Zemel v. Rusk

No. 86

Argued March 1, 1965

Decided May 3, 1965

381 U.S. 1

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE   DISTRICT OF CONNECTICUT

Syllabus



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.



Held:



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. 5-7.



2. The Passport Act of 1926 grants authority to the Executive to refuse

validation of passports for Cuban travel.  Pp. 7-13.



(a) The consistent interpretation by the Department of State of its

authority to impose area restrictions, both before and after [381 U.S.

2] the 1926 enactment, must be given weight by the courts in construing

the statute.  Pp. 8-11.



(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. 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. 13-18.



(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.

14.



(b) The restriction here is justified by the weightiest considerations

of national security.  Pp. 14-15.



(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. 16-17.



(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. 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. 17-18.



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. 18-20.



228 F.Supp. 65, affirmed. [381 U.S. 3] WARREN, J., lead opinion



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 interests."



Through an exchange of letters in early 1962, appellant, a citizen of

the United States and holder of an otherwise valid passport, applied to

the State Department to have his passport validated for travel to Cuba

as a tourist.  His [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.{1}  The complaint also requested that the Secretary be

directed to validate appellant's passport for travel to Cuba, and that

the Secretary and the Attorney General be enjoined from interfering with

such travel.  In his amended complaint, appellant added to his

constitutional attack on the 1926 and 1952 Acts a prayer that the

Secretary and the Attorney General be enjoined from enforcing them.



On appellant's motion, and over the objection of appellees, a

three-judge court was convened.  On cross-motions [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. 65 (D.C.D.Conn.1964).  We postponed

consideration of the jurisdictional question to the hearing of the case

on the merits, 379 U.S. 809. I



A direct appeal to this Court from a district court lies under 28 U.S.C.

 1253 (1958 ed.) only from an order granting or denying . . . an

interlocutory or permanent injunction in any civil action, suit or

proceeding required by any Act of Congress to be heard and determined by

a district court of three judges. Thus, we must deal first with the

Government's contention that a three-judge court was improperly

convened, for, if the contention is correct, this Court lacks

jurisdiction over the appeal.  Phillips v. United States, 312 U.S.

246, 248.



Section 2282 of Title 28 of the United States Code requires the

impaneling of a three-judge court in any case where the relief sought is

[a]n interlocutory or permanent injunction restraining the enforcement,

operation or execution of any Act of Congress for repugnance to the

Constitution of the United States. . . . On its face, appellant's

amended complaint, by calling upon the court below to enjoin the

enforcement of the Passport Act of 1926 and  215 of the Immigration and

Nationality Act of 1952, on the ground that those statutes are

unconstitutional, meets the requirements of  2282.  The Solicitor

General notes that appellant would be accorded full relief by the

voiding of the Secretary's order.  It is true that appellant's argument

-- that either the Secretary's order is not supported by the authority

granted him by Congress or the statutes granting that authority are

unconstitutional -- is two-pronged.  But we have often held that a [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.{2}



The Solicitor General, apparently conceding -- as all three judges below

agreed -- that appellant's Fifth Amendment attack is substantial, cf.

Kent v. Dulles, 357 U.S. 116, 125; Aptheker v. Secretary of

State, 378 U.S. 500, 505-506, 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,

and Ex parte Bransford, 310 U.S. 354, a three-judge court need not have

been convened.  We need not evaluate this contention, for appellant's

complaint also attacks the 1926 and 1952 Acts on the ground that "they

contain no standards, and are therefore an invalid delegation of

legislative power."  This allegation cannot be brushed aside as an

attack upon the actions of the Secretary; in arguing invalid delegation,

appellant has quite clearly assailed the statutes themselves.  The

Solicitor General therefore meets the delegation argument on another

ground:  by labeling it "frivolous."  Although we do not accept

appellant's delegation argument, infra pp. 17-18, we cannot agree

that it is so insubstantial as to compel a district court to read it out

of the complaint and refuse to convene a three-judge court.  Compare

William Jameson & Co. v. Morgenthau, 307 U.S. 171; Schneider v. Rusk,

372 U.S. 224.  Indeed, we explicitly noted in Kent v. Dulles, supra, at

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 [381 U.S. 7] then have been obliged to consider whether

those Acts were void for invalid delegation.{3}



The complaint therefore launches a substantial constitutional attack

upon two federal statutes, and prays that their operation be enjoined. 

Cf. Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715.  We hold that

the three-judge court was properly convened, and that we therefore have

jurisdiction over the appeal.{4} II



We think that the Passport Act of 1926, 44 Stat. 887, 22 U.S.C.  211a

(1958 ed.), embodies a grant of authority to the Executive to refuse to

validate the passports of United States citizens for travel to Cuba. 

That Act provides, in pertinent part: The Secretary of State may grant

and issue passports . . . under such rules as the President shall [381

U.S. 8] designate and prescribe for and on behalf of the United States.

. . .{5} This provision is derived from  23 of the Act of August 18,

1856, 11 Stat. 52, 60-61, which had, prior to 1926, been 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 September, 1923.

 [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.{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, pp. 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 assistance.  Id. 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. at 532-533. [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 certain countries. 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.{7}  In

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. at 736.  In October, 1955, the Secretary announced that

passports would no longer require special validation [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. at

756.



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. 1, 118; Norwegian Nitrogen Co. v. United States,

288 U.S. 294, 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.{8}  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,{9} provided that, after the

issuance of a presidential proclamation of war or national emergency, it

would be unlawful to leave or enter the [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,{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. 18-20.  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 313.{11}



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.  [381 U.S. 13] Appellant reminds us that, in summarizing

the Secretary's practice in Kent, we observed: 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 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.

III



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

[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 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 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.{12}



The requirements of due process are a function not only of the extent of

the governmental restriction imposed,{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.{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 [381 U.S. 15]

undertaken measures to discourage such travel.{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,{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. 

But 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 interfere

with [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 State, supra, 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,{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 restrictions [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 gather information.



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 domestic areas.



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 domestic affairs. United States

v. Curtiss-Wright Corp., 299 U.S. 304, 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 [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. Dulles, supra, at

128.  So limited, the Act does not constitute an invalid delegation.

IV



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. [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; cf. 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 liability.



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, 241.  The

complaint filed in this case does not specify the sort of travel to Cuba

appellant has in mind -- e.g., whether he 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.{18} 

Whether [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



Affirmed. BLACK, J., dissenting



MR. JUSTICE BLACK, dissenting.



Article I of the Constitution provides that



All 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.S. 500, 517 (concurring opinion); cf.

Kent v. Dulles, 357 U.S. 116.  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. 28-30.  We emphatically, and I think

properly, rejected a similar argument advanced to support a seizure of

the Nation's steel companies [381 U.S. 21] by the President. 

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579.  And 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. . . .{1} 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:{2} 

"This is delegation running riot.  No such plenitude of power is

susceptible of transfer."  [381 U.S. 22] A. L. A. Schechter Poultry

Corp. v. United States, 295 U.S. 495, 553 (concurring opinion).  See

also Panama Ref. Co. v. Ryan, 293 U.S. 388; cf. Kent v. Dulles, 357

U.S. 116, 129.



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.{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 [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 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.

DOUGLAS, J., dissenting



MR. JUSTICE DOUGLAS, with whom MR. JUSTICE GOLDBERG concurs, dissenting.



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 by 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.S. 116, 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 [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 126.



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 Terris, 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 [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.S. 296, 307) to meet a precise

evil.  Only last Term, in Aptheker v. Secretary of State, 378 U.S.

500, we 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, Id. at

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. [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 508, that 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, 307.



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. 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 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.* [381 U.S. 27]

GOLDBERG, J., dissenting



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.{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.{2}  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."{3}  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 [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. I. 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,

127.  In Aptheker v. Secretary of State, 378 U.S. 500, 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 system, [381 U.S. 29] ultimate responsibility for the

making of informed decisions rests in the hands of the people.  As

Professor Chafee has pointed out, 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 (1956).



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 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{4} to

leave this country and to travel to most parts of the world.  Kent v.

Dulles, supra, at 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 [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, that passport restrictions may be

imposed only when Congress makes provision therefor "in explicit terms,"

Kent v. Dulles, supra, at 130, consistent with constitutional

guarantees.  Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579.

 I would hold expressly that the Executive has no inherent authority to

impose area restrictions in time of peace. II. 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.), which provides,

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. [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 wrote:



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 at 863.  [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 18, 1856. 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.{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. [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.{6}  Until 50 years ago, peacetime limitations upon

the right of a citizen to travel were virtually unknown, see Chafee, 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 [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 Denmark: 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

Relief Commission. See 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, at 527; 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 [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.{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 [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."  See 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 Revolution, passports were refused to American

Communists who desired to go abroad for indoctrination, instruction,

etc.  This policy was continued until 1931. . . .{8}



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, supra, at 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 [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 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 128; cf. Youngstown Sheet & Tube Co.

v. Sawyer, 343 U.S. 579.  But see Kennedy v. Mendoza-Martinez, 372

U.S. 144.  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.{9}



While the Court intimates that Kent v. Dulles is distinguishable from

the present case because, in Kent v. Dulles, passports were denied on

the basis of the applicants' political beliefs, ante at 13, I find

little in the logic of that opinion to support such a distinction.  The

Court in Kent v. Dulles based its 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 [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 130, a 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 and Kent 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 Problem 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, supra, and Aptheker

v. Secretary of State, supra, but 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 at 195.



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 program, undertaken [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 Senate Hearings 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.  See

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. III. CONCLUSION



In my view, it is clear that Congress did not mean the 1926 Act to

authorize the Executive to impose area restrictions [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.S. 742, 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. Footnotes WARREN, J., lead opinion (Footnotes)



1. This procedural claim was abandoned in the District Court, and has

not been urged here.



2. Florida Lime Growers v. Jacobsen, 36 U.S. 73, 80; see also Allen v.

Grand Central Aircraft Co., 347 U.S. 535; Lee v. Bickell, 292 U.S. 415;

Sterling v. Constantin, 287 U.S. 378.



3. See also Douglas v. Noble, 261 U.S. 165.



4. The convening of a three-judge court in this case surely coincides

with the legislative policy underlying the passage of  2282: 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 injunction. Kennedy

v. Mendoza-Martinez, 372 U.S. 144, 154-155.  Appellant in this case does

not challenge merely a "single, unique exercise" of the Secretary's

authority, cf. Phillips v. United States supra at 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 Nation.



5. The Secretary of State, rather than the President, imposed the

restriction on travel to Cuba.  However, Congress has provided that

[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.



6. United States v. Cerecedo Hermanos y Compania, 209 U.S. 337; Service

v. Dulles, 354 U.S. 363, 380; Labor Board v. Gullett Gin Co., 340 U.S.

361, 366.



7. 22 Dept.State Bull. 399; 26 id. at.



8. Norwegian Nitrogen Co. v. United States, supra, at 313; Costanzo v.

Tillinghast, 287 U.S. 341, 345; United States v. Midwest Oil Co., 236

U.S. 459, 472-473.



9. Act of May 22, 1918, 40 Stat. 559 Act of June 21, 1941, 55 Stat. 52.



10. Pres.Proc. No. 3004, 67 Stat. c31; cf. Exec.Order No. 11037, 3 CFR

621 (1959-1963 Comp.).



11. 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.) provided: 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.



12. Aptheker v. Secretary of State, supra, at 505-514; Schachtman v.

Dulles, 96 U.S.App.D.C. 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).



13. Compare Kent v. Dulles, supra; Aptheker v. Secretary of State,

supra; Universal Declaration of Human Rights, Art. 13 (quoted. S.Doc.

No. 123, 81st Cong., 1st Sess., p. 1157); Korematsu v. United States,

323 U.S. 214, 218.



14. Cuba, Dept. of State Pub. No. 7171, pp. 25-36 (1961); see also Ball,

U.S. Policy Toward Cuba, Dept. State Pub. No. 7690, p. 3 (1964); 47

Dept.State Bull. 598-600.



15. See 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 (1964).



16. 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.



17. Indeed, it was precisely this sort of consideration which led us to

hold in Kent v. Dulles, supra, at 126-127, that the right to travel

is protected by the Fifth Amendment.  See also Aptheker v. Secretary of

State, supra, at 520 (DOUGLAS, J., concurring).



18. 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. at 10-11, 60-61. BLACK, J., dissenting (Footnotes)



1. 44 Stat. 887, 22 U.S.C.  211a (1958 ed.).



2. Act of June 16, 1933, 48 Stat. 195.



3. 66 Stat. 190, 8 U.S.C.  1185 (1964 ed.). DOUGLAS, J., dissenting

(Footnotes)



* 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, 488.  See, e.g., Lovell v.

Griffin, 303 U.S. 444; Schneider v. State, 308 U.S. 147; 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.S. 232, 239; Louisiana ex rel.

Gremillion v. NAACP, 366 U.S. 293; NAACP v. Button, 371 U.S. 415;

Aptheker v. Secretary of State, supra. GOLDBERG, J., dissenting

(Footnotes)



1. U.S. Dept. of State, Summary of Passport Statistics Jan. 1965.



2. Very recently, the President has requested citizens voluntarily and

temporarily to limit their travel abroad because of balance of payments

difficulties.



3. See U.S. Dept. of State, The American Passport 10 (1898).



4. 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.



5. 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.



6. See Kent v. Dulles, supra, at 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.



7. 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 11.  See Norwegian Nitrogen Co.

v. United States, 288 U.S. 294.  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 policy objectives. 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 restricted. 

See 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

restrictions.



8. See the Report of the Commission on Government Security 470, 471

(1957).



9. Although the United States has severed its diplomatic ties with the

Castro government, and, as the Court correctly points out, ante at

14-15, 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.S. 398, 410.

