The opinion of the court was delivered by: FLANNERY
The plaintiffs herein seek on their own behalf and on behalf of all United States citizens who will apply or have applied for a United States passport and who will be or have been required to swear to or affirm the contents of an Oath of Allegiance as a prerequisite to the issuance of a passport, (1) a declaratory judgment that the required Oath of Allegiance is unauthorized by and contrary to law, and the United States Constitution and (2) injunctive and other appropriate relief preventing the defendants, the Secretary of State and the Director of the Passport Office of the Department of State, from conditioning the issuance of a passport upon the swearing or affirming of the contents of such an Oath of Allegiance.
For the reasons hereinafter stated the Court finds the requirement that the aforesaid Oath of Allegiance or its substantial equivalent be executed as a prerequisite to the issuance of a United States passport to be unlawful and violative of rights guaranteed by the Due Process Clause of the Fifth Amendment to the Constitution of the United States.
Late in 1971, plaintiff Allan Fletcher mailed an executed application form to the Passport Office of the United States Department of State. Fletcher refused to swear to or affirm the Oath of Allegiance required by the Secretary of State as a prerequisite to the issuance of a United States passport and, consequently, the Secretary refused to issue a passport to him.
Further. I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I take this obligation freely, without any mental reservations, or purpose of evasion: So help me God.
It is plain and uncontested that this Court has jurisdiction over this action arising under the First and Fifth Amendments to the United States Constitution and Section 213 of Title 22 of the United States Code. It involves a substantial challenge based on fundamental constitutionally guaranteed rights, and the amount in controversy exceeds the requisite jurisdictional sum.
Whether A Three-Judge Court Is Required
In the instant litigation, plaintiffs have not alleged that an Act of Congress is unconstitutional nor have they sought to enjoin a statute's enforcement. Plaintiffs' success in this action would have no effect upon the statutory framework underpinning the operations of the Passport Office. The plaintiffs' attack is on the administrative action requiring the Oath, but not on the statute.
Merely finding that the instant complaint challenges administrative action rather than the statutory provision does not end this Court's inquiry.
Acts of Congress are almost never self-enforcing. They require administrative or executive action to implement their provisions. Nevertheless, different Acts of Congress require differing degrees of administrative initiative to carry out the Congressional purpose. Perfunctory administrative or executive action is all that is necessary to implement direct and specific legislative commands. More general legislation permits administrators to use their own judgment and initiative to formulate agency policy in areas never specifically addressed by Congress.
When a complaint seeks to enjoin on constitutional grounds administrative action which is merely a perfunctory execution of a specific legislative directive, that complaint actually mounts a challenge to the legislative directive. This challenge requires the convening of a three-judge court pursuant to 28 U.S.C. § 2282. However, when the complaint attacks administrative action which is permitted but not required by broad legislative policy and which resulted from the exercise of administrative judgment and initiative, that complaint attacks the administrative action itself. This attack does not require that a three-judge court be convened.
Whether This Is A Proper Class Action
Five individual plaintiffs are before this Court. Plaintiffs Woodward and Fletcher have applied for passports and the defendants have rejected their applications solely as a result of their failure to execute the Oath of Allegiance. As to these two plaintiffs, all parties agree that the rejection of their applications on this ground presents the Court with a justiciable controvery. The remaining individual plaintiffs, Hoffman, Meuer and Waggoner, have not yet applied for passports, but have affirmed their intention to so apply and to refuse to execute the required Oath. As to these plaintiffs, the defendants contend that the mere expression of a desire to apply for a passport is insufficient to create a justiciable issue as to the constitutionality of the Oath of Allegiance, there being no case or controversy ripe for adjudication. In response, the plaintiffs note that the defendants have stated unequivocally that execution of the Oath is a prerequisite to issuance of a passport, and that plaintiffs raise "narrow and clearly defined" legal questions of the "authority for and constitutionality on its face of a simple and specific policy," which legal issues will not be improved by a "delay in adjudication." National Student Association v. Hershey, 134 U.S. App. D.C. 56, 72, 412 F.2d 1103, 1119 (1969).
In view of its subsequent decision that this action is properly brought as a class action, however, the Court need not reach the issue of whether there is currently a justiciable controversy with respect to those of the named plaintiffs who have not yet formally applied for passports. Since, as the Court discusses below, this is a proper class action, and plaintiffs Woodward and Fletcher are properly before the Court and are adequate representatives of the class of United States citizens who have been or will be effected by the passport Oath requirement, the Court would proceed to the issues raised on behalf of the class even if defendants provided the named plaintiffs the relief sought and thus rendered the case moot as to them. See Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968); Torres v. New York State Department of Labor, 318 F. Supp. 1313 (S.D.N.Y. 1970).
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 ...