kent dulles argued april decided june time act congress required passport foreign travel citizens state national emergency declared president proclamation necessary make act effective made secretary state denied passports petitioners alleged communistic beliefs associations refusal file affidavits concerning present past membership communist party held secretary authorized deny passports reasons act july immigration nationality act pp right travel part liberty citizen deprived without due process law fifth amendment pp broad power secretary issue passports long considered discretionary construed generally authorize refusal passport applicant citizen person owing allegiance engaging criminal unlawful conduct pp hesitates impute congress made passport necessary foreign travel left issuance discretion secretary state purpose give unbridled discretion withhold passport citizen substantive reason may choose question concerning exercise war power involved case citizen liberty travel regulated must pursuant functions congress delegation power must subject adequate standards delegated authority narrowly construed act july immigration nationality act delegate secretary authority withhold passports citizens beliefs associations act congress purporting raise grave constitutional questions pp act congress expressly curtailing movement communists across borders internal security act yet become effective communist party registered act effect final order board requiring leonard boudin argued cause petitioners brief victor rabinowitz david rein daniel marshall also brief briehl petitioner solicitor general rankin argued cause respondent brief assistant attorney general doub samuel slade jenkins middleton osmond fraenkel william butler filed brief american civil liberties union amicus curiae justice douglas delivered opinion case concerns two applications passports denied secretary state one rockwell kent desired visit england attend meeting organization known world council peace helsinki finland director passport office informed kent issuance passport precluded regulations promulgated secretary state two grounds communist consistent prolonged adherence communist party line letter denial specified detail facts conclusions based kent also advised right informal hearing regulations also told whether hearing requested necessary passport issued submit affidavit whether ever communist kent ask hearing filed new passport application listing several european countries desired visit advised hearing still available attorney replied kent took position requirement affidavit concerning communist party membership unlawful reason matter conscience supply one however hearing principal evidence book lord kent agreed accurate refused submit affidavit maintaining matters unrelated question citizenship irrelevant department consideration application department advised consideration application given satisfied requirements regulations thereupon kent sued district declaratory relief district granted summary judgment respondent appeal case kent heard walter briehl psychiatrist briehl applied passport director passport office asked supply affidavit covering membership communist party briehl like kent refused director tentatively disapproved application following grounds case alleged communist specifically alleged member los angeles county communist party member bookshop association louis missouri held communist party meetings contributed articles communist publication social work today sponsor raise funds veterans abraham lincoln brigade calling president petition defend rights communist party members contributed civil rights congress bail fund used raising bail behalf convicted communist leaders new york city member hollywood arts sciences professions council contact los angeles committee protection foreign born contact freedom stage incorporated briehl filed complaint district held case indistinguishable kent dismissed complaint appeals heard two cases en banc affirmed district divided vote app cases writ certiorari first noted function passport performed american law case urtetiqui pet decided law manner regulating issuing passports directing upon evidence may done declaring legal effect understood matter practice evidence citizenship required secretary state issuing passport however entirely discretionary inquiry instituted ascertain fact citizenship proceedings manner bear character judicial inquiry document nature object addressed foreign powers purporting request bearer may pass safely freely considered rather character political document bearer recognized foreign countries american citizen usage law nations received evidence fact prior numerous laws enacted congress regulating passports many decisions rulings regulations executive department concerning thus congress made unlawful official knowingly issue passport alien certifying citizen stat prior termination war made illegal citizen cross frontier enemy territory board vessels enemy waters visit camps within limits without passport first obtained secretary state designated official stat secretary state took similar steps civil war see dept state american passport congress ratified treaty switzerland requiring passports citizens two nations stat finally congress enacted remains today basic passport statute prior time various federal officials state local officials notaries public undertaken issue either certificates citizenship documents nature letters introduction foreign officials requesting treatment according usages international law act august stat congress put end practices provision codified act july part reads secretary state may grant issue passports rules president shall designate prescribe behalf person shall grant issue verify passports true intervals passport required travel mention already made restrictions imposed war civil war like restriction forerunner contained act imposed congress act may stat made unlawful presidential proclamation force citizen leave enter unless bears valid passport see sess statute invoked presidential proclamation august stat continued effect march stat act effective wartime amended invoked emergency stat see sess invoked presidential proclamation november stat emergency continued april proc stat congress extended statutory provisions april stat extension period secretary state issued regulations complained act predecessor large body precedents grew repeat issuance passports discretionary act part secretary state scholars courts chief executive attorneys general said executive construction enough said warrant inference congress adopted see allen grand central aircraft key problem shall see manner secretary discretion exercised bare fact discretion right travel part liberty citizen deprived without due process law fifth amendment much conceded solicitor general law right emerging least early magna carta chafee three human rights constitution et shows deeply engrained history freedom movement freedom movement across frontiers either direction inside frontiers well part heritage travel abroad like travel within country may necessary livelihood may close heart individual choice eats wears reads freedom movement basic scheme values see crandall nevada wall williams fears edwards california nation wrote chafee thrived principle outside areas plainly harmful conduct every american left shape life thinks best pleases go pleases freedom movement also large social values chafee put foreign correspondents lecturers public affairs need information scientists scholars gain greatly consultations colleagues countries students equip fruitful careers instruction foreign universities reasons close core personal life marriage reuniting families spending hours old friends finally travel abroad enables american citizens understand people like live europe helps public issues american crossed ocean obliged form opinions foreign policy merely told officials government correspondents american newspapers moreover views domestic questions enriched seeing foreigners trying solve similar problems many different ways direct contact countries contributes sounder decisions home see vestal freedom movement iowa rev difficulty power secretary state issuance passports expressed broad terms apparently long exercised quite narrowly far material cases refusal passports generally fell two categories first questions pertinent citizenship applicant allegiance resolved secretary command congress passport shall granted issued verified persons owing allegiance whether citizens stat second question whether applicant participating illegal conduct trying escape toils law promoting passport frauds otherwise engaging conduct violate laws see moore digest international law hackworth digest international law hyde international law rev ed grounds refusal asserted relate citizenship allegiance one hand criminal unlawful conduct yet far relevant two ones fairly argued adopted congress light prior administrative practice one find records state department rulings subordinates covering wider range activities two indicated respects communists scattered rulings consistently one pattern say assurance whatever may practice time act july adopted administrative practice far relevant jelled around two categories mentioned therefore hesitate impute congress made passport necessary foreign travel left issuance discretion secretary state purpose give unbridled discretion grant withhold passport citizen substantive reason may choose restrictive regulations applied war measures compelled equate present problem statutory construction problems may arise war power cf youngstown sheet tube sawyer case comparable magnitude korematsu allowed government time war exclude citizens homes restrict freedom movement showing gravest imminent danger public safety congress chief executive moved coordinated action said nation war condition presently exists showing extremity showing joint action chief executive congress curtail constitutional right citizen made since start exercise american citizen activity included constitutional protection readily infer congress gave secretary state unbridled discretion grant withhold dealing political questions entrusted chief executive constitution different case involved part course issuance passport carries implication intention extend bearer diplomatic protection though request may concern permit safely freely pass case need give lawful aid protection citizen function passport subordinate crucial function today control exit seen right exit personal right included within word liberty used fifth amendment liberty regulated must pursuant functions congress youngstown sheet tube sawyer supra power delegated standards must adequate pass scrutiny accepted tests see panama refining ryan cf cantwell connecticut niemotko maryland activities enjoyment natural often necessary american citizen travel involved construe narrowly delegated powers curtail dilute see ex parte endo cf hannegan esquire rumely hesitate find broad generalized power authority trench heavily rights citizen thus reach question constitutionality conclude delegate secretary kind authority exercised deal beliefs associations ideological matters must remember dealing citizens neither accused crimes found guilty denied freedom movement solely refusal subjected inquiry beliefs associations seek escape law violate may may communists assuming law congress passed expressly curtailing movement communists across borders yet become effective therefore strange infer pending effectiveness law secretary silently granted congress larger pervasive power curtail discretion free movement citizens order satisfy beliefs associations repeat deal constitutional right citizen right must assume congress faithful respect faced important constitutional questions hold congress given secretary authority withhold passports citizens beliefs associations congress made provision explicit terms absent one secretary may employ standard restrict citizens right free movement reversed footnotes section regulations provides stage proceedings passport division board deemed necessary applicant may required part application subscribe oath affirmation statement respect present past membership communist party applicant communist refusal passport case without proceedings sections act september known internal security act stat provide shall unlawful communist organization registered act effect final order board requiring organization register member knowledge registry order apply passport official issue one conditions precedent yet materialized section provides relevant part war existence national emergency proclaimed president president shall find interests require restrictions prohibitions addition provided otherwise section imposed upon departure persons entry shall make public proclamation thereof shall otherwise ordered president congress unlawful alien depart enter attempt depart enter except reasonable rules regulations orders subject limitations exceptions president may prescribe person knowingly make false statement application permission depart enter intent induce secure granting permission either another proclamation provided subsection made published proclamation force shall except otherwise provided president subject limitations exceptions president may authorize prescribe unlawful citizen depart enter attempt depart enter unless bears valid passport proc stat see op atty dept reg effective august fed reg see hyde international law rev ed hackworth digest international law see perkins elg exec order june apr june mar fed reg cfr present provision last listed reads part follows secretary state authorized discretion refuse issue passport restrict passport use certain countries restrict use certain countries withdraw cancel passport already issued withdraw passport purpose restricting validity use certain countries department however feel secretary state exercise discretion willfully without cause acting secretary wilson wrote april issuance passports discretionary act part secretary state may reasons deemed sufficient direct refusal passport american citizen passport refused american citizen even character doubtful unless reason believe put passports improper unlawful use foreign relations pt ii see moore digest international law freund administrative powers persons property practice clear department state acts upon theory must grant passport unless circumstance making duty refuse attitude indeed intolerable mean executive power political character individuals quite harmony traditional american legislative practice op atty op atty article reads follows shall lawful person future go kingdom return safely securely land water saving allegiance us unless time war short space common good kingdom excepting prisoners outlaws according laws land people nation war us merchants shall treated said see jaffe op cit supra sibley passport system soc comp leg blackstone commentaries use foreign travel promote educational interests reviewed francis colligan dept state bull see note supra justice clark justice burton justice harlan justice whittaker concur dissenting august acting authority vested executive order cfr secretary state issued regulations question provides passport applicant may required make statement oath respect present past membership communist party cfr since congress required every passport application contain true recital every matter fact may required rules secretary state requirement must satisfied efore passport issued person stat context background secretary asked petitioners refused file affidavits stating whether ever members communist party thereupon secretary refused consider petitioners applications time filed required affidavits secretary action clearly must held authorized congress requested information relevant ground upon secretary might properly refuse issue passport purports today preclude existence ground holding secretary authorized deny passport communist whose travel abroad inimical national security thus construing authority secretary recognizes history discretion grant withhold passports power first exercised without benefit statute made subject specific legislative authority congress consolidated power passports hands secretary stat statutory language shall authorized grant issue changed may grant issue slightly modified form secretary power come several part embodiment part discretionary authority previously acknowledged perkins elg exercised times peace periods war war periods national emergency however importance secretary passport power tremendously magnified succession statutes making possession passport legal necessity leaving entering country first enacted prior end war made illegal citizen cross frontier enemy territory without passport stat result accomplished civil war without congressional sanction moore digest international law world war prompted passage second statute stat statute directly antecedent presently controlling legislation provided time war upon public proclamation president public safety required additional travel restrictions citizen depart enter country without passport shortly thereafter president wilson made required proclamation public necessity provided citizen granted passport unless affirmatively appeared departure entry prejudicial interests proc stat legislative history act sharply indicates congress meant secretary deny passports whose travel abroad contrary national security act came floor house representatives accompanied following explanation report house committee foreign affairs sess supervision travel american citizens essential appeared statements made committee hearing upon bill one case mentioned citizen recently returned europe knowledge government done work neutral country german government strong suspicion came proper purpose nevertheless impossible exclude impossible prevent leaving country saw fit known facts case sufficient warrant institution criminal prosecution event difficulty securing legal evidence place activities europe may easily imagined essential meet situation executive wide discretion wide authority action one foresee different means may adopted hostile nations secure military information spread propaganda discontent obviously impracticable appeal congress legislation new emergency swift executive action effective counterstroke committee informed representatives executive departments need prompt legislation character suggested pressing recently numerous suspicious departures cuba impossible prevent individual cases entry departure various points excited greatest anxiety particularly true respect mexican border passage across legally restricted many types persons reasonably suspected aiding germany purposes government much hampered lack authority control travel country even people suspected loyal even suspect employ enemy governments cong rec ports open far law concerned alien friends citizens neutrals come go pleasure notwithstanding government may suspect conduct intention individuals come go id chief object bill correct serious trouble department state department justice department labor aliens alien enemies renegade american citizens sorry say entering nests cuba mexican border enter depart without power departments government intercept delay law covers case believed information goes germany war preparations transportation troops france passes mexico government great deal trouble along border everyday occurrence emergency measure great bill supplementary espionage laws necessary efficient execution detecting punishing german spies cong rec secretary understood exercised passport power period evident two state department documents memorandum secretary state dated november declared assistance way passport facilities government may render person working either directly indirectly behalf soviet government help soviet government memorandum applicants passports bolshevists connected bolshevist government code accordingly recommended passports refused person counsels advocates publicly privately overthrow organized governments force id among examples stated embers communist party id two weeks later state department published office instructions dated december embassies throughout world implementing code prohibiting issuance passports anarchists revolutionary radicals expressly included among proscribed classes citizens believe advocate overthrow force violence government well members affiliated organization believes advocates overthrow terms war statute act expired march see stat travel controls existed year congress amended act provide controls national emergency proclaimed president may president find publicly proclaim interest required restrictions reimposed stat shortly thereafter president roosevelt invoked authority stat implementing regulations issued state department cfr legislative history amendment clear act purpose legislation use passport power secretary block travel country persons whose passage best interests security report senate committee judiciary sess declared since outbreak present war come attention department state executive departments many persons outside directly engaged espionage subversive activities interests foreign governments others engaged activities inimical best interests desire travel time time foreign countries connection activities national emergency amendment related officially declared end april proc stat congress continued provisions act effect april stat interim period congress passed immigration nationality act repealed act amended stat act amending extent provisions subject invocation existence national emergency proclaimed president stat practically legislative history incorporation statute act apart comment house report provisions incorporated bill practically form appear act may sess reason legislative history act amendment set detail doubly important ascertaining intent congress authority secretary deny passports act cf plesha time act national emergency proclaimed president truman december response korean conflict still today existence proc stat reliance president invoked travel restrictions january proc stat proclamation done carefully pointed none provisions interpreted revoking regulation heretofore issued relating departure persons entry id among regulations theretofore issued attacked relating issuance passports communists promulgated effective august shortly passage act fed reg congress virtue act approved whatever use discretion secretary made prior june date legislation conclusion necessarily follows fact continued make legal exit entry turn possession passport without way limiting discretionary passport power theretofore exercised secretary see allen grand central aircraft cerecedo hermanos compania determines secretary denial passports peacetime extended two categories cases involving allegiance involving criminal activity secretary wartime exercise discretion admittedly restrictive relevance practice congress said approved since present denials involve grounds either allegiance criminal activity concludes beyond pale congressional authorization propositions set vital final conclusion neither validity first contrary fact second common sense peacetime practice state department indisputably involved denial passports reasons national security report commission government security summarizes department policy granting passports communists excerpts state department documents shortly russian revolution department became aware scope danger worldwide revolutionary movement attendant purpose overthrow existing governments including thereafter passports refused american communists desired go abroad indoctrination instruction etc policy continued emphasis added world war ii persons refused passports communists world war ii first passports refused upon reconsideration matter decision made passports issued communists supporters communism satisfied department intend abroad engage promotion communist activities time however decided passports refused persons whose purpose traveling abroad believed subvert interest later policy changed give communist journalists passports even though actively promoting communist cause nearly two years later september latter leniency reversed pointed internal security act clearly showed desire congress communists issued passports government matter referred department legal adviser agreed duty state department refuse passports communists including journalists evidence peacetime denials security reasons scattered nevertheless existent much centers around opposition internal security act one stated aims legislation denial passports communists minority report senate committee judiciary objected done existing discretionary powers secretary state evidenced recent denial cancellation passport paul robeson part sess president truman vetoing act stated claimed bill deny passports communists fact government deny passports communists existing law cong rec attorney general hoar advised secretary state good reason existed passport power discretionary nature might sometimes inexpedient public interests country grant passport citizen op atty example referred case avowed anarchist person seek passport public interests might require application denied ibid see also op atty orders promulgated passport office periodically required denial passports political adventurers revolutionary radicals latter phrase defined include wish go abroad take part political military affairs foreign countries ways contrary policy inimical welfare see shortly end world war passport office instructions may passport office instructions july foreign service regulations july even serious error determination secretary wartime use discretion wholly irrelevant determining discretionary practices approved congress enactment wholly realistic sense peace today peace times state national emergency declared president wherein stated world conquest communist imperialism goal forces aggression loosed upon world increasing menace forces communist aggression requires national defense strengthened speedily possible full effect proc stat case judging may done peace done war professor jaffe aptly exposed fallacy upon majority proceeds criterion defense country external enemies asserted precedents war relevance peace critical consideration defense external enemy communication abroad citizens enemy nature controlled usual criminal process facts particular case citizen intention inevitably speculative done bird flown congress administration concluded communist international foreign domestic enemy deal domestic aspect criminal process seem justified dealing external aspect exit control avowed communist going abroad may assumed take counsel fellows arrange steady dependable flow cash information bit promote purposes conspiracy jaffe right travel passport problem foreign affairs indeed rather irrelevant wartime practice may relevant one discretion concerned discretionary control international travel yet times war national emergency passport required leave enter country hence times passport power necessarily meant power control travel finally distinguishing away secretary passport denials wartime majority makes attempt distinguish secretary practice periods official state war nevertheless presidential proclamation national emergency effect situation prevailed since end world war ii throughout time pointed secretary refused passports whose purpose traveling abroad believed subvert interest report commission government security supra numerous specific instances passport denials security grounds years reported february law review article nearly half year prior passage note passport refusals political reasons yale multiple basis constrained disagree majority authority secretary deny petitioners applications passports majority resolution authority question prevents reaching constitutional issues raised petitioners relating claimed unlawful delegation legislative power violation free speech association first amendment violation international travel fifth amendment view inappropriate dissenter consider questions time cf peters hobby accordingly affirm issue secretary authority require affidavits involved case without reaching constitutional questions seriously disputed majority however reference made reluctance interpret broadly practice secretary approved congress act denial passports security grounds jelled time act overlooks congressional intent statute statute look abundant evidence set opinion security denials well comprehensive story communism america indicating necessity passport control see hoover masters deceit effect see statement senator kilgore senate debate act cong rec amendment offered act house cong rec senate cong rec peacetime exercise passport power may still relevant another point view namely countries hinge entry possession passport right international travel citizen secure passport thereby curtailed though get country get another