presidential declaration of the existence of a national emergency.
2. The Secretary of State relies separately for his authority to control travel to Cuba on the Passport Act of 1926, 22 U.S.C. § 211a. This statute, unlike the Immigration and Nationality Act of 1952 § (215(c), 8 U.S.C. § 1185(c)), contains no criminal penalty. It 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.'
In Kent v. Dulles the Passport Act was described as intended to centralize the power to issue passports in the Secretary of State and to remove such power from the various federal, state and local officials who in the past had issued passports or similar documents. (357 U.S. p. 123, 78 S. Ct. 1113, 2 L. Ed. 2d 12 04). The Court said that the administrative practice on refusal of passports at the time of the adoption of the Act 'had jelled only' around the two categories of allegiance and criminal conduct. The specification of these two categories of administrative practice was not intended, of course, as an authoritative determination excluding all others. For the Court was dealing with administrative practice only 'so far as relevant' to the question of personal beliefs of passport applicants. The Court expressly recognized that 'one can find in the records of the State Department rulings of subordinates covering a wider range of activities than the two indicated. But as respects Communists
these are scattered rulings and not consistently of one pattern.' (357 U.S. p. 128, 78 S. Ct. p. 1119, 2 L. Ed. 2d 1204). There is a long history of administrative practice imposing geographical limitations both before and after 1926. The State Department refused to issue passports valid for travel in enemy countries during the First World War. In 1935 passports were denied for travel in Ethiopia following the Italo-Ethiopian conflict. Spain was declared 'off limits' to American travelers after the Civil War erupted in 1936. Passports were stamped 'not valid for travel in or to China' because of the Sino-Japanese conflict in 1937.
On March 31, 1938, the President issued Executive Order No. 7856,
which authorized the Secretary of State 'in his discretion to refuse to issue a passport, to restrict a passport for use only 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'.
In the cold war era travel to Albania, Bulgaria, China, Czechoslovakia, Hungary, Poland, Roumania, and the Soviet Union was restricted in 1952.
In 1955 these restrictions were removed except as to Albania, Bulgaria and Communist China, and restrictions were imposed on travel to Korea and Vietnam.
These past practices were not considered by the Court in Kent v. Dulles, for they were not relevant to the problem there presented. The distinction between the denial of passports to individual Americans because of their personal beliefs and geographical limitations which are impersonal had been recognized while the Kent case was in the Court of Appeals for the District of Columbia Circuit. Judge Bazelon said in a dissenting opinion in which Chief Judge Edgerton concurred: 'Proclamation No. 3004 did not undertake to grant power to the Secretary to control travel by establishing additional categories of passport ineligibility. * * * It grants the Secretary discretion of the type already exercised in his existing travel control regulations, namely, to determine which parts of the world can be visited by Americans only if they have passports, but not to determine which Americans are to receive passports.'
I conclude that the Secretary has authority to impose geographical restrictions on the use of passports by virtue of his general power under the Passport Act of 1926.
Plaintiffs contend that § 215 of the Immigration and Nationality Act of 1952, if construed to authorize the Secretary of State to impose geographical restrictions on foreign travel, is constitutionally defective because of vagueness, because it constitutes an unlawful delegation of legislative power to the Executive, and because it constitutes a deprivation of liberty without due process.
1. The argument as to vagueness is not strongly pressed. In any event, a statute making it unlawful to depart from the United States without a valid passport does not force men of common intelligence to guess at its meaning, as was the case with statutes referring to 'current rate of wages,'
or 'violent' news.
2. Plaintiffs rely on Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 15 70 (1935), for their contention of unlawful delegation. The Supreme Court there held that the delegation of power to the President under the National Industrial Recovery Act was unconstitutional because it gave him 'unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.'
Soon after Schechter was decided, the Supreme Court in United States v. Curtiss-Wright Corp.,
upheld a broad delegation of power to the President to control the sale of arms and munitions to certain foreign countries. The Court noted that legislation in the area of foreign affairs 'must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.'
Citing the President's superior sources of information, the Court emphasized 'the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed.'
There is an important difference between the power delegated to the President under § 215 and the complete freedom to regulate the national economy unguided by congressional policy decisions or standards which was held unconstitutional in Schechter. The President does not have the central role in the regulation of internal economic affairs that he has in the conduct of the nation's foreign relations.
Moreover, there is not that limitless range of choice available in passport issuance that exists in the regulation of the national economy.
Section 215 authorizes passport control in the limited circumstances of war or national emergency proclaimed by the President. It conditions such control on a finding by the President that the interests of the United States require restrictions and prohibitions on travel abroad. All this is an assertion of § congressional control over travel based on the war power, combined with executive control over passports incident to the conduct of foreign affairs, and from its nature justifies a wider generality of delegation than would be permissible in the regulation of the domestic economy.
3. Finally, neither § 215 of the Immigration and Nationality Act of 1950 nor the Passport Act of 1926 construed to authorize the imposition of geographical limitations is unconstitutional. The Court in Kent v. Dulles made it clear that the liberty to travel is subject to appropriate and reasonable regulation, although it was 'not (called upon to) decide the extent to which it can be curtailed'. (357 U.S. p. 127, 78 S. Ct. p. 1119, 2 L. Ed. 2d 1204). The restrictions which are here involved and the circumstances surrounding them have already been fully reviewed. They deal, as we have seen, with the safety of the nation in its relations with the nations of the world. Judged by the fundamental need of self-preservation, the Government's restriction on plaintiffs' freedom to travel is a reasonable one which does not deprive them of substantive due process.
And now, March 30, 1964, plaintiffs' motion for summary judgment is denied, and defendants' motion for summary judgment is granted. An appropriate form of judgment may be submitted by defendants on notice to plaintiffs.
And now, April 20, 1964, the above entitled cause having come before the Court on cross-motions of the parties for summary judgment, and the Court having considered all pleadings and papers filed herein and having heard oral argument of counsel for each side, and the Court having issued and filed its opinion and order on March 30, 1964, denying plaintiffs' motion for summary judgment and granting defendants' motion for summary judgment, it is hereby adjudged and decreed that:
(1) Plaintiffs are not entitled, under the Constitution and laws of the United States, to travel to Cuba without a passport specifically endorsed by the Secretary of State for such travel;
(2) Plaintiffs' travel to Cuba without a passport so endorsed will violate the passport laws of the United States, the Immigration and Nationality Act of 1952, the State Department's rules and regulations, and the terms and conditions of their passport;
(3) Defendant Secretary of State's restrictions upon travel to Cuba are within the inherent power of the Executive and this power has not been unreasonably exercised;
(4) Defendant Secretary of State's restrictions upon travel to Cuba are authorized by the Passport Act of 1926 and by Section 215 of the Immigration and Nationality Act of 1952;
(5) Such statutes so construed do not unconstitutionally infringe upon plaintiffs' rights.