' § 51.77. Secretary of State authorized to make passport regulations. The Secretary of State is authorized to make regulations on the subject of issuing, renewing, extending, amending, restricting, or withdrawing passports additional to the rules in this part and not inconsistent therewith.'
Section 224 of 22 U.S.C.A. makes it unlawful when the United States is at war or during the existence of the national emergency proclaimed by the President on May 27, 1941, for any citizen of the United States to depart from or enter or attempt to depart from or enter the United States unless he bears a valid passport, and 22 U.S.C.A. § 225 prescribes a criminal penalty for violation of § 224. These sections have been continued in effect by subsequent legislation despite the President's proclamation of April 28, 1952, terminating the national emergency proclaimed May, 1941.
From the pleadings and argument of counsel, it is clear that plaintiff basically is attacking the constitutionality of § 211a. Collaterally, plaintiff refers to the other sections. Hence, if there be a substantial constitutional question, as we hold there is, the action is a proper one for determination by a three-judge court under 28 U.S.C.A. § 2282.
It is clear that the authority to issue passports necessarily implies authority also to regulate their use and to withdraw them. The particular questions for inquiry in this case are whether a person who has received a passport may have it summarily revoked, during the period for which it was valid, without prior notice or opportunity for a hearing and on the bald statement that 'her activities are contrary to the best interests of the United States,' and whether the Secretary of State may refuse to renew such passport on the same statement.
It is the contention of the defendant that a passport is a purely political document addressed to foreign powers,
and that since a passport is in the realm of foreign affairs its issuance or denial is a political matter, entirely in the discretion of the Secretary of State and not subject to judicial review. It is true that the conduct of foreign affairs is a political matter within the discretion of the executive and legislative branches of the government, and that the courts recognized the plenary power of the President and of the Congress, singly or in combination, to perform acts peculiarly within the realm of political affairs without judicial interference.
There is, however, the recognized limitations on the power of the political departments of the government that their acts must be within the Constitution and not in conflict with any provision thereof.
The plaintiff contends that the denial of a passport to her is in violation of the bill of attainder and ex post facto provisions of the Constitution.
'A bill of attainder is a legislative act which inflicts punishment without a judicial trial.'
Ex post facto laws are classified in Calder v. Bull, 3 Dall. 386, 390, 3 U.S. 386, 390, 1 L. Ed. 648, as:
'1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.
'2nd. Every law that aggravates a crime or makes it greater than it was when committed.
'3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.
'4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.' This definition has been repeatedly approved.
Neither the statute nor the regulation here involved is on its face and bill of attainder or an ex post facto law. It is true that these constitutional prohibitions are not limited to punishment by criminal penalty. A bill of attainder includes any legislative act which takes away the life, liberty, or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment;
and an ex post facto law is a statute which "in its relation to the offense, or its consequences, alters the situation of the accused to his disadvantage."
But a statute which makes the right to engage in some activity in the future depend upon past behavior, even behavior before the passage of the regulatory act, is not invalid as a bill of attainder or ex post facto law if the statute is a bona fide regulation of an activity which the legislature has power to regulate and the past conduct indicates unfitness. participate in the activity.
It is possible that by arbitrary administration the statute and regulation here attacked might be made to partake of the nature of a bill of attainder or ex post facto law, but such application is not inherent. Since they are susceptible of a constitutional interpretation, the court must construe the statute and regulations as constitutional.
The plaintiff's contention that § 211a is in violation of her rights under the due process clause of the Fifth Amendment of the Constitution raises a more serious problem.
The Fifth Amendment provides, 'no person shall be * * * deprived of life, liberty, or property, without due process of law * * *.' The Supreme Court has recognized that personal liberty includes 'the right of locomotion, the right to remove from one place to another according to inclination,'
stating, 'The liberty, of which the deprivation without due process of law is forbidden, 'means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation * * * ."
While the Supreme Court was there considering freedom to move from state to state within the United States, it is difficult to see where, in principle, freedom to travel outside the United States is any less an attribute of personal liberty.
Especially is this true today, when modern transportation has made all the world easily accessible and when the executive and legislative departments of our government have encouraged a welding together of nations and free intercourse of our citizens with those of other friendly countries. Personal liberty to go abroad is particularly important to an individual whose livelihood is dependent upon the right to travel, as is claimed by the plaintiff in this case.
Aside from the provisions of §§ 224 and 224, it is unrealistic to contend that denial of an American passport does not restrict the plaintiff's right to travel abroad. Legal rights may be violated by unlawful public action although such action makes no direct demands on the individual.
Passports are required in many countries, and as long ago as 1929 the State Department advised American citizens leaving the United States for a country where passports are not required to carry a passport, except in travel to Canada or Mexico, and for use to facilitate reentry into the United States.
Since denial of an American passport has a very direct bearing on the applicant's personal liberty to travel outside the United States, the executive department's discretion, although in a political matter, must be exercised with regard to the constitutional rights of the citizens, who are the ultimate source of all governmental authority.
The liberty guaranteed by the Constitution is not absolute. 'Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.'
Thus, freedom to travel abroad, like other rights, is subject to reasonable regulation and control in the interest of the public welfare. However, the Constitution requires due process and equal protection of the laws in the exercise of that control.
'Due process of law has never been a term of fixed and invariable content.'
Due process does not require a judicial hearing,
but merely a procedure in which the elements of fair play are accorded. Essential elements of due process are notice and an opportunity to be heard before the reaching of a judgment,
but the particular procedure to be adopted may vary as appropriate to the disposition of issue affecting interests widely varying in kind.
The court recognizes that in the matter of passports the executive department of the government, acting through the Secretary of State, must necessarily be accorded wide discretion in determining when and where the protection of the United States may be extended to an American citizen travelling abroad, and that it should also have discretion to deny such protection to persons whose activities abroad might be in conflict with its foreign policy. This court does not suggest that the Secretary of State is without authority to establish reasonable classifications of persons whose passports shall be revoked or not renewed. The question raised in this case is whether the inherent power of the executive department or Sec. 211a confers upon the Secretary of State absolute discretion in the matter of passports, without regard to the principles of due process and equal protection of the law, and whether or not his discretion be exercised arbitrarily.
This court is not willing to subscribe to the view that the executive power includes an absolute discretion which may encroach on the individual's constitutional rights, or that the Congress has power to confer such absolute discretion. We hold that, like other curtailments of personal liberty for the public good, the regulation of passports must be administered, not arbitrarily or capriciously, but fairly, applying the law equally to all citizens without discrimination, and with due process adapted to the exigencies of the situation. We hold further that such administration is possible under the existing statute and regulations.
Since the Act in question is susceptible of an interpretation which would permit due process, it follows that it is not in violation of the Fifth Amendment. The President's regulation authorizing withdrawal of passports is clearly within the intent of the Congress, and is susceptible of and must be construed as exacting notice and opportunity to be heard prior to any judgment effecting revocation or refusal to renew a passport.
The third member of this court is of the view that the complaint is to be analyzed as an attack merely on the action of the Secretary of State and, as such, it involves no substantial question as to the constitutionality of the statute.
We take the view that a substantial and serious constitutional question has been raised,
which necessitated the convening of a three-judge court, in that the statute is susceptible of the interpretation followed by the Secretary of State, and as so interpreted and applied it would be unconstitutional. While there have been previous pronouncements by the Supreme Court reading into statutes due process provisions under certain circumstances, the statutes there involved were not so clearly analogous to the one here in question as to remove the substantial character of the constitutional question. The mere fact that in the opinion of the three judges who heard the case, the statute may be interpreted so as to provide due process, does not change the fact that there is a substantial constitutional question, and does not ipso facto require a remand to one district judge for the final determination of the issues.
Since there is a substantial constitutional question, there is no doubt of the propriety of action by the three-judge court as to all questions involved in the litigation necessary for disposition of the prayer for injunction.
We find that this is a proper case for a final determination of the issues, since it requires no further encroachment on the time of the three-judge court for additional hearing, and remand to a single district judge would merely result in duplication.
We conclude that revocation of the plaintiff's passport without notice and hearing before revocation, as well as refusal to renew such passport without an opportunity to be heard, was without authority of law. It follows that the Secretary of State should be directed to renew or revalidate the plaintiff's passport without the amendment making it valid only for return to the United States, unless a hearing is accorded her within a reasonable time.
Counsel will present promptly an appropriate order.
CURRAN, J., concurs.