Kent v. Dulles/Dissent Clark

by Tom C. Clark

United States Supreme Court

357 U.S. 116

Kent  v.  Dulles

 Argued: April 10, 1958. --- Decided: June 16, 1958

Mr. Justice CLARK, with whom Mr. Justice BURTON, Mr. Justice HARLAN, and Mr. Justice WHITTAKER concur, dissenting.

On August 28, 1952, acting under authority vested by Executive Order No. 7856, 22 CFR § 51.77, the Secretary of State issued the regulations in question, § 51.142 of which provides that a passport applicant may be required to make a statement under oath 'with respect to present or past membership in the Communist Party.' 22 CFR § 51.142. Since 1917, the Congress has required that every passport application 'contain a true recital of each and every matter of fact which may be required by * * * any rules' of the Secretary of State, and that requirement must be satisfied '(b)efore a passport is issued to any person.' 40 Stat. 227, 22 U.S.C. § 213, 22 U.S.C.A. § 213. In the context of that background, the Secretary asked for, and petitioners refused to file, affidavits stating whether they then were or ever had been members of the Communist Party. Thereupon the Secretary refused to further consider petitioners' applications until such time as they filed the required affidavits.

The Secretary's action clearly must be held authorized by Congress if the requested information is relevant to any ground upon which the Secretary might properly refuse to issue a passport. The Court purports today to preclude the existence of such a ground by holding that the Secretary has not been authorized to deny a passport to a Communist whose travel abroad would be inimical to our national security.

In thus construing the authority of the Secretary, the Court recognizes that all during our history he has had discretion to grant or withhold passports. That power, first exercised without benefit of statute, was made the subject of specific legislative authority in 1856 when the Congress consolidated all power over passports in the hands of the Secretary. 11 Stat. 60-61. In 1874 the statutory language, 'shall be authorized to grant and issue,' was changed to 'may grant and issue.' 1874 R.S. § 4075. In slightly modified form, the Secretary's power has come through several re-enactments, e.g., 44 Stat., Part 1, p. 657 in 1926, to its present-day embodiment in 44 Stat., Part 2, p. 887, 22 U.S.C. § 211a, 22 U.S.C.A. § 211a.

This discretionary authority, which we proviously acknowledged in Perkins v. Elg, 1939, 307 U.S. 325, 349-350, 59 S.Ct. 884, 896, 83 L.Ed. 1320, was exercised both in times of peace and in periods of war. During was and other periods of national emergency, however, the importance of the Secretary's passport power was tremendously magnified by a succession of 'travel-control statutes' making possession of a passport a legal necessity to leaving or entering this country. The first of these was enacted in 1815 just prior to the end of the War of 1812, when it was made illegal for any citizen to 'cross the frontier' into enemy territory without a passport. 3 Stat. 199. After the same result was accomplished during the Civil War without congressional sanction, 3 Moore, International Law Digest, 1015-1021, World War I prompted passage in 1918 of the second travel-control statute, 40 Stat. 559. The 1918 statute, directly antecedent to presently controlling legislation, provided that in time of war and upon public proclamation by the President that the public safety required additional travel restrictions, no citizen could depart from or enter into the country without a passport. Shortly thereafter, President Wilson made the required proclamation of public necessity, and provided that no citizen should be granted a passport unless it affirmatively appeared that his 'departure or entry is not prejudicial to the interests of the United States.' Proc. No. 1473, 40 Stat. 1829.

The legislative history of the 1918 Act sharply indicates that Congress meant the Secretary to deny passports to those whose travel abroad would be contrary to our national security. The Act came to the floor of the House of Representatives accompanied by the following explanation in the Report of the House Committee on Foreign Affairs, H.R.Rep. No. 485, 65th Cong., 2d Sess. 2-3:

'That some supervision of travel by American citizens is essential appeared from statements made before the committee at the hearing upon the bill. One case was mentioned of a United States citizen who recently returned from Europe after having, to the knowledge of our Government, done work in a neutral country for the German Government. There was strong suspicion that he came to the United States for no proper purpose. Nevertheless not only was it impossible to exclude him but it would now be impossible to prevent him from leaving the country if he saw fit to do so. The known facts in his case are not sufficient to warrant the institution of a criminal prosecution, and in any event the difficulty of securing legal evidence from the place of his activities in Europe may easily be imagined.

'It is essential to meet the situation that the Executive should have wide discretion and wide authority of action. No one can foresee the different means which may be adopted by hostile nations to secure military information or spread propaganda and discontent. It is obviously impracticable to appeal to Congress for further legislation in each new emergency. Swift Executive action is the only effective counterstroke.

'The committee was informed by representatives of the executive departments that the need for prompt legislation of the character suggested is most pressing. There have recently been numerous suspicious departures for Cuba which it was impossible to prevent. Other individual cases of entry and departure at various points have excited the greatest anxiety. This is particularly true in respect of the Mexican border, passage across which can not legally be restricted for many types of persons reasonably suspected of aiding Germany's purposes.' During debate of the bill on the floor of the House, its House spokesman stated:

'The Government is now very much hampered by lack of authority to control the travel to and from this country, even of people suspected of not being loyal, and even of those whom they suspect of being in the employ of enemy governments.' 56 Cong.Rec. 6029.

'Our ports are open, so far as the law is concerned, to alien friends, citizens, and neutrals, to come and go at will and pleasure, and that notwithstanding the Government may suspect the conduct and the intention of the individuals who come and go.' Id. at 6065.

His counterpart in the Senate stated in debate:

'The chief object of the bill is to correct a very serious trouble which the Department of State, the Department of Justice, and the Department of Labor are having with aliens and alien enemies and renegade American citizens, I am sorry to say, entering the United States from nests they have in Cuba and over the Mexican border. They can now enter and depart without any power of the departments or of the Government to intercept or delay them. There is no law that covers this case. It is believed that all the information which goes to Germany of the war preparations of the United States and of the transportation of troops to France passes through Mexico. The Government is having a great deal of trouble along that border. It is an everyday occurrence, and the emergency of this measure is very great. The bill is supplementary to the espionage laws and necessary for their efficient execution in detecting and punishing German spies.' 56 Cong.Rec. 6192.

The implication is unmistakable that the Secretary was intended to exercise his traditional passport function in such a manner as would effectively add to the protection of this country's internal security.

That the Secretary so understood and so exercised his passport power in this period is evident from two State Department documents in 1920. A memorandum of the Under Secretary of State, dated November 30, 1920, declared, 'Any assistance in the way of passport facilities, which this Government may render to a person who is working either directly or indirectly in behalf of the Soviet Government is a help to the Soviet Government * * *.' Memorandum Re Applicants for Passports Who are Bolshevists or Who are Connected with Bolshevist Government, Code No. 5000. Accordingly, it was recommended that passports be refused any person 'who counsels or advocates publicly or privately the overthrow (of) organized Governments by force.' Id. Among the examples stated were '(m)embers of the Communist Party.' Id. Two weeks later, the State Department published office instructions, dated December 16, 1920, to our embassies throughout the world, implementing Code No. 5000 by prohibiting issuance of passports to 'anarchists' and 'revoluntionary radicals.' Expressly included among the proscribed classes of citizens were those who 'believe in or advocate the overthrow by force or violence of the Government of the United States,' as well as all those who 'are members of or are affiliated with any organization' that believes in or advocates such overthrow.

By its terms a war statute, the 1918 Act expired in March 1921, see 41 Stat. 1359, after which no more travel controls existed until 1941. In that year, Congress amended the 1918 Act so as to provide the same controls during the national emergency proclaimed by the President on May 27, 1941, should the President find and publicly proclaim that the interest of the United States required that such restrictions be reimposed. 55 Stat. 252. Shortly thereafter, President Roosevelt invoked this authority, 55 Stat. 1696, and implementing regulations were issued by the State Department. 22 CFR § 53. The legislative history of the 1941 amendment is as clear as that of the 1918 Act: the purpose of the legislation was to so use the passport power of the Secretary as to block travel to and from the country by those persons whose passage would not be in the best interests and security of the United States. The Report of the Senate Committee on the Judiciary, S.Rep. No. 444, 77th Cong., 1st Sess. 1-2, declared:

'Since the outbreak of the present war it has come to the attention of the Department of State and of other executive departments that there are many persons in and outside of the United States who are directly engaged in espionage and subversive activities in the interests of foreign governments, and others who are engaged in activities inimical to the best interests of the United States, who desire to travel from time to time between the United States and foreign countries in connection with their activities * * *.'

During debate on the House floor, the 'sole purpose' of the bill was stated to be establishment of 'a sort of clearing house,' where those persons wishing to enter or leave the country 'would have to give their reasons why they were going or coming, and where it would be determined whether * * * their coming in or going our would be inimical to the interests of the United States.' 87 Cong.Rec. 5052. See also 87 Cong.Rec. 5048-5053, 5386-5388. The carrying out of this legislative purpose resulted in a 'complete change in emphasis of the work of the Division from that of an agency to afford protection to the individual to that of one whose principal purpose was to safeguard and maintain the security of the state.' 12 Dept.State Bull. 1070. That transformation involved 'the clearance upon a basis of security for the state of the entry and departure of hundreds of thousands of persons into and from the United States.' Id. (Emphasis added.)

While the national emergency to which the 1941 amendment related was officially declared at an end on April 28, 1952, Proc. No. 2974, 66 Stat. C31, Congress continued the provisions of the Act in effect until April 1, 1953. 66 Stat. 54. In that interim period, Congress passed the Immigration and Nationality Act of 1952, which both repealed the 1918 Act as amended in 1941, 66 Stat. 279, and reenacted it as § 215 of the 1952 Act, amending it only to the extent that its provisions would be subject to invocation 'during the existence of any national emergency proclaimed by the President.' 66 Stat. 190. There is practically no legislative history on this incorporation of the 1918 statute in the 1952 Act apart from a comment in the House Report that the provisions of § 215 are 'incorporated in the bill * * * in practically the same form as they now appear in the act of May 22, 1918.' H.R. Rep. No. 1365, 82d Cong., 2d Sess. 53. For that reason, the legislative history of the 1918 Act and the 1941 amendment, which I have set out at some detail, is doubly important in ascertaining the intent of the Congress as to the authority of the Secretary to deny passports under § 215 of the 1952 Act. Cf. United States v. Plesha, 1957, 352 U.S. 202, 205, 77 S.Ct. 275, 277, 1 L.Ed.2d 254.

At the time of the 1952 Act, a national emergency proclaimed by President Truman on December 16, 1950, in response to the Korean conflict, was-and still is today-in existence. Proc. No. 2914, 64 Stat. A454, 50 U.S.C.A. Appendix, note preceding section 1. In reliance on that, the President invoked the travel restrictions of § 215 on January 17, 1953. Proc. No. 3004, 67 Stat. C31. The proclamation by which this was done carefully pointed out that none of its provisions should be interpreted as revoking any regulation 'heretofore issued relating to the departure of persons from, or their entry into, the United States.' Id. Among the regulations theretofore issued were those now attacked relating to the issuance of passports to Communists, for they had been promulgated to be effective on August 28, 1952, shortly after passage of the 1952 Act. 17 Fed.Reg. 8013.

Congress, by virtue of § 215 of the 1952 Act, has approved whatever use of his discretion the Secretary had made prior to the June 1952 date of that legislation. ^[1] That conclusion necessarily follows from the fact that § 215 continued to make legal exit or entry turn on possession of a passport, without in any way limiting the discretionary passport power theretofore exercised by the Secretary. See United States v. Allen-Bradley Co., 1957, 352 U.S. 306, 310-311, 77 S.Ct. 343, 345-346, 1 L.Ed.2d 347; Allen v. Grand Central Aircraft Co., 1954, 347 U.S. 535, 544-545, 74 S.Ct. 745, 750-751, 98 L.Ed. 933; United States v. Cerecedo Hermanos y Compan ia, 1908, 209 U.S. 337, 339, 28 S.Ct. 532, 533, 52 L.Ed. 821. But the Court then determines (1) that the Secretary's denial of passports in peacetime extended to only two categories of cases, those involving allegiance and those involving criminal activity, and (2) that the Secretary's wartime exercise of his discretion, while admittedly more restrictive, has no relevance to the practice which Congress can be said to have approved in 1952. Since the present denials do not involve grounds either of allegiance or criminal activity, the Court concludes that they were beyond the pale of congressional authorization. Both of the propositions set out above are vital to the Court's final conclusion. Neither of them has any validity: the first is contrary to fact, and the second to common sense.

The peacetime practice of the State Department indisputably involved denial of passports for reasons of national security. The Report of the Commission on Government Security (1957), 470-473, summarizes the Department's policy on granting passports to Communists by excerpts from State Department documents. Shortly after the 1917 Russian Revolution, the Department 'became aware of the scope and danger of the world-wide revolutionary movement and the attendant purpose to overthrow all existing governments, including our own.' Thereafter 'passports were refused to American Communists who desired to go abroad for indoctrination, instruction, etc. This policy was continued until 1931 * * *.' (Emphasis added.) From 1931 'until World War II no persons were refused passports because they were Communists.' After World War II, '(a)t first passports were refused,' but upon reconsideration of the matter in 1948, 'the decision was made that passports would be issued to Communists and supporters of communism who satisfied the Department that they did not intend, while abroad, to engage in the promotion of Communist activities.' At the same time, however, it was decided that 'passports should be refused to persons whose purpose in traveling abroad was believed to be to subvert the interest of the United States.' Later in 1948 the policy was changed to give Communist journalists passports even though they were 'actively promoting the Communist cause.' Nearly two years later, in September 1950, the latter leniency was reversed, after it was pointed out 'that the Internal Security Act of 1950 clearly showed the desire of Congress that no Communists should be issued passports of this Government.' ^[2] The matter was referred to the Department's Legal Adviser, 'who agreed that it was the duty of the State Department to refuse passports to all Communists, including journalists.'

Other evidence of peacetime denials for security reasons is more scattered, but nevertheless existent. Much of it centers around opposition to the Internal Security Act of 1950, for one of the stated aims of that legislation was denial of passports to Communists. The minority report of the Senate Committee on the Judiciary objected, 'But this can be done under the existing discretionary powers of the Secretary of State * * * as evidenced by the recent denial or cancellation of a passport to Paul Robeson.' S.Rep.No. 2369, Part 2, 81st Cong., 2d Sess. 10. President Truman, in vetoing that Act, stated: 'It is claimed that this bill would deny passports to Communists. The fact is that the Government can and does deny passports to Communists under existing law.' 96 Cong.Rec. 15631. ^[3]

In 1869 Attorney General Hoar advised the Secretary of State that good reason existed for the passport power being discretionary in nature, for it might sometimes be 'most inexpedient for the public interests for this country to grant a passport to a citizen of the United States.' 23 Op.Atty.Gen. 509, 511. As an example he referred to the case of 'an avowed anarchist,' for if such person were to seek a passport, 'the public interests might require that his application be denied.' Ibid. See also, 13 Op.Atty.Gen. 89, 92.

Orders promulgated by the Passport Office periodically have required denial of passports to 'political adventurers' and 'revolutionary radicals,' the latter phrase being defined to include 'those who wish to go abroad to take part in the political or military affairs of foreign countries in ways which would be contrary to the policy or inimical to the welfare of the United States.' See, shortly after the end of World War I, Passport Office Instructions of May 4, 1921; in 1937, Passport Office Instructions of July 30, 1937; in 1948, Foreign Service Regulations of July 9, 1948.

An even more serious error of the Court is its determination that the Secretary's wartime use of his discretion is wholly irrelevant in determining what discretionary practices were approved by Congress in enactment of § 215. In a wholly realistic sense there is no peace today, and there was no peace in 1952. At both times the state of national emergency declared by the President in 1950, wherein he stated that 'world conquest communist imperialism is the goal of the forces of aggression that have been loosed upon the world' and that 'the increasing menace of the forces of communist aggression requires that the national defense of the United States be strengthened as speedily as possible,' was in full effect. Proc. No. 2914, 64 Stat. A454. It is not a case, then, of judging what may be done in peace by what has been done in war. Professor Jaffe has aptly exposed the fallacy upon which the majority proceeds:

'The criterion here is the defense of the country from external enemies. It is asserted that the precedents of 'war' have no relevance to 'peace.' But the critical consideration is defense against an external enemy; and communication abroad between our citizens and the enemy cannot by its nature be controlled by the usual criminal process. The facts in a particular case as to the citizen's intention are inevitably speculative: all is to be done after the bird has flown. Now our Congress and the Administration have concluded that the Communist International is a foreign and domestic enemy. We deal with its domestic aspect by criminal process; we would seem justified in dealing with its external aspect by exit control. If an avowed Communist is going abroad, it may be assumed that he will take counsel there with his fellows, will arrange for the steady and dependable flow of cash and information, and do his bit to promote the purposes of the 'conspiracy." Jaffe, The Right to Travel: The Passport Problem, 35 Foreign Affairs 17, 26.

Were this a time of peace, there might very well be no problem for us to decide, since petitioners then would not need a passport to leave the country. The very structure of § 215 is such that either war or national emergency is prerequisite to imposition of its restrictions.

Indeed, rather than being irrelevant, the wartime practice may be the only relevant one, for the discretion with which we are concerned is a discretionary control over international travel. Yet only in times of war and national emergency has a passport been required to leave or enter this country, and hence only in such times has passport power necessarily meant power to control travel. ^[4]

Finally, while distinguishing away the Secretary's passport denials in wartime, the majority makes no attempt to distinguish the Secretary's practice during periods when there has been no official state of war but when nevertheless a a presidential proclamation of national emergency has been in effect, the very situation which has prevailed since the end of World War II. Throughout that time, as I have pointed out, the Secretary refused passports to those 'whose purpose in traveling abroad was believed to be to subvert the interest of the United States.' Report of the Commission on Government Security, supra. Numerous specific instances of passport denials on security grounds during the years 1947-1951 were reported in a February 1952 law review article, nearly half a year prior to passage of § 215. Note, Passport Refusals for Political Reasons, 61 Yale L.J. 171.

On this multiple basis, then, I am constrained to disagree with the majority as to the authority of the Secretary to deny petitioners' applications for passports. The majority's resolution of the authority question prevents it from reaching the constitutional issues raised by petitioners, relating to claimed unlawful delegation of legislative power, violation of free speech and association under the First Amendment, and violation of international travel under the Fifth Amendment. In view of that, it would be inappropriate for me, as a dissenter, to consider those questions at this time. Cf. Peters v. Hobby, 1955, 349 U.S. 331, 353-357, 75 S.Ct. 790, 801-803, 99 L.Ed. 1129. Accordingly, I would affirm on the issue of the Secretary's authority to require the affidavits involved in this case, without reaching any constitutional questions.

Notes

1. This is not seriously disputed by the majority. However, reference is made to a reluctance to interpret broadly the practice of the Secretary approved by Congress in the 1952 Act because the denial of passports on security grounds had not 'jelled' at the time of the 1926 Act. But that overlooks (1) that it is congressional intent in the 1952 statute, not the 1926 statute, to which we look, and (2) that there is abundant evidence, set out in this opinion, of security denials before as well as after 1926.
2. For a comprehensive story of Communism in America indicating the necessity for passport control, see Hoover, Masters of Deceit (1958).
3. To the same effect see the statement of Senator Kilgore during Senate debate on the Act, 96 Cong.Rec. 14538, and an amendment offered to the Act in both the House, 96 Cong.Rec. 13756, and Senate, 96 Cong.Rec. 14599.
4. Peacetime exercise of the passport power may still be relevant from another point of view, namely, if other countries hinge entry on possession of a passport, the right of international travel of a United States citizen who cannot secure a passport will thereby be curtailed. For though he can get out of this country, he cannot get into another.