Caseflicks

Supreme Court of the United States • 1958

Kent v. Dulles

357 U.S. 116 | 78 S. Ct. 1113 | 2 L. Ed. 2d 1204 | 1958 U.S. LEXIS 814

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Takeaway

In short, this case holds that the Secretary of State may not deny a citizen a passport because of political beliefs or associations unless Congress clearly authorizes that restriction on the constitutional liberty to travel.

Background

Rockwell Kent and Dr. Walter Briehl, both American citizens, applied for passports to travel abroad. State Department regulations permitted denial of passports to Communists, persons who adhered to the Communist Party line, and persons thought likely to advance the Communist movement abroad. The Department also required applicants suspected of Communist affiliation to submit a sworn affidavit stating whether they then were or had ever been members of the Communist Party.

Kent and Briehl refused to submit the affidavit, arguing that their political beliefs and associations were irrelevant to their entitlement to a passport. After administrative proceedings, the Department declined to consider their applications further unless they complied. Each sued for declaratory relief. The District Court ruled for the Secretary of State, and the en banc Court of Appeals affirmed by a divided vote. The Supreme Court granted certiorari and reversed.

Issues

Issue #1

Whether the freedom to travel abroad is part of the liberty protected by the Fifth Amendment.

Holding

Yes. Freedom of movement, including travel across national borders, is an important aspect of the liberty protected by the Fifth Amendment's Due Process Clause.

Reasoning

The Court treated freedom of movement as deeply rooted in Anglo-American legal tradition and in the Nation's constitutional heritage. Travel abroad may be essential to work, family relationships, education, access to information, and participation in public life; it is therefore not a trivial privilege that the Government may restrict casually.

The Solicitor General conceded that the right to travel is part of Fifth Amendment liberty. Although the Court did not decide the full range of permissible restrictions on foreign travel, it began with the premise that the Government was burdening a constitutionally protected activity.

Issue #2

Whether the passport statutes authorized the Secretary of State to deny or withhold consideration of passports because applicants refused to answer questions about Communist Party membership and associations.

Holding

No. Neither 22 U.S.C. § 211a nor 8 U.S.C. § 1185 delegated authority to restrict a citizen's travel abroad on the basis of political beliefs or associations.

Reasoning

Section 211a allowed the Secretary to issue passports under presidentially prescribed rules, and § 1185 made a valid passport necessary for foreign travel during a proclaimed national emergency. But broad language conferring administrative discretion does not, without clearer direction, authorize an official to burden a constitutional liberty.

Historically, the Secretary's passport discretion had generally been exercised in two relevant areas: determining citizenship or allegiance, and preventing unlawful conduct, such as evasion of criminal process, passport fraud, or travel for illegal purposes. The denials here rested instead on suspected political affiliation and ideological sympathy.

The Court narrowly construed delegated power when its exercise would curtail an ordinary and important freedom of citizens. Congress had not expressly directed that citizens could be denied passports because they were Communists, supported Communist causes, or refused to disclose their political associations.

Congress had enacted an Internal Security Act provision specifically restricting passports for certain members of registered Communist organizations, but that provision had not yet become operative. That explicit but inactive statutory scheme made it especially implausible to infer that Congress had silently given the Secretary a broader power to restrict all suspected Communists' foreign travel.

Kent and Briehl had not been accused or convicted of crimes, nor were they alleged to be fleeing the law or planning unlawful conduct. The Secretary could not use the passport power to compel inquiry into their beliefs and associations when Congress had not clearly authorized that ground for restricting travel.

Issue #3

Whether the challenged passport regulations violated the Constitution through improper delegation or infringement of First and Fifth Amendment rights.

Holding

The Court did not decide those constitutional questions.

Reasoning

Because the passport statutes did not authorize the Secretary's use of political beliefs, associations, or refusal to submit the Communist-affiliation affidavit as grounds for withholding passports, the regulations failed as a matter of statutory authority.

The Court applied the principle that statutes should be construed to avoid serious constitutional questions where a narrower, reasonable interpretation is available. Holding that Congress had authorized these restrictions would have raised substantial questions concerning delegation, freedom of association, and due process.

Dissents

Justice Clark

Reasoning

Justice Clark maintained that Congress had long given the Secretary broad discretionary authority over passports. Since 1917, Congress had also required passport applicants to provide whatever factual information the Secretary's rules demanded. In his view, the requested affidavit was authorized if Communist affiliation was relevant to a permissible basis for denial.

He read the history of the 1918 travel-control law, its 1941 amendment, and § 215 of the 1952 Immigration and Nationality Act as showing a congressional purpose to permit the Executive to prevent travel harmful to national security. Those statutes were intended to address espionage, hostile foreign influence, and other activity threatening the United States even where ordinary criminal prosecution was impractical.

Justice Clark rejected the majority's conclusion that past passport denials were limited to questions of citizenship, allegiance, and illegal conduct. He cited State Department practice, executive statements, and congressional materials indicating that passports had also been denied on national-security grounds, including to Communists and revolutionary radicals.

He also thought the majority drew an artificial distinction between wartime and peacetime practice. The operative statute applied during a presidentially declared national emergency, and such an emergency remained in effect amid the Cold War. Because Congress had retained passport-based exit control in that setting, he concluded that the Secretary could require the affidavits and would have affirmed without reaching the constitutional issues.