Haig v. Agee
453 U.S. 280 (1981)
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Rule of Law:
The Passport Act of 1926 implicitly authorizes the Secretary of State to revoke a citizen's passport on the grounds that the holder's activities abroad are causing or are likely to cause serious damage to the national security or foreign policy of the United States.
Facts:
- Philip Agee was employed by the Central Intelligence Agency (CIA) from 1957 to 1968, during which time he received training in clandestine operations and signed an agreement not to disclose classified information without Agency approval.
- In 1974, Agee announced a campaign to fight the CIA by exposing its officers and agents.
- Agee traveled extensively to foreign countries to carry out his campaign, recruiting collaborators and publicly identifying individuals he claimed were undercover CIA personnel.
- Agee's disclosures revealed classified information and violated his secrecy agreement with the CIA.
- The government asserted that Agee's identifications of personnel were followed by episodes of violence against those individuals.
- In December 1979, the Secretary of State revoked Agee's passport, notifying him that his activities abroad were causing or likely to cause serious damage to U.S. national security or foreign policy.
Procedural Posture:
- Philip Agee sued the Secretary of State in the U.S. District Court for the District of Columbia, seeking declaratory and injunctive relief.
- For the purposes of a summary judgment motion, Agee conceded the government's factual assertions regarding his activities and their likely damage to national security.
- The District Court, a court of first instance, granted summary judgment for Agee, holding that the regulation authorizing the passport revocation exceeded the Secretary's statutory authority.
- The Secretary of State, as appellant, appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit.
- A divided panel of the intermediate appellate court affirmed the District Court's judgment in favor of Agee, the appellee.
- The U.S. Supreme Court granted the Secretary of State's petition for a writ of certiorari.
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Issue:
Does the Passport Act of 1926 authorize the Secretary of State to revoke a citizen's passport on the grounds that the citizen's activities abroad cause or are likely to cause serious damage to the national security or foreign policy of the United States?
Opinions:
Majority - Chief Justice Burger
Yes. The Passport Act of 1926 grants the Executive broad discretion to make rules regarding passports, and this authority implicitly includes the power to revoke a passport for conduct abroad that seriously damages national security or foreign policy. Although the Act does not expressly grant revocation power, there is a longstanding and consistent administrative policy of denying or revoking passports for national security reasons, which Congress has implicitly approved through its inaction and subsequent legislation in the area. This case is distinguishable from Kent v. Dulles, which concerned the denial of passports based on political beliefs; Agee's passport was revoked due to his conduct. The revocation does not violate Agee's constitutional rights, as the freedom of international travel is subordinate to compelling governmental interests in national security, and the restriction is on his harmful actions, not his speech.
Dissenting - Justice Brennan
No. The Passport Act of 1926 does not authorize the Secretary of State to revoke a passport for the reasons stated. The majority misapplies the standard from Kent v. Dulles and Zemel v. Rusk, which require a 'sufficiently substantial and consistent administrative practice' of actual passport denials, not merely a longstanding executive policy or construction. The government has failed to demonstrate such a consistent practice, having cited only a few instances of revocation on these grounds. The Court is improperly relying on the very type of evidence—executive orders and attorney general opinions—that Kent explicitly rejected as insufficient to prove congressional acquiescence. This decision dangerously expands executive power and risks chilling the expression of citizens who disagree with government foreign policy.
Concurring - Justice Blackmun
Yes. While the dissent correctly observes that this decision is not fully reconcilable with the reasoning of Kent v. Dulles and Zemel v. Rusk, the Court has effectively, though sub silentio, cut back on those precedents. This concurring opinion supports that outcome. It would have been preferable for the Court to have been more forthright in disavowing the aspects of prior cases suggesting that a longstanding Executive policy is not probative of congressional authorization. Believing the Court has in effect done so, this opinion concurs in the judgment.
Analysis:
This decision significantly bolsters the executive branch's authority in matters of foreign policy and national security by broadening the basis for passport revocation. It shifts the standard for implied congressional authorization from a strict requirement of consistent practice (actual enforcement), as articulated in Kent, to a more deferential standard accepting a consistent executive policy or construction. This precedent gives the Secretary of State substantial discretion to restrict international travel for citizens whose conduct abroad is deemed a threat, even if that conduct is intertwined with speech. The case thereby establishes that the right to international travel is not absolute and can be curtailed when it conflicts with compelling national security interests.
