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BAUER v. ACHESON

July 9, 1952

BAUER
v.
ACHESON, Secretary of State



The opinion of the court was delivered by: KEECH

This is an action against the Secretary of State for a declaratory judgment under 28 U.S.C.A. § 2201, for review under the Administrative Procedure Act, 5 U.S.C.A. § 1009, and for an injunction against denial of the plaintiff's right to a passport.

 The plaintiff contends that the Passport Act of 1918, as amended, 22 U.S.C.A. §§ 223-225, or that Act as construed and applied by the Secretary of State to authorize him to revoke a passport and deny renewal without a hearing and without notification as to the basis for revocation, is unconstitutional, in that it violates the due process clause of the Fifth Amendment and ex post facto and bill of attainder provisions, art. 1, § 9, of the Constitution. She asks a declaratory judgment that the revocation and refusal to renew her passport without a hearing or advising her of the specific basis for the revocation and refusal to renew, and null and void, and that she is entitled to a passport permitting her to return to the United States, to travel, and to remain abroad; and she further prays that the defendant be enjoined from continuing to deny such passport facilities to her without hearing or advising her of the basis for such denial. It is the position of the defendant that the issuance and revocation of passports are entirely in the realm of foreign affairs, and as such within the absolute discretion of the executive branch of the government, under its inherent power and under 22 U.S.C.A. Sec. § 211a.

 In view of the important constitutional questions raised by the complaint, plaintiff's motion to convene a three-judge court, pursuant to 28 U.S.C. § 2282, was granted. This court, after full hearing and argument by respective counsel, has given careful consideration to the questions presented, and has concluded that the statute and regulations relating to the issuance, use, and revocation of passports are constitutional, in that they are susceptible of an interpretation which provides for due process.

 The pertinent provision of law is 22 U.S.C.A. § 211a, which 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, * * * .'

 Pursuant to this section the President issued Executive Order 7856, which includes the following regulations:

 ' § 51.75. Refusal to issue passport. The Secretary of State is authorized in his discretion to refuse to issue a passport, to restrict a passport for use only in certain countries, to restrict it against use 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.

 ' § 51.76. Violation of passport restrictions. Should a person to whom a passport has been issued knowingly use or attempt to use it in violation of the conditions or restrictions contained therein or of the provisions of the rules in this part, the protection of the United States may be withdrawn from him while he continues to reside abroad.

 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, *fn1" 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. *fn2" There is, however, the recognized limitations on the ...


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