Zemel v. Rusk
381 U.S. 1 (1965)
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Rule of Law:
The Passport Act of 1926 grants the Executive the authority to refuse to validate citizens' passports for travel to specific geographic areas, and such a refusal, when grounded in foreign policy considerations, is a constitutional restriction on the Fifth Amendment right to travel.
Facts:
- Prior to 1961, no passport was required for travel in the Western Hemisphere.
- On January 3, 1961, the United States severed diplomatic relations with Cuba.
- On January 16, 1961, the State Department declared all U.S. passports invalid for travel to Cuba unless specifically endorsed by the Secretary of State.
- Louis Zemel, a U.S. citizen holding a valid passport, applied to the State Department to have his passport validated for travel to Cuba as a tourist.
- The State Department denied his request.
- Zemel renewed his request on October 30, 1962, stating his purpose was 'to satisfy my curiosity about the state of affairs in Cuba and to make me a better informed citizen.'
- The State Department denied his request again, finding his purpose did not meet the standards for an exception, such as being a newsman or having established business interests.
Procedural Posture:
- Louis Zemel sued the Secretary of State and the Attorney General in the United States District Court for the District of Connecticut.
- Zemel sought a declaratory judgment that the travel restrictions were invalid and an injunction to compel the validation of his passport.
- On Zemel's motion, a three-judge district court was convened.
- The parties filed cross-motions for summary judgment.
- The three-judge district court, in a divided vote, granted the Secretary of State’s motion for summary judgment and dismissed the action.
- Zemel then filed a direct appeal to the Supreme Court of the United States.
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Issue:
Is the Secretary of State's refusal to validate a citizen's passport for travel to Cuba, based on foreign policy concerns, a constitutionally permissible exercise of authority granted by the Passport Act of 1926?
Opinions:
Majority - Mr. Chief Justice Warren
Yes. The Secretary of State's refusal to validate a citizen's passport for travel to Cuba is a constitutionally permissible exercise of authority implicitly granted by Congress in the Passport Act of 1926. The Act's broad language, interpreted in light of a long-standing administrative practice of imposing area restrictions, indicates congressional approval of this authority. This restriction does not violate the Fifth Amendment because the right to travel is not absolute and can be curtailed for significant foreign policy and national security reasons. Unlike the passport denials in Kent v. Dulles, which were based on an individual's personal characteristics and beliefs, this restriction is a general foreign policy measure that applies to all citizens. The restriction is also not a violation of the First Amendment, as the right to speak and publish does not entail an unrestrained right to gather information.
Dissenting - Mr. Justice Black
No. The Secretary's refusal is based on an unconstitutional delegation of legislative power from Congress to the Executive. The Passport Act of 1926 provides no standards and grants the President and Secretary unlimited discretion, which amounts to Congress farming out its exclusive constitutional power to make laws. This is 'delegation running riot.' Citizens have a constitutional right to have laws restricting their liberty enacted by their elected representatives in Congress, not by executive officials.
Dissenting - Mr. Justice Douglas
No. The refusal is based on an overly broad restriction that impermissibly infringes on freedoms peripheral to the First Amendment without being narrowly tailored to a specific danger. The right to travel is essential for citizens to know, observe, and understand the world, which is vital to freedom of expression. A wholesale ban on travel to Cuba simply because it has a Communist regime is not a narrowly drawn restriction to meet a precise evil, as required when fundamental liberties are at stake. This allows an official to restrict travel based on political objectives, which is contrary to the spirit of the First Amendment.
Dissenting - Mr. Justice Goldberg
No. The Passport Act of 1926 did not grant the Executive the authority to impose area-based travel restrictions; its purpose was merely to centralize the issuance of passports. The legislative history of the original 1856 Act shows it was designed solely to stop the chaotic issuance of passports by various local officials and notaries. The minimal pre-1926 administrative practice of imposing area restrictions was almost exclusively tied to wartime conditions and is insufficient to infer a congressional grant of power for peacetime restrictions. The Executive has no inherent authority to impose such restrictions, and Congress has not explicitly granted it.
Analysis:
This decision establishes a critical distinction in the law of passport regulation and the right to travel. It differentiates between denying passports based on an individual's beliefs or associations, which is constitutionally suspect under Kent v. Dulles, and imposing general, area-wide restrictions based on foreign policy, which is permissible. The ruling grants significant deference to the Executive in matters of foreign affairs, allowing travel bans to be used as a tool of national security and international policy. This creates a framework where restrictions on where a citizen can travel are subject to less scrutiny than restrictions on who can travel.
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