom of movement, the fact
that no passport area restrictions existed prior to World War I,
the complete absence of any indication in the legislative history
that Congress intended to delegate such sweeping authority to the
Executive, all point in precisely the opposite direction. [Footnote 3/7
In Kent v. Dulles, supra,
the Court held that the 1926
Act did not authorize the Secretary of State to withhold passports
from persons because of their political beliefs or associations.
Although it was argued that, prior to
Page 381 U. S. 36
1926, the Secretary had withheld passports from Communists and
other suspected subversives and that such an administrative
practice had been adopted by Congress, the Court found that the
evidence of such a practice was insufficient to warrant the
conclusion that it had congressional authorization.
Yet, in Kent v. Dulles,
the Government pointed to
scattered Executive interpretations showing that, upon occasion,
the State Department believed that it had the authority in
peacetime to withhold passports from persons deemed by the
Department to hold subversive beliefs. In 1901, Attorney General
Knox advised the Secretary of State that a passport might be
withheld from "an avowed anarchist." 23 Op.Atty.Gen. 509, 511.
Orders promulgated by the Passport Office periodically have
required denial of passports to "revolutionary radicals."
Passport Office Instructions of May 4, 1921. A State
Department memorandum of May 29, 1956, in summarizing the
Department's passport policy, states that, after the Russian
"passports were refused to American Communists who desired to go
abroad for indoctrination, instruction, etc. This policy was
continued until 1931. . . . [Footnote
These isolated instances of the assumption of authority to
refuse passports to persons thought subversive were held
insufficient to show that Congress, in 1926, intended to grant the
Secretary of State discretionary authority to deny passports to
persons because of their political beliefs, Kent v. Dulles,
at 357 U. S. 128
This case presents an even more attenuated showing of
administrative practice, for there is revealed only one isolated
instance of a peacetime area restriction, and this closely
connected with World War I. Clearly this single instance is
insufficient to show
Page 381 U. S. 37
that Congress intended to authorize the Secretary to impose
peacetime area restrictions.
Moreover, just as the more numerous instances of restriction on
travel because of political beliefs and associations in wartime
were insufficient to show that Congress intended to grant the
Secretary authority to curtail such travel in time of peace,
see Kent v. Dulles, supra,
at 357 U. S. 128
so here the fact that area restrictions were imposed during World
War I does not show that Congress intended to grant the Secretary
authority to impose such restrictions in time of peace. In time of
war and in the exercise of the war power, restrictions may be
imposed that are neither permissible nor tolerable in time of
peace. See Kent v. Dulles, supra,
at 357 U. S. 128
cf. Youngstown Sheet & Tube Co. v. Sawyer,
343 U. S. 579
But see Kennedy v. Mendoza-Martinez, 372 U.
. Thus, even if the State Department's wartime
practice should lead to the conclusion that area restrictions in
time of war were sanctioned, it surely does not show that Congress
wished to authorize similar curtailment of the right to travel in
time of peace. [Footnote 3/9
While the Court intimates that Kent v. Dulles
distinguishable from the present case because, in Kent v.
passports were denied on the basis of the applicants'
political beliefs, ante
at 381 U. S. 13
find little in the logic of that opinion to support such a
distinction. The Court in Kent v. Dulles
conclusions that the Executive does not have an inherent power to
impose peacetime passport restrictions and that Congress did not
delegate such authority to the Executive on the history of
Page 381 U. S. 38
passport restrictions and the constitutional basis of the right
to travel. While the Court there mentions that it is dealing "with
beliefs, with associations, with ideological matters," 367 U.S. at
367 U. S. 130
reading of the opinion clearly reveals that its holding does not
turn upon such factors. Moreover, the importance of travel to the
gathering of information, an activity closely connected with the
First Amendment and a right asserted here, seems to be a major
reason for the Court's holding in Aptheker
that the right to travel is afforded constitutional
protection. Kent v. Dulles
thus seems not only relevant,
but controlling, in the case presented here.
C. The Statute's Inapplicability to the
of Area restrictions.
The Court's interpretation of the 1926 Passport Act not only
overlooks the legislative history of the Act and departs from the
letter and spirit of this Court's decisions in Kent v. Dulles,
and Aptheker v. Secretary of State, supra,
it also implies that Congress resolved, through a sweeping grant of
authority, the many substantial problems involved in curtailing a
citizen's right to travel because of considerations of national
policy. People travel abroad for numerous reasons of varying
importance. Some travel for pleasure, others for business, still
others for education. Foreign correspondents and lecturers must
equip themselves with first-hand information. Scientists and
scholars gain considerably from interchanges with colleagues in
other nations. See
Chafee, op. cit. supra
Just as there are different reasons for people wanting to
travel, so there are different reasons advanced by the Government
for its need to impose area restrictions. These reasons vary. The
Government says restrictions are imposed sometimes because of
political differences with countries, sometimes because of
unsettled conditions, and sometimes, as in this case, as part of a
Page 381 U. S. 39
together with other nations, to isolate a hostile foreign
country such as Cuba because of its attempts to promote the
subversion of democratic rations. See
63-69. The Department of State also has imposed different types of
travel restrictions in different circumstances. All newsmen, for
example, were prohibited from traveling to China, see
Senate Hearings 67, but they have been allowed to visit Cuba.
Public Notice 179 (Jan. 16, 1961), 26 Fed.Reg. 492;
Press Release No. 24, issued by the Secretary of State, Jan. 16,
1961. In view of the different types of need for travel
restrictions, the various reasons for traveling abroad, the
importance and constitutional underpinnings of the right to travel,
and the right of a citizen and a free press to gather information
about foreign countries, it cannot be presumed that Congress,
without focusing upon the complex problems involved, resolved them
by adopting a broad and sweeping statute which, in the Court's
view, confers unlimited discretion upon the Executive, and which
makes no distinctions reconciling the rights of the citizen to
travel with the Government's legitimate needs. I do not know how
Congress would deal with this complex area were it to focus on the
problems involved, or whether, for example, in light of our
commitment to freedom of the press, Congress would consent under
any circumstances to prohibiting newsmen from traveling to foreign
countries. But, faced with a complete absence of legislative
consideration of these complex issues, I would not presume that
Congress, in 1926, issued a blanket authorization to the Executive
to impose area restrictions and define their scope and duration,
for the nature of the problem seems plainly to call for a more
discriminately fashioned statute.
In my view, it is clear that Congress did not mean the 1926 Act
to authorize the Executive to impose area restrictions
Page 381 U. S. 40
in time of peace, and, with all deference, I disagree with the
Court's holding that it did. I agree with the Court that Congress
may authorize the imposition of travel restrictions consistent with
constitutional guarantees, but I find it plain and evident that
Congress has never considered and resolved the problem. After
consideration, Congress might determine that broad general
authority should be delegated to the Secretary of State, or it
might frame a narrower statute. I believe that here, as in other
areas, appropriate delegation is constitutionally permissible where
some standard for the application of delegated power is provided.
See, e.g., Lichter v. United States, 334 U.
, 334 U. S. 785
However, in light of my conclusion that the 1926 Act did not deal
with area restrictions, I do not find it necessary to consider the
question of whether the language of the 1926 Act might constitute
an unconstitutionally broad delegation of power.
In view of the different types of need for area restrictions
asserted by the Government, the various reasons for travel abroad,
the importance and constitutional underpinnings of the right of
citizens and a free press to gather information about foreign
countries -- considerations which Congress did not focus upon -- I
would not infer, as the Court does, that Congress resolved the
complex problem of area restrictions, which necessarily involves
reconciling the rights of the citizen to travel with the
Government's legitimate needs, by the reenactment of a statute that
history shows was designed to centralize authority to issue
passports in the Secretary of State so as to prevent abuses arising
from their issuance by unauthorized persons. Since I conclude that
the Executive does not possess inherent power to impose area
restrictions in peacetime, and that Congress has not considered the
issue and granted such authority to the Executive, I would reverse
the judgment of the District Court.
U.S. Dept. of State, Summary of Passport Statistics Jan.
Very recently, the President has requested citizens voluntarily
and temporarily to limit their travel abroad because of balance of
U.S. Dept. of State, The American Passport 10
Except for the years 1918 to 1921 and since 1941, American law
did not require a passport for travel abroad. Currently, however, §
215(b) of the Immigration and Nationality Act of 1952, 66 Stat.
190, 8 U.S.C. § 1185(b) (1958 ed.), makes it unlawful, after the
proclamation of a national emergency "to depart from or enter, or
attempt to depart from or enter, the United States . . . [without]
a valid passport." The Court expresses no views, nor do I, upon the
validity or proper interpretation of this provision, which is
currently involved in other litigation not now before us.
The following changes have been made in the wording of this
provision of the statute between 1856 and the present: when the
statute was placed in the Revised Statutes of 1874, the words
"shall be authorized to" were replaced by "may." R.S. § 4075. On
June 14, 1902, the provision was amended to increase the list of
those whom the Secretary could cause to grant, issue and verify
passports in foreign countries by adding the words "and by such
chief or other executive officer of the insular possessions of the
United States." 32 Stat. 386. When the provision was reenacted in
1926, the list of those whom the Secretary could cause to grant,
issue and verify passports in foreign countries was modified by
substituting for the words "by such diplomatic or consular officers
of the United States," the words
"by diplomatic representatives of the United States, and by such
consul generals, consuls, or vice consuls when in charge, as the
Secretary of State may designate,"
and the words "such passports" were substituted for the words
"any such passport." 44 Stat. 887.
See Kent v. Dulles, supra,
at 357 U. S. 128
where the Court implies that regulation of travel based upon
disloyalty to the country during wartime presents quite a different
question from such regulation in time of peace.
The Court also argues that State Department imposition of area
restrictions after 1926 shows that the Act granted power to impose
such restrictions, for a consistent administrative interpretation
must be given weight by the courts. Ante
at 381 U. S. 11
See Norwegian Nitrogen Co. v. United States, 288 U.
. With all deference, I do not find a consistent
administrative interpretation of the 1926 Act. While area
restrictions have been imposed by the Executive from time to time
since 1926, see
Senate Hearings 64-65, the Executive has
also indicated doubts as to its authority to restrict passports. In
1958, the President formally asked Congress for
"clear statutory authority to prevent Americans from using
passports for travel to areas where there is no means of protecting
them, or where their presence would conflict with our foreign
H.R.Doc. No. 417, 85th Cong., 2d Sess. In 1957, the Report of
the Commission on Government Security expressly recommended that it
be made unlawful "for any citizen of the United States to travel to
any country in which his passport is declared to be invalid."
S.Doc. No. 64, 85th Cong., 1st Sess., 475. Moreover, when the
Department of State announced limitations on the use of passports
for travel to Red China, the accompanying press release stated that
the restrictions did not forbid American travel to the areas
Senate Hearings 40; Report of the
Association of the Bar of the City of New York, Freedom to Travel
70 (1958). In any event, I believe that the evidence set out above
that Congress did not mean the 1926 Act to authorize the imposition
of area restrictions is sufficiently strong so that it is not
overcome by the fact that, after 1926, the Department on occasion
asserted that it had an inherent power to impose such
the Report of the Commission on Government Security
470, 471 (1957).
Although the United States has severed its diplomatic ties with
the Castro government, and, as the Court correctly points out,
at 381 U. S. 14
justifiably regards the Castro regime as hostile to this country,
the United States is not in a state of war with Cuba. See Banco
Nacional de Cuba v. Sabbatino, 376 U.
, 376 U. S.