as a class action, and now turns to the merits of this dispute.
HISTORY OF THE PASSPORT OATH REQUIREMENT
From 1861 to 1966, the Department of State required execution of an Oath of Allegiance as a prerequisite to the issuance of a passport. In the version of the Passport Regulations in effect until 1966, each citizen's application for a passport was required to contain "[the] applicant's oath or affirmation of allegiance to the United States."
However, it was not until 1952,
that the possession of a valid passport, though always a great convenience in foreign travel, was generally made a legal requirement for leaving or entering the United States.
That legal requirement prevails today, except for travel to certain designated countries.
In 1966, the Department of State voluntarily eliminated the requirement that an applicant swear to or affirm the contents of the Oath. In an Airgram sent to all United States diplomatic and consular posts on December 27, 1966, over the signature of then Secretary of State Rusk, as well as in instructions dispatched to all passport agents by Defendant Knight on March 24, 1969, it was stated: "The Department has no legal authority to deny a passport to a U.S. citizen who refuses to take the Oath of Allegiance." Therefore, while the Oath still was included in the passport application form, the post-1966 regulations permitted it to be deleted at the option of the passport applicant.
This optional Oath regimen prevailed from 1966 to July 28, 1971, when Judge Green of this Court ruled in Cohen et al. v. Rogers et al., Civil Action No. 3021-70, that "the inclusion of an optional Oath of Allegiance on the standard application form for a United States passport unfairly discriminates among United States citizens . . ." The Court logically went on to rule that since the optional Oath was unlawful, the defendants would have to either delete the Oath requirement entirely or require the Oath of all applicants for a United States passport.
On November 1, 1971, the defendants issued instructions to their employees that henceforth the Oath would be a mandatory requirement for the issuance of a United States passport, but that various alternative Oaths were permissible.
It is this decision by the defendants that is under attack by the plaintiffs herein.
The current provisions with respect to the issuance of passports are grouped in 22 U.S.C. §§ 211a, 212 and 213. It is the position of the Secretary of State that these statutory sections, when read collectively, grant authority for the defendants' actions, but that even if no explicit authority can be found in these statutes, congressional silence has ratified the Secretary's practice of requiring subscription to an Oath of Allegiance as a pre-condition to the receipt of a United States passport.
In weighing these contentions, this Court is mindful of the caveat issued by the United States Court of Appeals for the District of Columbia Circuit that where a citizen's Fifth Amendment right to travel is at issue, as it is here,
"statutory limitations [of this right] will be strictly construed." Lynd v. Rusk, 128 U.S. App. D.C. 399, 404, 389 F.2d 940, 945 (1967). "Where activities of enjoyment, natural and often necessary to the well-being of an American citizen, such as travel, are involved, we will construe narrowly all delegated powers that curtail or dilute them." Kent v. Dulles, 357 U.S. 116, 129, 78 S. Ct. 1113, 1120, 2 L. Ed. 2d 1204 (1958).
Section 213 of Title 22 of the United States Court provides the statutory authority for the Department of State to condition the granting of passports upon submission of a proper application form. It is the only statutory provision which explicitly regulates the application itself, and thus would be the natural repository of statutory authority for the defendants' denial of a passport to an applicant solely on the basis of the application. Section 213 states in pertinent part that an applicant
"shall subscribe to and submit a written application . . . [which] shall contain a true recital of each and every matter of fact which may be required by law or by any rules authorized by law to be stated as a prerequisite to the issuance of any such passport." (Emphasis added.)
Under no reasonable reading can this section, standing alone, be construed as authorizing inclusion of the Oath of Allegiance on the passport application form. It permits inclusion only of a recital of a "matter of fact which may be required by law or by any rules authorized by law." The Oath of Allegiance is clearly not a matter of "fact", and the defendants' apparently concede as much.
Even if the Oath was deemed to concern matters of "fact", it still would not be authorized by Section 213 since the Oath is not a matter "required by law or by any rules authorized by law . . ." While it is true that prior to October, 1966, federal regulations and rules did make the Oath a prerequisite to the receipt of a United States passport,
that requirement was eliminated in October of 1966 when the State Department issued new regulations governing the application process. These new regulations make no mention of an Oath of Allegiance. To date, defendants have issued no rules or regulations reimposing the Oath requirement.
Consequently, this Oath may not be deemed a matter "required by law or by any rules authorized by law . . ." under Section 213.
Similarly, no authorization for the defendants' actions can be found in 22 U.S.C. § 211a. That section provides:
"The Secretary of State may grant and issue passports . . . under such rules as the President shall designate and prescribe . . . and no other person shall grant, issue or verify such passports."