|Kent v. Dulles
101 U.S.App.D.C. 278, 239, 248 F.2d 600, 561, reversed.
[ Douglas ]
[ Clark ]
Kent v. Dulles
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
At a time when an Act of Congress required a passport for foreign travel by citizens if a state of national emergency had been declared by the President, and when the Proclamation necessary to make the Act effective had been made, the Secretary of State denied passports to petitioners because of their alleged Communistic beliefs and associations and their refusal to file affidavits concerning present or past membership in the Communist Party.
Held: The Secretary was not authorized to deny the passports for these reasons under the Act of July 3, 1926, 22 U.S.C. § 211a or § 215 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1185. Pp. 117-130.
(a) The right to travel is a part of the "liberty" of which a citizen cannot be deprived without due process of law under the Fifth Amendment. Pp. 125-127.
(b) The broad power of the Secretary under 22 U.S.C. § 211a to issue passports, which has long been considered "discretionary," has been construed generally to authorize the refusal of a passport only when the applicant (1) is not a citizen or a person owing allegiance to the United States, or (2) was engaging in criminal or unlawful conduct. Pp. 124-125, 127-128.
(c) This Court hesitates to impute to Congress, when, in 1952, it made a passport necessary for foreign travel and left its issuance to the discretion of the Secretary of State, a purpose to give him unbridled discretion to withhold a passport from a citizen for any substantive reason he may choose. P. 128.
(d) No question concerning the exercise of the war power is involved in this case. P. 128.
(e) If a citizen's liberty to travel is to be regulated, it must be pursuant to the lawmaking functions of Congress, any delegation of the power must be subject to adequate standards, and such delegated authority will be narrowly construed. P. 129.
(f) The Act of July 3, 1926, 22 U.S.C. § 211a and § 215 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1185 do not delegate to the Secretary authority to withhold passports to [p117] citizens because of their beliefs or associations, and any Act of Congress purporting to do so would raise grave constitutional questions. Pp. 129-130.
(g) The only Act of Congress expressly curtailing the movement of Communists across our borders, §§ 2 and 6 of the Internal Security Act of 1950, has not yet become effective, because the Communist Party has not registered under that Act, and there is not in effect a final order of the Board requiring it to do so. P. 121, n. 3, p. 130.