the passport of a single individual. See Zemel v. Rusk, supra, 381 U.S. at 13, 85 S. Ct. 1271.
The Secretary can demonstrate that he has been given statutory authority in one of two ways. He must establish either that he acts pursuant to an explicit delegation or that he has followed "sufficiently substantial and consistent" administrative practice to warrant the implied approval of Congress. Zemel v. Rusk, supra, 381 U.S. at 12, 85 S. Ct. 1271. He attempts here, unsuccessfully, to meet both tests.
When the Secretary issued the challenged regulation in 1968, he relied on the Act. It is undisputed that this code provision does not expressly authorize the Secretary to deny or revoke a passport on national security grounds. No subsequent legislation relating to passports has expressly delegated such authority. Indeed, in 1958 during the administration of President Eisenhower the Department sought this precise authority and it was not granted by the Congress.
The issue, therefore, is whether or not implied approval can be established. The Secretary urges that a long-standing historical practice involving passport denials based on national security and foreign policy interests exists, and that this historical practice, unquestioned by Congress, confirms the validity of the regulation. The Secretary adds that when Congress amended the Act in 1978
it assented sub silentio to the validity of the 1968 regulation.
Only on one prior occasion has a passport been revoked pursuant to 22 C.F.R. § 51.70(b)(4). This solitary invocation over a 12-year period does not approach the level of substantial and consistent administrative practice. Indeed, until now the regulation has been virtually unused.
Defendant's main evidence for recognized prior practice is a series of statutes, regulations, and advisory opinions dating back to 1861. Some of these materials assert executive authority to refuse passports to persons participating in criminal conduct. Others affirm the President's power to restrict or condition passport issuance in order to protect the interests of the nation during times of war or formally declared national emergency. See, e.g., Pub.L. No. 65-154, 40 Stat. 559 (1918); Pub.L. No. 77-114, 55 Stat. 252 (1941). These powers were understood to be delegated to meet exigent circumstances for a limited purpose. See, e.g., H.R.Rep. No. 485, 65th Cong., 2d Sess. 2 (1918). The congressional actions taken are not, however, persuasive on the issue of implicit authorization to invoke national security or foreign policy considerations in peacetime when no national emergency has been declared and no criminal conduct charged. While the Supreme Court in Zemel examined wartime as well as peacetime precedents, there was ample evidence of area travel restrictions being imposed under peacetime conditions. Comparable indications have not been produced regarding the imposition of passport controls to protect national security. Defendant's exclusive reliance on measures enacted or promulgated to address wartime or emergency conditions is inapposite.
At oral argument the Secretary pointed to State Department testimony during a series of congressional hearings covering passport legislation in 1957 and 1958. He argued that because the Department testified it already had the power it now asserts, and that legislation would serve as a mere clarification, Congress was effectively put on notice; its failure to reject this Executive interpretation is said to convey implicit approval.
This argument cannot withstand scrutiny. Expansive assertions made during the 1957 hearings must be read in light of Kent v. Dulles, which seriously limited the Secretary's power to deny passports in analogous circumstances under then-existing law. Immediately following the Kent decision, the Administration introduced a bill that would have given the Secretary the precise authority sought here.
But Congress failed to enact what was sought, and indeed several Senators expressed opposition or concern over the national security and foreign affairs provisions of the Administration bill.
Implied authority is not gained in this fashion.
Nor do the 1978 amendments constitute congressional assent by inaction. Legislative silence cannot be read as implicit adoption of an obscure, virtually unused regulation that limits the free exercise of protected rights. See Lynd v. Rusk, supra, 128 U.S.App.D.C. at 405-406, 389 F.2d at 946-47. This is particularly apparent where, as here, the action that Congress did take, i. e., cutting back the Executive power over area travel restrictions conferred in Zemel, is hardly receptive to implying additional delegated authority. See Sen.Rep. No. 842, 95th Cong., 1st Sess. 14-15 (1978).
The Court is forced to conclude that the Secretary's promulgation of the challenged regulation was without authorization from Congress. It is unnecessary, therefore, to consider the additional attacks on the regulation based on the First and Fifth Amendments.
This holding in no way is intended to affect the President's authority to limit Agee's travel by other means. While it is obvious in the present crisis that the national security may be endangered when a former government official travels among foreign countries denouncing the United States' intelligence service and revealing the names of government agents, the precise problem presented is whether the regulation invoked was legally authorized. If Agee is indicted for any violation of law, his passport may be cancelled. If his activities are detrimental to the hostages in Iran, a special statute exists, 22 U.S.C. § 1732 (1976), which appears to give the President extraordinary authority to act. There may be other options. All that is held here is that because Congress has not acted to grant the Secretary authority, the regulation in issue cannot be upheld.
Plaintiff's motion for summary judgment is granted; defendant's cross-motion is denied. The regulation having been declared invalid, plaintiff's passport shall be restored.