Zemel v. Rusk

Earl Warren:

Louis Zemel versus Dean Rusk, Secretary of State, et al.

Mr. Boudin.

Leonard B. Boudin:

Mr. Chief Justice, may it please the Court.

This appeal from the District Court for the District of Connecticut raises three issues.

First is whether the Secretary of State has inherent power, executive power, or has received statutory authorization to prohibit travel to a particular country, in this case, Cuba.

The second is whether the statutes, if they give such power are constitutional, and there is also presented the question as to whether — this was a proper case for a three-judge court which is said in the matter.

The statutes to which I have reference were of course the statutes which were involved in Kent against Dulles in a somewhat different connection but I will refer to that decision if I may.

This case arose when the plaintiff, an American citizen living in Connecticut and holding a passport valid for travel, applied to the Secretary of State for the endorsement of such passport for a travel for Cuba.

Such an endorsement appeared to be required because the Secretary of State on January — in January of 1961 had announced that all existing passports were made invalid for travel to Cuba and that special endorsement would be required if the applicant wish to go to that country.

And he indicated in the public announcement and in the press release that such endorsements would be given only in cases in the public interest referring to two such cases specifically, this paper then and businessmen with pre-existing business interest in Cuba, referring of course to American businessmen.

At that time as Your Honors know, it was a crime to leave the United States without a passport, a crime established by the Immigration and Nationality Act of 1952.

So the plaintiff applied for the endorsement of the passport simply to satisfy as he said his curiosity and to be able to fulfill his duties as a citizen, his responsibilities as a citizen and knowing what was happening elsewhere, and the Secretary saying that he did not come within — either of the exceptions or the broad general exception of public interest, denied the application.

Whereupon this suit was instituted in the District of Connecticut, and a three-judge court was sought because the complaint requested it and in the complaint, it is alleged that the Passport Act of 1926 and the Immigration Act of 1952 are unconstitutional on their face as applied.

Because among the other things, they interfere with liberty of movement and more specifically, they contain an invalid delegation of legislative power to the Secretary if construed as the Secretary construe them.

The complaint also charged that the regulations themselves were not authorized by the statute and were unconstitutional.

A three-judge court was appointed under Section 2282, and that court after hearing the case by a divided vote, upheld its jurisdiction as a statutory court and by a divided vote, a different division held that the appellant was wrong on the merits.

The principal opinion written by Judge Clarie upholding the jurisdiction of the statutory court, said that the two statutes to which I have referred to which I shall have to discuss at length, authorized the Secretary of State to prohibit travel to Cuba.

Judge Blumenfeld, district judge, held that — and he stated in his view, the core of the action was an attack upon the Secretary’s behavior rather than the statute that the statutory court did not have jurisdiction.

He said specifically that he did not regard the Immigration Act of 1952 as in anyway authorizing the Secretary’s action but he did regard the Passport Act of 1926 was giving such authority and he said that on the merits, the Government was correct.

Circuit Judge Smith, agreeing that the Court had jurisdiction because a substantial question was involved with respect to the constitutionality of the statutes, pointing out specifically the problem of delegation of legislative power which we had raised without the opinion that very likely, Congress had the power to authorize an area restriction or to impose the area restriction but the Secretary did not have such power.

This case therefore comes to the Court with the problems of inherent jurisdiction and of statutory jurisdiction.

Do you — there’s no jurisdiction (Inaudible) Court of Appeals here?

Leonard B. Boudin:

Yes we would, but not to this Court of course.

William J. Brennan, Jr.:

Did you file one?

Leonard B. Boudin:

No, we did not Your Honor.

Now, in considering —

You’re not far from that.

Leonard B. Boudin:

I think we are not under the decisions of the Court.

In considering this problem, I propose to discuss first the entire statutory framework in order to achieve a necessary understanding even on the jurisdictional problem, the 2282 problem then to move into the inherent authority point and then the constitutional point and finally, 2282.

And I shall allocate my time for the purpose of covering of all of those points.

Leonard B. Boudin:

The statutory framework is a rather complicated one.

And in considering it, we of course bear in mind that in Kent against Dulles involving these very statutes, this Court said, first, that if the liberty involved which it described in detail, liberty of movement, the right to travel, was to be restricted, it would have to be at least with the action of Congress or have to be in the act of lawmaking.

And then the Court established or set forth two criteria.

First it said that where liberties value as this, liberties of movement are involved, a statute giving the Secretary power would have to be narrowly construed.

And then, that where the statute did give such power under such narrow construction, there would have to be standards to guard the Secretary in determining how the statute was to be applied to restrained liberty.

The two statutes that are involved here are in a sense not relied upon exclusively by the Government, that is, the Government at no point says that either of these statutes actually gives the power which it seeks.

It attempts to achieve what is called a symbiosis between inherent executive power which we discuss next and the statutory power.

And the language of the language of the Government’s brief is phrased in terms of the statutes approved or ratified or the statutes give support to the question of inherent executive power.

But I propose the purpose of analysis to discuss the two statutes of the Executive power separately.

Now the first statute, the Passport Act of 1926, the Court will recall from the discussion of the matter in Kent.

It derives from the old Act of 1856, recodified in 1902 and finally found its way in 1926 in the present form, substantially the same as it has been for more than a hundred years.

And this statute provides that the Secretary of State may issue passports subject to such rules and regulations that the President may lay down and no other person shall issue passports.

On its phase, there is of course no reference to the imposition of area restrictions or geographic limitations.

In Kent against Dulles, the statute came to the Court on a claim by the Secretary that it gave sufficient discretion to deny a passport for political reasons.

In that case, board membership and the communist party or plain membership of the communist party and the Secretary pointed in that case to the implementing Executive Order 8756, promulgated in 1938 in which the President in one section said, the Secretary shall have discretion to issue, reject, to withdraw, cancel and limit the geographic application of passports.

In this Court, bearing in mind the nature of the liberty involved and with the criteria which I have adverted to, said that despite this discretionary provision in the Executive Order 8756 —

(Inaudible)

Leonard B. Boudin:

Thank you very much Your Honor.

I suspect in my brief I put it both ways.

Thank you — that the Congress had not given the Secretary this authority to deny passports for political reasons.

There is, I should add, nothing in the legislative history of the statute when it was originally passed really to raise salaries for country officials in 1856, and in 1902 and 1926 would suggest any intention to impose area restrictions or to authorize the Secretary to do so.

And of course, 1856, and 1902 and 1926, there were not in effect any statutes making it illegal to leave United States without a passport.

And so their passport at that time as I think the Court pointed out in Kent, was mere convenience.

Potter Stewart:

Where was it — does — so that my recollection can be refreshed — to what country did Mr. Kent want to go or did he just want a passport (Voice Overlap) —

Leonard B. Boudin:

Mr. Kent wanted to go to Ireland to paint.

Potter Stewart:

To Ireland?

Leonard B. Boudin:

Ireland to paint.

Potter Stewart:

And he was denied any passport at all.

Leonard B. Boudin:

He was denied any passport (Voice Overlap) —

Potter Stewart:

Because of his alleged political —

Leonard B. Boudin:

Precisely (Voice Overlap) —

Potter Stewart:

— philosophical beliefs —

Leonard B. Boudin:

Precisely.

Now the — oh, there were hearings held on the Act of 1926.

They are referred to in our brief and the Court will see from an examination of the hearing particularly the testimony of a very fine public servant that says the Secretary of State, Wilbur J. Carr to discuss not this problem that there was no mentioned made of the desire to give area restriction power.

And when reference was made in the question of 1926 hearings to administrative rules of the Secretary of State, he made it to rule to the Secretary of State — he made it very clear that these were minor administrative rules which were not intended to burden the President and we pointed — it point this out here as we did in the Kent case were the same proposition.

Then the Government said that there is an administrative behavior prior to the Act of 1926 which somehow rather supports the claim that the Secretary has this power.

On an analysis of the very few instances offered by the Government, we see that they — insignificant compared to the number of items which are offered to the Court in the Kent case which are reflected in dissenting opinions there and in the Government’s brief.

We see also that some of the authorities relied upon the Government here are not cases where the Secretary issued prohibitions upon travel but where a time that a passport was necessary, the Secretary refused to make a passport valid for a particular country.

In other words, he said, restricted to this country or not applicable to this country.

But that did not constitute a prohibition.

That did not prevent somebody in 1936 for example from going to Spain.

Even though the Secretary said, “No passports are valid for travel to Spain”.

And when one compares, the hundreds of examples involved in the several cases mentioned by the Government, the Pocket Veto Case, the Midwest Oil case, hundreds or thousands of examples in another case, there is clearly no supporting precedent here which the Government can say Congress was aware of in 1926 and that Congress adopted.

Now the several examples given by the Government, there is an awareness by Congress of what was done but in here, there is not only — no awareness by Congress indicated that the Secretary did something but he did practically nothing.

I will — I should say that when the Secretary did in May of 1952, say that in a press release that passports will not be valid for travel to China.

He added in the same press release quoted in our brief, that this is not intended to be a prohibition.

And the association of the bar in its well-known study on passport procedures complimented the Secretary of State for his honest admission as they said that he didn’t have statutory power to prohibit travel to Cuba or to (Inaudible) — any country.

It may be that this compliment was a little premature in view of the fact that the Government now rereads the press release which it made in 1952.

In considering the Act of 1926 and its meaning, as well as the Act of 1952 which I will refer to in a moment, you also must bear in mind the efforts made by the Government since at least 1957.

To secure legislation which would give this power to prohibit travel to particular countries, it was in 1957 that the massive report of the Government’s — the report of the Government on government security — commission on government’s security was issued, relied upon by the Government in Kent against Dulles, referred to I think in the dissenting opinions there.

And that report of representative of the Congress and representative of the Executive branch, recommended that there’d be legislation which would give the Government, the Secretary of State power to restrict travel to a particular country.

It prohibits travel to a particular country.

When this Court renders decision in Kent against Dulles in June of 1958, then the President sent an emergency message to Congress, recommending the passage of legislation of two types in a single bill was presented to the Congress.

First, permit the Secretary of State to deny passport for political reasons.

And second, authorize the Secretary of State to declare a travel to particular areas could not occur.

This was not a sport, an accident, a desire simply to shore up a power clearly existing because extended hearings were held on the particular bill and those were introduced in one session after another of Congress and hearings were held on the subject and yet the Congress from 1957 to date has failed to enact the statutory authority requested by the administration and requested by many senators.

Now, it seems to us bearing in mind the Federal Trade Commission against Bunty (ph) and other decisions of the court where it’s indicated that attempts by the administration to secure legislature released some evidence.

Obviously, we don’t think it’s conclusive of a lack of power but this indicates that the Passport Act of 1926, no more authority for the imposition of area restrictions that it was the intent — the imposition of conditions relating to politics.

I turn next to the Immigration Act of 1952 even though as Judge Blumenfeld points out.

Leonard B. Boudin:

It is not referred to in the press release or the public notice which the Government — which the Secretary issued in January of 1961, because we alleged in our complaint that the Government is relying upon that statute as well.

The Government answered to its complaint that the statute as well as inherent executive power authorized it to do so.

And at least Judge Clarie in the court below relied upon that statute as well as the Passport Act of 1926.

What then does the Immigration Act say?

Passed in 1952, I’m referring to Section 215, and being essentially with modifications that I may indicate, a rewriting of the Acts of 1918 and 1941 both were timed Acts.

The statutes says, anytime of war or of national emergency, when the President proclaims that controls are necessary, it should be unlawful for an alien to leave or enter the United States without permission or for a citizen to enter or depart from the United States without a valid passport.

Now there is clearly nothing on the face of the statute that says the Secretary shall have the right to say where the alien should go, that’s why I mentioned the alien example or where the citizen shall go or where the citizen shall come from.

And if one examines the legislative history of the Acts of 1918 and 1941 there being no special legislative history of 1952 on this point, it is perfectly clear from the committee report, from the debates on the floor of Congress, what the purpose of Congress was.

It was actually a border control statute, a sealing off of the borders of the United States in war time.

Because of the fact that we didn’t want American citizens, yes, and aliens that we believe guilty of espionage although we couldn’t prove it, or would attempt to disaffect the Armed Forces or engages with (Inaudible) — 1918 and other subversion, we didn’t want to let them come back into the country.

And if they wanted to go out of the country, we didn’t want them to go out of the country.

That was why the Government quite properly considered this at least at some help to it in the Kent case and the Government’s Kent brief develops this whole legislative history to show that the 1918 statute was directed at particular kinds of people who were thought to do particular kinds of things.

Of course this Court held that that didn’t apply to people of particular political views in the Kent case.

But there is nothing in the legislative history of 1918 or 1941 statutes would suggest that anyone had in mind the giving of this power to prevent travel to a particular area.

It is completely a border sealing statute.

And when the President promulgated his various Executive Orders in 1918 and 1941 on the subject, there is no reference in those Executive Orders to the question where the person was going to go.

There was a great deal of discretion given to the Secretary under the Act of 1926.

But we’re talking now about the Act of 1952.

Now the Act of 1952 as it comes before this Court was implemented by an Executive Order, 3004 of January 1953, predicated upon an earlier Executive Order of December 1950 by a reason of declaring a national emergency by reason of the Korean War.

And in Proclamation 3004, the President said, by reason of the prior existing national emergency declared in December 1950, I believe that travel controls — controls all the entry and departure under the Act of 1952 are required and so, he declared in that Executive Order — in that Proclamation that it should be unlawful for any citizen, pass over the alien, to depart from or enter the United States without a valid passport.

Not a word there about area limitations.

(Inaudible)

Leonard B. Boudin:

Yes.

There — I say that’s true.

I’ve seen in another case the argument made that the less amounts (Inaudible) — the greater must include the lesser and on the phase of it, it seems like a reasonable argument except that we’re dealing with two different things.

If you read the legislation of 1918, you will see that the Congress was determined to keep people out or to keep them in.

There was no suggestion made there that we could determine particularly in the foreign relations point which is involved here or for any reason that a person could go to a particular country.

Well, I think that logically, there is this lesser — greater argument that can be made.

It happens not to be the realistic situation that confronted Congress when it passed the Acts of 1918 and 1952.

It really meant to keep American citizens out or to keep them in and it was completely indifferent in the very long legislative history to where they were going.

Leonard B. Boudin:

We were establishing a class of citizens in the Act of 1918 and 41 and 52, a class of citizens who were so dangerous that they should not to be allowed to have movement across the American border.

There was no suggestion there and at any time that we were concerned about where they were going.

From my point of view, an espionage agent should not be allowed into the country even if we couldn’t prove that he was going to be such an agent.

Earl Warren:

We’ll recess now Mr. Boudin.

Leonard B. Boudin:

Please the Court.

I would like to say a few words more about the Act of 1952, the Immigration Act in answer to some of the questions raised by Mr. Justice Goldberg particularly.

The first is that, we are dealing with two different kinds of things if I hadn’t made that clear — my view on it before.

We’re dealing in the present case with an attempt by the Secretary of State to prescribe travel to a particular area in the interest of the Foreign Affair’s power which he articulates.

And the intention of Congress in the Acts of 1952, 1918, and 1941 to declare that a certain kind of person can be kept out or in so that we are — when we deal with different kinds of elements, it is unfair to make this a greater than and a lesser fatal.

The second is that of course, the Government itself in its brief says not that the Act of 1952 gives the authority to impose area restrictions but referring to page 56 and 57 of its brief.

It says that the statute and the Government uses careful language as always, confirms the authority of the Secretary to impose area restrictions that Congress must have been aware of the Secretary’s passport restrictions although how it doesn’t say, and that the new provision was not intended to curtail the existing discretion of the Executive, something quite different from saying that the new provision was intended to give a power to the Executive.

And finally, we must remember, I think, that this Court did say in Kent that it would construe narrowly all delegated powers that curtail or dilute the liberty of movement and civil liberties.

And if the statute of 1952 were all susceptible, of two different meanings, I think under this principle, the meaning which I ascribe to it supported by the only legislative history on the subject would have to be the one given, given the choice of meanings, the nature of the liberty must determine the construction given to statutes.

I should also say that the statute contains no standards at all nor as the President’s Proclamation 3004 and that in itself as a double-barreled operation as this Court has pointed out.

First, it’s a way of construing the statute.

If it doesn’t have standards, if it is too vague, we try to give the statute a construction which would not interfere with civil liberties.

Finally, if the statute must be given that meaning and we come to our next to the last point then it would be declared unconstitutional.

I don’t think the Court will have to come to that decision here anymore than it did in Kent.

But now, I do want to turn because it is a major part of the Government’s brief, intertwined with the statutory argument to the question of inherent executive power, we think that the Court meant exactly what it said in Kent.

When it said, if that liberty is to be regulated, talking about liberty of movement, the right to travel, it must be regulated pursuant to the law making functions of the Congress.

And aside from the Court’s conditions to how that law making power was to give authority to the Secretary, our emphasis here is that the inherent power theory of the Government is inconsistent with the lawmaking principle laid down in the Kent case, citing Youngstown against Sawyer.

Arthur J. Goldberg:

Do you think that (Inaudible) inhibit the power of the President or the (Inaudible) operating pursuant to invocation of Martial Law to deny passports to people to go to an enemy country — (Inaudible) countries in actual conflict?

Leonard B. Boudin:

I do think Your Honor that in the case of actual war, we are in a very special situation that was suggested in Kent case and I don’t want to that far when we’re dealing with actual war and not dealing with the problem of foreign policy.

Let’s close the problem there.

There is an historic practice of preventing civilians in going to enemy occupied territory, the area of conflict, but of course, that neither New York nor Cuba happens to be in the terror of conflict.

Now, I do —

Arthur J. Goldberg:

What about to the (Inaudible)

Leonard B. Boudin:

Well, I think that was a special situation and of course Congress acted to that by a resolution.

I think when you had a crisis of that kind, fortunately, we all think it’s passed because we have a very special situation which should not however be a justification for a continuance of a situation of controls in a subordinate official after all, the Secretary.

But it was only the Secretary who decides that the travel should not be permitted to go to Cuba.

Arthur J. Goldberg:

Of course today, we decided in Utah, I know if you haven’t had a chance to read it and if the President’s authority maybe delegated to the Cabinet Officer.

Leonard B. Boudin:

Yes, I heard that.

I turned pale for a second.

But I remembered that there was somewhat of a difference between the rights involved there and the liberty of travel, particularly in view of what Your Honor, the Court has said through Your Honor in Aptheker on the relationship of the right to travel, to freedom of speech and to association.

I think that it is true that in some situations, the discretion can be delegated but I think here, not only is there no delegation specifically set forth by the President to authorize under this Act of 1952 to authorize area restrictions.

But there are no standards whatsoever, nothing with regard to the Secretary of State and it is a very important restriction upon liberty.

Now of course the Secretary’s authority under the inherent power authority is claimed in this case to exist despite what the Court said in Kent.

Despite what was said in a very serious situation as the Court knows in Youngstown with respect to inherent executive power, the actual Korean War.

It is said that to — Kent is said to be distinguished on the following grounds.

First, it is said that Kent involved the right of exit, not the right to travel.

I think we can pass that off into somewhat, with all due respect, make way to argument because Kent officially talks about the right of liberty of movement as did the Court in Aptheker and actually, the right of exit has a very little meaning if it’s not an exit to go somewhere and to do something.

And when one considers what the Court has said about the function of travel in terms of making one a better citizen in seeing what is happening elsewhere so that he can participate in the citizen’s processes of government, then to say there is no liberty of movement but only a liberty of action is I think doesn’t really have to be answered very much.

The second argument —

Earl Warren:

Mr. Boudin, where would you draw the line between a situation like the missile crisis and this situation?

Leonard B. Boudin:

I think the missile crisis represents an actual war time or equivalent to war time situation and that if there were a claim of eminent danger to the United States in the instant situation, we might then have to face the problem of the President’s powers as Commander-in-Chief.

But as I will indicate in my argument on the constitutional point Mr. Chief Justice, the Government makes it perfectly clear that there is no danger to the United States in the current situation that what it is doing is in the interest of a foreign policy, restricting the liberty of the citizen.

When we approach war of any kind then I think we have to have — and I think that was indicated also in Kent.

Have to have new sights and new approaches to the problem to qualitative difference.

And my argument does not hold that a situation of war or its equivalent or of actual danger to the security of United States that we are not faced with a different criterion and greater rights in the President.

The instant case, the Government also says that this is Foreign Affairs because a passport is a diplomatic argument, diplomatic instrument but of course, the Court dealt with that problem specifically in Kent.

And then it says that Kent involved political association but of course, it is not only in cases of political associations that the lawmaking power of Congress is the only power that can operate and take away rights if it could take away them there.

In Youngstown, it didn’t involve critical association.

So I think we come really to the basic argument of the Government and that is this, and it will — that somehow rather — because the President is the organ as the Government says in the field of Foreign Affairs though it doesn’t say for some purposes, an exception must be made because this says the Government, a Foreign Affairs problem.

And the Government cites two kinds of cases, first is the Curtiss-Wright and the Waterman Steamship Company case, Chicago and Southern.

In both cases, the Court will recall there were statutes involved and the use of the President’s — the reference to the President’s importance as the organ of the United States Government in dealing with foreign affairs was in the first case in determining to this right, whether there were sufficient standards in the statute sufficient to authorize the President to invoke the arms embargo in the Chaco County.

And in the second case, the Waterman case, the question was raised in connection with the reviewability by the courts of a C.A.B. order which have the approval.

It was implemented by the President in connection with international airways.

And there, it was said that because of the President’s support and function and inability to tell the courts or unwilling to tell the courts, the reasons which motivated him that this was not subject to judicial review after the C.A.B. had acted.

But in both of those cases, we’re dealing with statutes and the Government presents a little more difficult situation or I think answerable when it talks about cases where there were no statutes and we have there the Litvinov Assignment cases in United States against Pink and United States against Belmont.

But a reading of those cases indicates that the theory upon which the Court based its decision whether the Foreign Relations power of the Federal Government were superior to the policy of the State of New York and that in both cases, in neither case where they have property rights much less liberties of individual resident in or citizens of the United States were involved.

Leonard B. Boudin:

In Belmont, the Court — I think through Mr. Justice Douglas, pointed out that Belmont was a mere stakeholder.

He said he thinks that some Russian insurance company owners ought to have the money instead of the United States Government but he didn’t claim the money.

And in United States against Pink, it maybe confusing, Pink and United — the justice involved United States against Pink.

The Court also made it clear that all domestic creditors had been paid.

Now we were dealing utmost with the question of whether foreign creditors should be paid as against the right of the United States and they are the federal policy with how it’s superior to the state policy.

Now, I do not think that these cases which are very special cases, established an inherent executive power and of course, no judge in the court below came to that conclusion.

And it does seem to us, passing over what I have discussed before, the attempt to get legislation for eight years which have a bearing also on the inherent executive power.

I think that what we have here in the sense, an attempt to bring back the old writ ne exeat and as this Court held in the Blackmer case, whatever vestigial remains there are of the writ ne exeat regno are in the Congress rather than in the President of the United States.

This brings us to a hard issue which the Court may or may not have to face, namely, the constitutional issue.

And we have to turn to determine what it is that the Government says.

We have to determine to Public Notice 179 at record 68 and to press release number 24 in record 69.

And there, the Government says essentially that it will not allow American citizens to go to Cuba because of the breach and diplomatic relations.

And turning to record 69, because that breach has prevented – prevents the United States from giving normal protective services for people visiting Cuba.

Now, I would submit to Your Honor that examination of the Government’s brief would show that factually, there is no indication that there is any inability to extend diplomatic protection to American citizens to Cuba and that the Swiss Embassy there has been most effective in numerous things whether they involve individuals or the return of airplanes or the return of fishermen — Cuban fishermen from the United States to Cuba in representing the interest of the United States.

And if the record of events immediately preceding January 1961 and those which followed with Americans in Cuba playing chess, attending brain con — surging conventions and so forth, they are two there now actually.

Arthur J. Goldberg:

Who do we have here (Inaudible) decide the question of whether this statute (Inaudible)

Let’s assume now in the specific statute that is based upon congressional (Inaudible) — for the United States and the word of the Secretary makes this determination (Inaudible)

Your argument (Inaudible)

Leonard B. Boudin:

No, I did not mean that Your Honor.

I would argue something different in that case namely that the liberty of movement of the American citizen as such that even if there were a danger of American citizens being injured, they should have the right to make the choice rather than the Secretary of State even though he was so authorized by Congress.

I’m not suggesting that the Court would make the evaluation of the particular case as to whether the danger and —

Arthur J. Goldberg:

You’re suggesting (Inaudible) that Congress did not make the determination, is that part therefore (Inaudible) involved our country in the war?

Leonard B. Boudin:

Yes, I am saying that although as I say, not necessary for me to urge out here.

I am saying that because I think that we have for many years allowed American citizens to go to countries, not only countries with which we have broken diplomatic relations, but countries which we have not recognized like the Soviet Union from 1923 to 1933 when we allowed American citizens to go there.

And that they — there is no indication at all historically that there’s a relationship between recognition, diplomatic relations and protective services.

If I’m — don’t want to avoid, Your Honor’s question which really wasn’t on the diplomatic level and my answer is that we would argue if these were a case like that, that the American citizen had a right to make the determination.

And just as exception has been made in the past, the newspaper correspondence who wanted to go I think to Albania where the Secretary of State saying, “Now, remember you’re going on your own risk and you have to admit that you’re doing so.”

So I think that going on your own risk is also a right of the American citizens.

But the reason why I don’t think I have to press the point here besides the fact that no statute has said so is because that does not appeared to be the real basis of the Government’s argument.

The Government’s argument is a little different.

Leonard B. Boudin:

It says, “Cuba is engaged in an effort to subvert Latin America generally.

The best way to handle Cuba is to put it in a form of coventry, prevent any kind of communication certainly of persons between Cuba and Latin America.”

We ourselves are not worried to United States about this kind of subversion of our country but in order to furnish a good example to Latin America, we must prevent our citizens from traveling.

What was (Inaudible)

Leonard B. Boudin:

I would have serious questions as to whether the United States Government through Congress could prevent American citizens from traveling because they would spend money abroad.

Do you conserve this (Inaudible)

Leonard B. Boudin:

Even to conserve.

Yes, I would have serious consideration.

I would not — other way have any reservations — not involved in that case at the moment with respect to the right to declare an embargo on trade.

But I do think that the relationship between travel and the First Amendment freedom is so great that even given with this particular situation Your Honor has adverted to.

I would not recognize the power of Congress to prevent such travel.

As I explained —

Earl Warren:

What (Voice Overlap)

Arthur J. Goldberg:

Would the -(Inaudible) First Amendment really do?

As I read this, I mean, (Inaudible)

Leonard B. Boudin:

Yes.

What he essentially wants to do is what I thought the Court had indicated sympathy for, namely, to learn what was happening in another country.

And why do you (Inaudible)

Leonard B. Boudin:

Precisely.

Not to rely exclusively upon — I don’t want to say white papers but to raise — not to rely exclusively upon government publications, press releases and newspapers.

And I think one of the problems who indicated the whole China situation is this (Inaudible) of news and ignorance on the part of the American people as to what has — happening in these countries.

See the bad and the good.

Now, we think that even if we were not dealing with so important a right as liberty of movement, it would be improper to prevent American citizens from traveling for the purpose of furnishing an example to another country or to another group of countries.

But when we consider and I shall not repeat because the Court is more familiar than I am with what it had said in Aptheker in the several opinions there and in Kent about the importance of the right to travel.

And it does seem to me that even if we do want to furnish a good example, we can’t do it by taking away the right of the American citizens to travel.

I may point out that in one of the mini — foreign minister conferences which a resolution was passed, we persuaded or agreed with our allies in Latin America that we would prevent all citizens or discourage the travel of all citizens subject to the constitutional rights or provisions of each country.

Of course in this case, we’re talking about the constitution of the United States.

It is relevant, I think also to bear in mind that no other of our democratic western allies has found this kind of a restriction upon travel, a blindfolding technique basically necessary for its functioning, any more than in the Kent case.

We are able to point out — we pointed out to the Court, any of our western allies found that a restriction upon travel for political reasons was necessary.

And — well obviously, we aren’t bound by their failure to adopt equally restrictive measures.

Leonard B. Boudin:

It is of some relevance and has been indicated by the Court what other civilized democratic nations have thought — it proper to do with respect to their citizens.

I think I have made it clear that when we moved into the field of trade, possibly money, possibly finances, different criteria might be applied but not when we’re dealing with the right to travel.

Now I would like to turn last to the statutory problem which obviously concern the Court which postponed the issue of jurisdiction and that is whether or not we came — we sued properly under Section 2282.

We have two things, first, we think that the Government statement of the governing rules is incorrect.

And secondly, we think we have met even the criteria set forth by the Government.

Perhaps, in order to be sure I don’t lose my time, I ought to say that we have complied with the Government’s claim of the appropriate criterion because what the Government said essentially is, “You must attack if you want a three-judge court, a statute on its face.”

It suggest by its permissive compulsory dichotomy argument that if you are merely attacking a statute as unconstitutional because of something which the regulatory administrative body has done pursuant to it, you are not attacking the statute under Section 2282.

Now, 2282 does not say in terms that one cannot — one must not seek an injunction under it unless you’re attacking a statute as unconstitutional on its face.

And there is nothing in the decisions of this Court would suggest the contrary.

When the Government refers to the Phillips case and the Bransford cases as authority here, the Court will note that in neither of those cases was the statute attacked as unconstitutional in the complaint.

And indeed in Bransford, the Court itself said that if the statute had been sought to be attacked in its application, this would have been a proper case for three-judge court, a case with the 2281 but the basic principle on application we think is reasonable.

When the Government says that William Jameson against Morgenthau is a direct authority against us, it is pointing to a case in which this Court said that no substantial attack upon the statute involved had been made.

And the Government cannot very well assimilate that case to this by saying that our constitutional attack on the statute is frivolous.

We’re not attack is based in part upon what this Court itself said in Kent, namely, that questions of delegation of legislative authority raise serious constitutional questions.

So that even if we are doing — and I may add that we have an analogy under 28 U.S.C 1257, subdivision 2 on the appeal from the highest court of the state to the Supreme Court, to this Court where the constitutionality of the state statute is joined in question and I think it was in the Dansky (ph) case where this Court and other cases has held that constitutionality drawn in question includes drawn as applied and not merely drawn — not merely on its face.

And I think with Mr. Justice Holmes in one of the cases we have cited had pointed out as an ascent.

You’re always attacking a statute or almost always as unconstitutional as applied to a particular situation.

The fact that we in this case are also alleging that we do not regard the statutes as applicable, as authorizing the action, doesn’t derogate from our right to attack the statutes as unconstitutional and doesn’t diminish our obligation, not merely our right, our duty to seek a three-judge court if we want to enjoin the operation of the statute insofar as it authorizes the imposition of area restrictions.

And the reference by the Government to Kent against Grail (ph) where we didn’t — where Kent did not seek a three-judge court is again not a pra po because a reading of the complaint in the Kent case drawn — not by me but one of my associates showed that it did not affect the constitutionality of the statutes at all and suggested — and instead argued that the regulation of the Secretary of State and only the regulations were in violation of the Constitution and that they were not authorized by the Act of 1952 or the Passport Act of 1926.

But, as I say, since — oh, let me accept the Government’s criterion that a statute must be attacked upon its face.

And so I refer Your Honors was respectfully to paragraph 15th of our complaint, page 4 of the record where we say, the Passport Act to the Immigration Act are unconstitutional both on their face and as applied.

Because on their face, they had to feel the plaintiff’s rights and set forth liberty of movement because they are construed and applied to prevent travel even in the absence of an actual emergency.

And (c), they contain no standards and are therefore an invalid delegation of legislative power.

And we therefore, in paragraph 18 (b) on page 5 of the record, seek a decree enjoining the defendants from carrying out or enforcing the said statute as aforesaid.

There, it seems to me we come clearly, not merely with the right to sue under 2282 but with the obligations to do so.

I will reserve some portion of my time for rebuttal.

I thank you Your Honors.

Earl Warren:

Alright.

Mr. Solicitor General.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

Archibald Cox:

I shall deal first with the jurisdiction in the conventional manner and then with the merits.

We submit that this Court has no jurisdiction of this direct appeal from the District Court because a three-judge district court was not required in substance because the appellants are seeking only an injunction against what they complain — against what they alleged is the misconduct of an executive official and not against the enforcement of a statute.

A direct appeal of course lies to this Court only when a three-judge district court is required.

In Section 2282 of Title 28 requires a three-judge district court only where the plaintiff seeks an injunction restraining the enforcement operation or execution of an act of Congress or repugnance to the Constitution of the United States.

The statute does not speak of request for injunctions restraining the allegedly unconstitutional execution of some permissive policy and I may say I’m not distinguishing between a statute on its face and the statute as applied, of course, there’s nothing to that.

What I’m distinguishing is a statute that directs an executive or administrative official to do something.

Where of course, an injunction against the enforcement of that statute comes under Section 2282 and a bill which seeks simply to enjoin an executive or administrative official for doing something that he may do of which — or may not do, which we submit most clearly does not come within the statute.

Now it’s important to note that at the time Section 2282 was enacted, Congress had before it the example of Section 2281, the immediately preceding section, which requires a three-judge court for the issuance of injunctions in the case of state action against where the injunction would enjoin the operation and execution or enforcement of (1), any state statutes, and (2), the order of any State Board or Commission acting under a state statute.

And the second part was added separately by amendment.

But both parts were there at the time when Section 2282 was enacted.

And when Congress enacted Section 28 — and when Congress enacted Section 2282, it followed the first part and it did not follow the second part, thus indicating that it drew a deliberate distinction between enjoining the enforcement of statutes and enjoining the enforcement of orders entered by officials who have been delegated a — what I call a discretionary powers, some power of choice under a statute.

Now appellant says that here, he seeks to restrain the appellees from carrying out the Passport Act of 1926 and the Immigration and Nationality Act of 1952.

But when one looks below the surface of the formal request, it becomes perfectly clear that the thrust of the requested relief is directed entirely at the orders and conduct of the Secretary of State.

Appellant says, he wants to go to Cuba.

There’s not a word in the statute that prohibits everybody from going to Cuba or that prohibits appellant for going to Cuba in that manner.

Not a word in the statute directs the President or the Secretary of State to forbid travel to Cuba.

If the Secretary had not chosen to change the regulations for reasons I’ll explain, and to deny the appellant a passport in common with others then of course, there would be no claim here at all.

It was the result of the Secretary’s choice.

And what is more, the appellant would secure complete relief if you are entitled to it, through an injunction against the Secretary’s discretionary action if any relief were warranted.

Arthur J. Goldberg:

General supposed the statute had said the President or the Secretary of State himself may issue area restrictions in the areas that the Secretary finds with problem in the area — in the world.

And then the Secretary issued an area restriction for Cuba and in such a situation wouldn’t the appellant making a challenge such as he makes here probably have the three-judge court?

Archibald Cox:

I would think not.

I would think there was one qualification that I perhaps should note to that.

I was going to mention it later but it — perhaps comes in better now.

There are cases, chiefly Allen against Grand Central Aircraft, that might be thought to say that if the whole statute, the whole thing is attacked on some ground that would invalidate it entirely.

Then even though it has no bite until an executive official or administrative officer has decided to apply it in a given way that that is within Section 2282.

In Allen against Grand Central Aircraft, the question wasn’t raised of both sides were invoking the jurisdiction of this Court and I know of no case squarely on the point.

But so here if —

Byron R. White:

Well, Mr. Solicitor General, what if the — if the general attack that you mentioned is on the whole scheme is, say an invalid delegation —

Archibald Cox:

Well, I —

Byron R. White:

— no standards?

Archibald Cox:

I was just going to say that it would seem to me that insofar, as the appellant is attacking the whole statutes as an invalid delegation.

That if what was done in Allen against Grand Central Aircraft was proper that in this case, then there probably is jurisdiction.

As to that, I say only that his attack of that kind is we think frivolous that — and that therefore, this case on that point as on the other point as I will explain in a moment, is one where there is no jurisdiction in this Court.

Now the arguments that they’d attack is frivolous Mr. Justice White of course, it’s more convenient to develop when one comes to the substance of the constitutional question.

But if you think it isn’t frivolous then even though he is wrong on that, but Allen would tend to support it.

And I acknowledge that.

I’m assuming for present purposes in other words, that it is frivolous on that but that’s not a substantial question that if he raises any substantial questions in this argument under the Fifth Amendment and as to those we say, that he is attacking only the order and not the statute.

Now on both points, this case is very like William Jameson and Company against Morgenthau.

The case had two branches as it’s very clear if you go and look at the original jurisdictional papers and they throw a great deal of laid on the opinion.

First, the plaintiff’s alleged that — first, the plaintiff has challenged the constitutionality of the entire statute on the ground that the Federal Alcohol Administration Act invaded the powers of the states because under the Fourteenth — under the Twenty-first Amendment, the Federal Government had no power to regulate even interstate or foreign commerce in the intoxicating liquids.

A three-judge court was summoned, an appeal was taken here by William Jameson and Company and it was held as to that question that the unconstitutional argument was frivolous and that therefore a three-judge court was not required and that this Court had no jurisdiction.

Now there was a second part to the case.

The plaintiff’s argued in the — alleged in the second branch of their complaint, that the orders issued by the Secretary of the Treasury violated the Fifth Amendment for a series of reasons.

He said, they delegated power to the Government to the United Kingdom that they setup improper classifications and so forth.

And he alleged that those orders violated the Fifth Amendment and that in addition, if the statute authorized those orders, then the statute was to that extent unconstitutional.

And this Court nevertheless refused to consider the constitutional issues raised by the challenge to the orders on the ground that they were only a challenge to the order and not a challenge to the statute itself.

Now we say, we like in the delegation of power part of the case to the first branch and the attack upon the so-called area restrictions to the second branch, and it seems to us that the Jameson case is therefore controlling here.

I would just add two other thoughts.

It seems to me that the distinction we draw comports entirely with what is the practical sense of policy if you will, of the statute.

Ordinarily, it’s not true in this case, but ordinarily a challenge to the constitutionality of an executive or administrative regulation, does not put the judge who issues the injunction in conflict, in opposition if you will, to another branch of the Government in a sort of its highest capacity.

The statute relates to the case where a single judge is asked to set aside something that Congress has done.

That is not true or it’s an order of the Food and Drug Administration, of the Secretary of the Treasury dealing with the regulation of liquor or something like that.

In this case, we think that it does but the Court in opposition to the Executive branch in its most important function and we labor a great stress upon the importance of this question here.

But that would not be the ordinary situation.

Now, the second reason like this accord with common sense is that if the appellant’s argument as I understand it were adopted, it would not only put an exceedingly heavy burden upon the federal judiciary and upon this Court but it would also really mock the legislation.

For what Mr. Boudin says in his brief is, that in Kent against Dulles, we didn’t say we contend that if the statute authorizes these regulations, the statute is unconstitutional.

We just said the regulations are unconstitutional and therefore, a one-judge court was proper.

But if we choose to put in, that the statute if it authorizes the regulation is unconstitutional just as the regulations are unconstitutional, then we’re entitled to a three-judge court.

Now I submit when you think about it, that allegation can be made or withheld if he is right in each and every case where the constitutionality of regulations is challenged because you always — the statute authorizes them then it is invalid they say (Inaudible) — or you can leave it out he says as they did in Kent and Dulles.

Archibald Cox:

And that seems to us to be a — not only inconvenient but thoroughly improper rule.

If we are right in thinking that there is no jurisdiction in this Court, then the proper course as we put out — point out in our brief, would be to vacate the judgment of the District Court, remand the case to the District Court to enter a new judgment and the appellant could then take his case to the Court of Appeals.

Potter Stewart:

Would that be necessary in order — for time reasons?

Archibald Cox:

That has been — I think it would and that has been the regular course in cases of this kind.

We’ve collected the authorities in our brief and we would think that was the right thing to do.

Too much time, I think has gone by for him to note the direct appeal.

But this is — and of course, the statute for transfer unfortunately doesn’t apply here.

Potter Stewart:

Well, I was wondering about that.

Archibald Cox:

No, no.

That’s confined I think to criminal appeals.

Potter Stewart:

But the judgment then would properly be considered the judgment of a (Voice Overlap) —

Archibald Cox:

The judgment I think is then simply the judgment of a District Court.

Potter Stewart:

A single-judge district court.

Archibald Cox:

Yes, yes.

Potter Stewart:

Well, how about — well, which one —

Archibald Cox:

Or even if —

Potter Stewart:

— if there were a couple of this and there were dissenters here on each one of these issues.

Archibald Cox:

Well, I presume Your Honor as some — it happens in a few districts, the three of them could be considered a city gone bad and could —

Potter Stewart:

Could one (Voice Overlap) —

Archibald Cox:

— still make — but even a circuit, there may be a technical —

Potter Stewart:

Well, he was (Voice Overlap) —

Archibald Cox:

(Voice Overlap) of being acted whether he was assigned.

Potter Stewart:

Well, he was designated I suppose to sit as a District Judge but they might depend upon if you are just considering a single member of the District Court which single member you took here.

Archibald Cox:

It could.

There’s no question about that.

Well, it conceivably if — I think it would be proper to consider all three of them as sitting in the District Court.

Potter Stewart:

En banc?

Archibald Cox:

Yes.

But I haven’t looked into it as Your Honor can see by my expression that —

William J. Brennan, Jr.:

Well, how many districts are — is Connecticut divided into sub (Inaudible) or just single district?

Archibald Cox:

Connecticut I think is a single district.

But for example, in the eastern district of Pennsylvania, the Court occasionally sits en banc the District Court, used to at least and I’m suggesting there was — that that’s the way it could be considered here in this case.

William J. Brennan, Jr.:

But how many judge — at least one or two of these judges were judges of that District Court?

Archibald Cox:

Judge —

William J. Brennan, Jr.:

Clarie, (Inaudible)

Archibald Cox:

I think they’re both Connecticut judges.

Yes, they were both Connecticut judges and Judge Smith is a judge for that Circuit and in addition from Connecticut.

William J. Brennan, Jr.:

Well, if it was Judge Blumenfeld (Inaudible) the judgment, it might be different to Judge Clarie’s?

Archibald Cox:

It — I’m sorry, I didn’t get —

Potter Stewart:

I think Judge Blumenfeld on the basis of his opinion would enter a judgment from that of Judge Clarie.

Archibald Cox:

Yes, yes, but if there were three there and three voted, they could all sit in the District Court without 2282 being applicable.

I turn now to the merits.

On the merits, two questions of law are raised.

First, whether the Secretary has been given the authority to refuse passports good for a particular country.

When the consequence of his refusal maybe to prohibit such travel.

And second, whether the interdiction of travel to a particular country under the existing conditions, violates any of the appellant’s constitutional right.

In analyzing those questions, it seems to me in the utmost importance to understand that the Secretary’s restrictions upon passports, foreign travel to Cuba, are an integral and important part of the conduct of the foreign policy of the United States.

This is not a case like Kent against Dulles.

The withholding of passports for members of the communist party because of the nature of their beliefs and associations, had little or no relationship to foreign policy.

It was aimed not at — intercourse with a particular country because of the state of international relations.

But at a class of American citizens regardless of the country to which they wanted to travel, regardless of the state of our relations in any particular part of the world and regardless of the purpose of their visit.

Now here, it’s quite clear that this restriction is not aimed at any particular class of American citizens, it applies generally.

And it’s not an effort to shut people up in the country.

It is a matter of fact one can travel almost anywhere in the world today.

You can’t go to Cuba, to South Vietnam, South Korea and perhaps one or two other places.

But there’s no effort to forbid people to live — to leave such as was involved in Kent and Dulles, always mentioned back in the Magna Carta cited in Kent and Dulles.

And the real difference is that the withholding of passports to travel to Cuba and the consequent prohibition upon travel to that area not only results from the state of our international relations but it implements an international program of isolating Castro’s Cuba, worked out in consultation and cooperation with other American Republic in a joint effort to promote their security and stability and to promote their progress, their democratic progress as open societies as well as our own.

I recognized that the policy of prohibiting restrictions — of restrictions upon travel to particular areas has been the subject of some debate as a matter of policy.

Perhaps, it’s open to reasonable debate even when all the facts are understood as a matter of policy.

But I do submit that it cannot be denied that this restriction is in truth maintained today as a vital part of our foreign policy in a very important area of international relation.

Archibald Cox:

And once it is determined that it is that, then of course the wisdom of the policy is not for the courts.

The relationship between the restriction and the conduct to foreign policy is easily demonstrated.

The restriction is maintained primarily for two reasons.

We’ve mentioned some secondary once in our brief and the primarily too.

First and probably least important, the restriction greatly reduces the risk of incidence in Cuba involving United States citizens.

In the early days of the Castro regime, United States citizens were imprisoned, harassed, even put to death.

Under present conditions, there is scant possibility — well, preventing the recurrence of those incidences through normal diplomatic methods.

Their recurrence, reflecting the inability of the Government to afford such protection to its citizens would very seriously embarrass our government in securing protections for American citizens in other parts of the world where there might be another temptation having seen what happened to twist the lion’s tail.

Even more important, in a time of tension, the recurrence of incidence involving injury to the person or the killing of American citizens without regress or security against repetition could also quickly set in motion a disastrous international chain of events.

Today, our minds are focused on the far – at Southeast Asia but we are to remember that the greatest danger of the nuclear age, perhaps the greatest danger to our security in all our history was precipitated in October 1962 by Castro’s Cuba backed by the Soviet Union.

Second, and many times more important, the refusal of passports valid for Cuba is a vital part of an inter-American program permitting the threat that the Castro regime raises to the security of American Republics and to democratic social and economic progress in the western hemisphere not excluding the United States.

Cuba is attempting to overthrow the existing government by infiltration, violent revolution, subversion and all kinds of other method.

That’s not only the conclusion of the President and the Secretary of the State and of the Congress in this country but it is the conclusion of other American Republics.

Resolution of — Resolution I of the meeting of foreign ministers in (Inaudible) declared, the ministers have been able to verify that the subversive offensive of communist governments, their agents and the organizations which they control has increased in intensity.

The purpose of this offense — of this offensive is the destruction of democratic institutions and the establishment of totalitarian dictatorship at the subverts — of continental powers.

To cite just a single example, a special organization of American States Investigating Committee, found that the shipment of arms in November 1963 to Venezuela was one by which Cuba openly intended to subvert Venezuelan institutions and to overthrow the democratic government of Venezuela through terrorism, sabotage, assault and guerilla warfare, I’m quoting from the finding of that committee.

The response of the United States and of the other American Republic has been to isolate Cuba and thus weaken both its will and capacity to promote subversion.

Early in October 1962, the ministers of foreign affairs of the American Republics, requested the counsel of the O.A.S. to make an urgent study of the transfer of funds in American Republics for subversive purposes of the flow of subversive propaganda and the utilization of Cuba as a base for training in subversive techniques.

After that study, a special committee noted the important part to travel plane in efforts of revolutionary subversion and recommended the control of travel to Cuba.

The procedures it said, should include measures “to prohibit trips to Cuba as a general rule” and to limit the use of passports or other travel documents by means of an inscription, stating that they are not valid for travel to Cuba and to penalize as a violation of law any trip not authorized by the terms of the documents themselves.

I suggest that it is both accurate and entirely fair to characterize this suit as one to block the Government of the United States from carrying out its part in those international recommendations.

What we have done reads almost exactly upon the recommendations that I read.

We’ve told the story of other similar inter-American resolutions in our brief.

There’s no need for me to repeat them here.

I would merely emphasize once again that these resolutions are now maintained as the result of international cooperation with other nations in the western hemisphere.

The importance of the measures in restricting Castro’s efforts of subversion, in maintaining the stability and security and the opportunities for progress as open societies of the other American Republic are plain enough.

In the first part, in its place, the — this kind of cutting off of passports for a particular country, apply strong diplomatic pressure.

I shall point out later the number of instances in which we have used and successfully used it as a diplomatic weapon.

Second, they are the principle means for preventing the subversion that I mentioned.

Third, they furnish an important part in cutting off communication in the transfer of funds between people in Cuba and people in the other American Republic, making it much harder for men to go to Cuba for the purposes of indoctrination and training in subversive technique and then to go back to another country for the purposes of steering up revolution.

Archibald Cox:

And finally, I would point out that they are a component part of the broader policy of economic isolation for of course travel to Cuba would mean the expenditure of funds there and that would furnish Cuba with foreign exchange which would be quite important to it.

Now it’ll be said that these arguments hardly apply to United States citizens.

Whether that be true or not, I’m advised by the Secretary of State that if the United States cease to participate in the collective effort to limit travel to Cuba, other American Republics could hardly be expected to apply the same measures to their citizens.

Arthur J. Goldberg:

Of course the United States would pass the law.

Archibald Cox:

Oh yes, yes.

What would happen in the interim, I don’t know.

Arthur J. Goldberg:

(Inaudible) Mr. Solicitor General, your argument in this (Inaudible).

Archibald Cox:

Well, my argument at this point is directed to emphasizing that this is through – an important part, terribly important part of the foreign policy of United States.

That seems to me to be the essential background against which one must decide whether this is within the President and the Secretary of State’s authority and whether it is constitutional.

And I intend to deal expressly with those.

I know — thought of simply saying this, important we must win.

But I think to understand the character of the thing we are dealing with is terribly important in determining what power the Executive has and of course, it’s also important on the constitutional issue.

Now your — Your Honors, of course are right that there are other ways of acquiring — of achieving this and I suppose it wouldn’t be the end of the world.

Also, there would be a period of confusion and delay if it were held that we don’t have the power under the present statute.

But, I shall argue that because of the characters of this thing, we don’t need any statute as well as our view that under the Passport Act of 1926, we do have the power.

But I’m coming on to those points.

But here, all I wanted to emphasize and perhaps I’ve said it enough, is that, if the United States to withdraw a key pin of supporting a structure of international cooperation would be withdrawn and there would be a very great likelihood that that structure built up and maintained in consultation with other American Republics would come tumbling down.

Now I come to the questions of law.

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

I believe that a number of them have and I have asked for example, for a list which has just been handed to me of the countries that do impose area restrictions that are western nations contrary to Mr. Boudin’s information.

The State Department tells me that Australia, Germany, Italy, Spain, Japan and the Philippines all have such authority.

I note, they say, such authority — oh, but do not use them.

No, wait a minute.

Excuse me.

Those have the authority and do use them.

The ones that have the authority and do not use it include France, the United Kingdom and Belgium but the first group I was — think too conscientiously here —

Potter Stewart:

How about the other American nations.

Do you know anything about?

Archibald Cox:

I’ll add to Your Honor in just a moment.

I don’t —

Potter Stewart:

Alright.

Archibald Cox:

— I expect to know in a very few second.

Potter Stewart:

Because it’s the — it’s to that (Voice Overlap) —

Archibald Cox:

I was under the —

Potter Stewart:

— cooperation was built with those (Voice Overlap) —

Archibald Cox:

— impression that they had acted on the basis of the recommendations.

Potter Stewart:

What you’re now emphasizing is cooperation with those nations as I understand it (Voice Overlap) —

Archibald Cox:

Yes, I understand that they have such measures.

Indeed, a letter from the Secretary of State which I was virtually quoting in that passage because I didn’t want to overstate it.

It says, that they could not be expected to maintain them —

Potter Stewart:

Right.

Archibald Cox:

— would certainly implies (Voice Overlap) —

Potter Stewart:

So that was implicit in your whole argument as I understood it.

Archibald Cox:

Yes.

I am told that some countries have taken such steps that many have acted that the response is still imprudent that it is not — I could not give the impression that everybody had done this.

(Inaudible)

Archibald Cox:

If you wish we’ll — well, I suppose I send a letter of it which gave accurate information on this, because anything I should say now would be (Inaudible).

The questions here simply stated, whether the President and the Secretary of State are authorized to enter into this kind of common effort with our neighbors, and if so, whether it invades any of the appellant’s constitutional rights.

Our argument that the Secretary has been duly authorized to restrict travel to Cuba in implementation of foreign policy proceeds in two stages.

Now, I don’t think it’s been quite accurately stated yet.

First, we say that the constitutional power of the President over foreign affairs and the century old passport legislation first — last reenacted as the Passport Act of 1926, gives the Secretary authority to refuse passports for particular countries and to restrict the countries in which an issued passport will be valid.

I’m talking now about discretion in the issuance and terms of passports, not about legal prohibitions upon actual travel which may or may not follow from the refusal or issuance of the passport.

In other words, contrary to the assumption underlying Mr. Boudin’s brief in his entire oral argument, we are not claiming that either the inherent power of the President or the Passport Act of 1926 give authority by themselves to prohibit travel.

That may or may not be the consequence.

It simply don’t say.

I don’t know.

Our point is that whatever the legal consequences of the refusal of a passport or the restriction of the passports may have been, the Secretary of State prior to the enactment of the Immigration and Nationality Act of 1952 had and therefore has today ample authority to impose area restrictions upon the issuance of passports themselves.

Second, we say that Section 215 (b) of the Immigration and Nationality Act of 1952 following earlier legislation accepted the power of the Secretary over passports as a predicate and therefore ratified and confirmed.

And the new law then attached to the Secretary’s withholding or restriction of a passport pursuant to his existing authority a new statutory prohibition upon the actual travel.

And so, it is not a matter of picking a little piece here and picking a little piece there and saying that didn’t give the Secretary or the President power.

Archibald Cox:

This is a single structure where there’s much unity and coherence as a painting.

I try to develop these two points separately.

Together, we think they clearly just sustain the present restrictions.

The power of the Secretary to issue or restrict passports or to restrict the areas for which passports will be valid as an adjunct to foreign policy, rest we think upon the inherent powers of the Executive over the conduct of international relations and upon the Passport Act of 1926.

It’s the Executive after all who must safeguard the interests of those who travel under passports and perhaps they answer to other countries for the conduct of those who go there.

In International Law and Diplomacy, the suspension of travel to a particular foreign country is an established instrument of our policy.

It’s the Executive who must determine when to apply this pressure.

It’s the Executive who must determine when the state of International Relations is so tense in relation to a particular area that the danger of incidence might fair — seriously affect our national interest, not even the issue of war or peace.

It’s the Executive who must determine whether to enter into the kind of arrangements with other foreign nations that I’ve described.

Were it necessary therefore, we would argue that the issuance, refusal or restriction of passports according to the necessities of international relation but not for other reasons, and that’s in Kent and Dulles, the other reasons, is an integral part of the Executive’s constitutional responsibility for foreign affairs.

Byron R. White:

Are saying the (Inaudible) to travel?

Archibald Cox:

To travel, we’ve got an exact statute, the Act of 1952.

Byron R. White:

Yes, but without it?

Archibald Cox:

I don’t go beyond what we have here.

I don’t want — wish to — I don’t have to argue —

Byron R. White:

But why (Voice Overlap) —

Archibald Cox:

— that the Executive has power to bar the travel.

Byron R. White:

Well, prior to 1952 though, you say the Secretary not only exercise the passport rights which restrict to travel?

Archibald Cox:

I say that the Secretary —

Byron R. White:

That was the only purpose of manipulating the passport.

Archibald Cox:

From 1941 until 19 — until date, there has been a consequent restriction upon travel.

There was a consequent restriction upon travel during World War I.

Byron R. White:

Where did that come from?

I mean, how — we got it from —

Archibald Cox:

It came from a statute enacted in 1941 in the very same words as Section 215 (b) of the Immigration Nationality Act of 1952.

And that came back from the legislation enacted during World War I.

Byron R. White:

(Inaudible)

Archibald Cox:

Yes.

Byron R. White:

And was that 9 — and that’s a 1918 Law (Inaudible)?

Archibald Cox:

No, the 1918 Law was ineffective with determination of hostility.

Archibald Cox:

There was a period as I would — I’m getting ahead of myself — there was a period during the 1930s when the Secretary refused to issue passports to certain areas.

Well, one effect undoubtedly of his doing of Mr. Justice White, whether it was a legal restriction or not, would be to induce most American citizens not to go to those areas, which in itself would be a very important thing.

Whether there was a legal restriction or not, I simply don’t have to argue here.

It would obviously be a harder case than this one.

But I again shrink from conceding something that might be important someday in the future.

Byron R. White:

So you don’t want — you make no argument that without the purpose of statutes to (Inaudible)?

Archibald Cox:

No.

The essence of my argument as I tried to state a moment ago is first, that speaking in terms of the issuance of passports and the refusal to issue passports for particular countries or restricting countries which they are good that that power has been exercised almost without interruption under the inherent powers of the Executive and the Passport Legislation of 1926, and I say that gives power to withhold the passport from Cuba — or for travel to Cuba.

Then the question becomes, well, what happens if the man goes to Cuba without a passport?

I say we don’t need to inquire what would happen in the absence of the Act of 1952 because that statute did two things.

It came along.

It was enacted in the light of this prior record.

It assumes that somebody has the power to grant to withhold a passport, and it said if you go without a valid passport, then you’re guilty of a crime.

Arthur J. Goldberg:

(Inaudible) to Cuba?

Archibald Cox:

Well, there would be some ways one could, yes.

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

Well, or one could leave with a passport for England and then go to Cuba.

Whether one be — the — I believe that most of the transportation companies as alleged in the complaint, would make it impossible for you to go straight to Cuba, yes.

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

It —

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

Well, I — in this case we have the statute and I acknowledge, of course.

I’m not suggesting the appellant can get to Cuba.

We’ll keep him from getting there if we can I’m quite sure.

I am suggesting that there is no need to inquire into what would be the effect of the refusal of a passport in the absence of legislation that has been on the books for more than 20 years because it seems to me that that’s an entirely different case, one that I don’t need to argue.

I was about to develop at a little more length our thoughts with respect to passport legislation, which dates back to 1856 and was last reenacted in 1926 the words of the Act of 1856 where the Secretary of State shall be authorized to grant and issue passport.

The present version enacted in 1926 says that he may grant and issue passports.

We don’t contend that the words convey unlimited discretion.

Obviously, they don’t under Kent and Dulles.

But neither do they command the issuance of passports under any and all circumstances.

Archibald Cox:

Indeed, if you look at this case the other way around as I would suppose when we normally look at a lawsuit and say where does the appellant get the right to a passport, which is what he’s trying to get.

He would have a very hard time maintaining that the words “may grant an issue of passports” gave him a legal right to have a passport issued.

The words are those that certainly, read in their context and in the area of foreign policy in which the President and Secretary are operating, convey a discretion to make decisions according to the needs of foreign policy.

That’s their natural meaning, the meaning that make sense.

Furthermore, remember that the statute —

Potter Stewart:

Of course his answer to your question, if you turn the question around your way would be — well, I guess it’d be, I have a right to travel, international travel absent some very overwriting consideration and you might disagree as to what the — how the kind of consideration that might be.

And in view of the law that makes it illegal to travel internationally without a passport, that gives me a right to have a passport.

Now, wouldn’t that be his answer?

Archibald Cox:

Well, I would think then an answer to that and I don’t want to go too far on this because I’m willing to meet on his own ground.

I was just trying to dramatize this matter, whether it’s discretionary word.

It would seem to me that a technical answer to that might be Justice Stewart, will then issue a challenge from the statute, but he still has no right given to him to get a passport.

Potter Stewart:

To go to Cuba?

Archibald Cox:

If — that the passport means something more than simply an opportunity to get out of the United States.

But as I said, we’ve taken the cases that was presented and it was simply for the light it threw on the meaning of these words.

Now, another thing that helps throw light on the meaning of the words is that the 1926 Act goes on to say that the Secretary shall exercise the delegated power under such rules as the President shall designate and prescribe.

I suggest that whatever was the case in 1856, by 1956 you didn’t put on the President the duty to prescribe rules unless you were really dealing with something of substantial importance and that that reference is another straw pointing to our construction of the Act of 1926.

That would seem to us therefore that taking the 1926 Act that it — like the Constitution, thus give this power to issue or not issue, to restrict or not restrict passports in the light of the necessities of international relation.

But I would emphasize that it’s not necessary and I think it’s unrealistic for us to pitch our case upon either source of authority standing alone even though either standing alone might be sufficient.

The law just isn’t so artificial as to require the Executive to say, “Well, I stand on this ground” or “I stand on this ground” or “I assign 31% of my case over here and 69% of my case to the other ground.”

These are things that have grown together for more than a century.

The inherent executive power and the power conferred by the statute of course when the Executive act in — simply acting (Inaudible) — but not confined to one or the other.

And we do think that a sort of the symbiotic relationship has existed and that that has been confirmed and strengthened by executive practice, congressional acquiescence and occasional reenactment of the statute.

The first statute prohibiting travel enacted during the latter part of the war of 1812 assumed that somebody had the power to grant or withhold passports.

It was treated as an instance of executive power because there was no legislation given.

During the Civil War, the Secretary of State Seward restricted travel to Europe.

In January 1915, the State Department stopped issuing passports for use in Belgium because of the famine there.

I point out that that was an area restriction.

On January 24, 1917, the President issued new rules under this legislation which very greatly restricted the issuance of passport for travel abroad.

In 1919, passports were — for unnecessary travel even in the territory of our former allies were rarely issued because of the conditions existing there.

No passports were issued for travel in Germany or Austria until 1922 in July.

Archibald Cox:

No passports for Russia until September 1923.

I think it’s fair to characterize those as area restrictions.

During the 1930s, area restrictions on the passports were imposed.

Passports were not issued for travel to Ethiopia in 1935 to 1936.

They were not issued for travel to Spain following the outbreak of the Spanish Civil War, or travel to China after August 1937.

In September 1939, it was a very general tightening up of the issuance of passports for travel to Europe, of course because of the outbreak of war there and in a sense, while that was not a prohibition.

It too was an area restriction because there was no tightening up to passports for Australia and apparently no requirement of passports in countries in the western hemisphere.

That tightening up occurred shortly after the President has issued on March 31, 1938, a new Executive Order under the Passport Act of 1926, and I think its terms are important.

One section provided 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 country.

I’d like to pause for just a moment at this stage in the historical story to note how matters stood in June 1941 because that was just before the enactment of the new legislation.

The Passport Act of 1926 upon its phase appeared to confer a broad range of discretion.

For 80 years, the Executive branch acting either under that legislation or its inherent power over foreign policy had imposed area restriction when the occasion seemed to warrant.

The power was specifically asserted in the Executive Order of 1978, explicitly asserted in that executive order that I just read.

So far, it appears no one challenged the authority of the Executive to take this action.

The Congress not only acquiesced but in 1926 before some of the incidents I’ve mentioned and after others, it reenacted the General Passport Legislation, uttering no criticism of what had been done.

Even without the reenactment, it would seem that the consistent administrative interpretation by those charged with executing the statute would be entitled to the very greatest way.

The appellant says that well, maybe there was discretion to impose area restrictions upon the issuance of the passbook, but even though you couldn’t get a passport, you could during the 1930s at least to travel abroad.

As I said a moment ago, we’re not concerned at this point in our argument with the legal consequences of the refusal to passport.

All I’m concerned with showing at this point is that whatever the legal consequences may have been, the Secretary under the President had reargued and certainly had exercised repeatedly the power to impose area restriction.

But he’s done that right up to June 1941, some were even enforced, and there was outstanding at that time an executive order issued only in March 1938 that I just quoted, claiming the authority and delegating to the Secretary the authority to impose area restrictions.

As I say, it was in 1941 that the Congress enacted an act reviving the statutory restrictions imposed on travel without a passport that it had been in existence during World War I.

They were revived for such time as the United States should be at war or for the duration of the emergency that President Roosevelt did proclaimed — I think it was in May 1941.

One of the restrictions that was revived from the old 1917 or 1918 legislation was the direct precursor, even in words, that the provisions later reenacted as Section 215 (b) of the Immigration and Nationality Act of 1952.

The prohibition as it read in each instance as revived in 1941 interim, it shall, except as otherwise provided by the President subject to such limitations and exceptions, the President may authorize and proscribe, be unlawful for any citizen of the United States to depart from or enter, or to attempt to depart from or enter, the United States unless he bears a valid passbook.

Hugo L. Black:

Which statute?

Archibald Cox:

This was the — this is the words both of the 1952 statute and of a 1917 or 1918 statute that was revived in 1941, so that what you have are these words in effect from June of 1941 to the present time, and they’re the same words in each instant.

Hugo L. Black:

That was in to the present time?

Archibald Cox:

No, I said the restrictions Your Honor, had been in effect from then to the present time.

There was no mentioned of when they should be in effect except that there was required to be a proclamation by the President or a state of war.

Hugo L. Black:

Of an emergency?

Archibald Cox:

A proclamation by the President of an emergency, yes.

Hugo L. Black:

That’s in 1941?

Archibald Cox:

That was in 1941.

Hugo L. Black:

Is that emergency supposed to be still in effect?

Archibald Cox:

No.

Under the 1952 statute, a new proclamation was issued declaring an emergency and that proclamation is in effect today.

Hugo L. Black:

It’s not based in on war, is it?

Archibald Cox:

No sir —

Hugo L. Black:

Based on (Voice Overlap) —

Archibald Cox:

— not at all.

Based on the proclamation issued by the President — by President Truman under the 1952 statute.

Byron R. White:

Well what (Inaudible) was that confirmation connected to the Korean War?

Archibald Cox:

Yes, and it’s remained in effect.

So our purpose is —

Arthur J. Goldberg:

General, if I may interrupt you at this point.

Doesn’t the enactment of that statute, 1952, drastically changed the nature of the passport as you have described?

In one instance, you might argue that the passport is a credential issued by the Secretary of State which doesn’t inhibit your right to travel but indicates that the Government isn’t ready to vouch for you in some areas, extend you diplomatic protection etcetera.

When you get that other statute operating in conjunction with the passport statute, doesn’t the situation entirely change?

Archibald Cox:

It changes, yes.

I would — if I may answer, Your Honor, I would rather address myself to that question because you might equally ask it — about the 1941 statute.

The same question is pertinent but I’d like to keep the chronology if I can because I think it has some significance.

I think the answer to You Honor’s question is this.

First, that the statute from our point of view had a twofold significance.

First, it did impose a new statutory restriction upon travel and therefore in a sense, as Your Honor said, changes the consequences of the withholding of passbook.

But second, despite the change in consequences, I submit Your Honor that the 1941 legislation had the effect to ratify in confirming the power of the President and the Secretary to impose area restrictions, which had been openly asserted and exercised through the 1930s and was unequivocally asserted in the Executive order which had been issued in 1938.

Now, the reason I say that with some confidence is this.

Congress was legislating in the area of travel.

It obviously by its silence acquiesced in what the President and Secretary of State had been doing.

It didn’t say, now we’ve got some new consequences to stop it.

On the contrary, what did it do?

Archibald Cox:

The new provisions obviously took as their predicate that somebody had the power to grant or withhold passports.

Unless the authority existed somewhat, the no provision was either inoperative or was of total prohibition upon power.

Well, now what authority can the Congress has been thinking of?

I suspect that it can’t have been anything other than the authority that existed either by virtue of the inherent power or the Act of 1923 and it had been exercised right up to then in the past.

That must have been what Congress was referring to.

Arthur J. Goldberg:

I suppose the different (Inaudible)

Archibald Cox:

Yes, and that may call upon the President and the Secretary of State to judge the wisdom of their actions as a policy in a somewhat more serious way.

But it still seems to me that if this statute refers back to something, it must refer back to the power that they’ve been exercising all along.

What else is it?

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

If Congress — the constitutional question of course is different.

The constitutional issue of course is different.

And I don’t —

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

Oh, I wouldn’t question for a moment Your Honor that the constitutional question was different.

But what I — and I’m not — I hope I will have time to direct myself to that.

What I am insisting is that this must have referred back to the power that they had, whatever the constitutional consequences might be.

Arthur J. Goldberg:

That Congress is different?

Archibald Cox:

Yes.

Now, I just add one more word.

Our case doesn’t stop there.

During the period from 1941 to 1952, the Secretary of State and the President repeatedly imposed area restrictions.

We’ve collected them in our brief.

I don’t think that it is fair at all to say that when a restriction was imposed on travel to certain iron curtain countries since 1952 that the Department of State said that this was not really a restriction — that the withholding of passports was not really a restriction on travel.

What it said was that you can’t travel unless the passport is specifically endorsed under an authority of the Secretary of State as being valid for such a travel.

And then it went on and said this procedure of forbidding travel without a special endorsement and of giving special endorsements in the appropriate case in no way forbids travel to the area.

Well that’s true, and they went on to indicate that they would issue some passbook, which I think was all they were characterizing.

Now, the point I was trying to make Justice Goldberg, is that when the statute was reenacted in 1952, you did have a series of instances in which the President and Secretary of State had continued to prohibit travel even though the legal consequence was to make leaving the country an offense.

Now, if I might take just a moment to address myself to the constitutional question and to leave the rest to our brief.

In the thrust of the appellant’s argument, and that’s the only one that I have time to deal with, the strongest argument is that this restriction violates the Fifth Amendment because he says freedom to travel is part of the liberty secured by the Fifth Amendment.

Archibald Cox:

We agree of course that freedom to travel is an aspect of the liberty circumscribed as of the liberty guaranteed by the Fifth Amendment and that it may not be curtailed without due process of law.

Even if we didn’t subscribe to that wholeheartedly, we’d be compelled by Your Honor’s decision in Aptheker, but we do subscribe to it wholeheartedly.

But like other freedoms, the freedoms to own or use property and the freedom to choose where you put your house on your lot, to choose what kind of shaded trees or decorative trees you will have, like the freedom to engage in a profession or the freedom to engage in a trade or business, the freedom to choose the (Inaudible) — one’s patrons or employees.

This freedom we submit is subject to reasonable restriction when required by pressing national interest.

No one would suggest, I take it, that one has a right to travel to an area ravaged by fire or disease or flood.

I think of the area on the Pacific Coast ravaged by floods just before I was first preparing this argument.

And that it would be said that a restriction on travel to those areas was a violation of the Fifth Amendment.

Now here, the challenge to restriction covers a very narrow area, Cuba.

Even when it’s coupled with the other restrictions the State Department has, is not an issue here.

It still applies only to a narrow area.

It’s applied even handedly.

It involves no inquiry in the beliefs or associations or even activities.

It arouses no — may I have one or two words more?

Earl Warren:

Yes.

Take a few moments more in the same amount of time Mr. —

Archibald Cox:

It is made — it involves no danger of hostile or invidious discrimination.

It’s maintained, it’s been worked out and it’s being maintained and implemented in cooperation with other American republic as an essential measure for reducing the danger of subversive attack by the Castro regime upon the Latin American countries who are our friends and neighbors, and perhaps ultimately upon the United States.

That the urgency of that kind of cooperation and prophylactic measure short of war is evidenced by the fact that I mentioned earlier, that the Untied States from the Castro regime backed by Soviet Russia have already stood at least once in a frightening confrontation.

In the end inevitably, since freedom to travel is not absolute, the whole question is where the balance lies.

Now, I submit that in this instance, great weight must be given to the determinations of those who are charged with responsibility of — for international relations.

We’ve cited other cases on our brief but I don’t want to delay to argue the point at any length, but I do submit this that a nation which can conscript its citizens for services of the Armed Forces for military training and service in times like these that can compel a conscript to travel to South Vietnam or other places far from home in a time of national emergency cannot be powerless during that same period to forbid citizens to travel in particular reasons, for like reasons essential to the national safety and in times of national emergency.

Hugo L. Black:

May I ask you —

Archibald Cox:

Thank you.

Hugo L. Black:

— just one question?

Do you find the authority that the Secretary of State to issue the — as far as Congress is concerned, issues regulations either under the Act of 1926 or under the Act of 1952 or —

Archibald Cox:

I find it —

Hugo L. Black:

— some other statutes?

Archibald Cox:

I find the authority to refuse to issue passports good for Cuba under two sources which have historically evolved together, the inherent powers of the Executive over the conduct to better national relations and the Act of 1926.

It said, the importance of the Act of 1952 is that it took that authority as its predicate and by not objecting in a sense ratified it and that then what it does is say if you don’t have a passport, you may not leave the United States.

So, that I think these things are built on each other like bricks that you can’t say — we don’t say the whole case is in any one of them.

Archibald Cox:

We say that the discretion comes from the constitutional power of the 1926 statute that the prohibition upon to travel a criminal offense comes from the 1952 statute.

But we say that this has grown over the years together and that Congress, by enacting these successive statutes has ratified and approved the conduct of the Executive in question.

Hugo L. Black:

But so far as the statute is concerned, and that’s the one I’m asking (Voice Overlap) —

Archibald Cox:

I said the authority over the passport since 1926, the prohibition on the travel which follows from the denial of a passport is 1952, and I need both of them to win this case.

Earl Warren:

Mr. Boudin.

Leonard B. Boudin:

Mr. Chief Justice, may it please the Court.

Turning first and briefly to the question of the jurisdiction of the Court, it seemed to us that this is precisely the kind of case where 2282 is applicable and that the suggestion made that there is a pleader’s choice which is improper.

It’s refuted by what this Court has said in the Mendoza-Martinez case where precisely, the pleader was able to determine whether it should be a three-judge court as in Cort — Rusk against Cort, or a single judge court, and that the substantiality of our attack on the delegation of authority is manifested in what Judge Smith said in the court below, from what this Court said on the subject of standards and vagueness in Kent, from the nature and the liberty involved, and from the fact that we have no standards in this case not merely inadequate standards.

Because the Government essentially relies upon the Act of 1926, which is implemented by Executive Order 7856 which says the Secretary shall have discretion to deny passports, to revoke them, to withdraw them, to limit them, but no statement in that Executive Order or Proclamation — Executive Order as to what the circumstances are under which this now apparently unlimited discretions to be exercised.

And as one listens to the Solicitor General’s most able argument and reads this most able brief, brilliant but unrealistic, the — one realizes that the Government is here admitting that there was an inherent power exercised to deny passports but not to deny travel.

And it relies upon that in conjunction with two statutes which no one here has suggested in terms of analysis of language or legislative history were intended by the Congress, not manipulated in terms of the handling of a legal argument but intended by Congress to give this power to prohibit travel.

And I am sympathetic with the approach used, the reference of the Solicitor General to a discretion given by the use of the word “may”, or at least I would have been sympathetic.

You se of the word “may” in the Act of 1926 and to the discussion given to the Secretary of State, but I am foreclosed and I thought he was before I read the brief by the fact that this Court in Kent had the same Act of 1926, the same use of the word “may” and did not regard that or the Executive Order 7856 as giving the kind of uncontrolled discretion which its Secretary claims.

Now, the — it must be recognized that the discussion of an open society is very important to all of us, but I wonder whether the restrictions that I hear imposed are not in the light of what the Court has said in Kent and in Aptheker the very antithesis of an open society.

And the fact that in the present case, this restriction is limited to travel with its effect upon what is — knowing what is happening elsewhere means that logically speaking, if a government is right, there could be other kinds of restrictions upon freedom of speech and association because we have entered into an agreement with our neighbors below to do the same and we don’t want the fault in our part of the agreement.

Why if the Government is right?Can the Government not prohibit public meetings on the subject of Cuba?

There are logical reasons, provided that we have entered into an agreement with the foreign ministers of Latin American countries that they should do the same because we’ll never be able to persuade them to do it, unless they do it as a matter of natural art, nothing terribly democratic if we don’t do it.

Same with public meetings, same with writing, all of these things which are more clearly things which have an effect on freedom of speech, but it’s still part of the same genre.

It can be excused by the very practical argument made by the Solicitor General in this case.

Now, I think this business of using an American as an instrument, a pawn, has been said in congressional committee hearings and now analyzing the Government’s argument here, a pawn to persuade other countries to restrict the rights of their citizens, which may be permissible under their constitution or statues, although I haven’t seen that, is simply an unrealistic thing and unjustifiable thing and violates the First Amendment.

The entire argument made by the Government with respect to a whole history of restrictions will have to be analyzed by the Court as it reads the briefs, but I can assure the Court that the examples of restrictions if they exist at all and if they aren’t statutory ones, restrictions which are not prohibitions upon travel.

The whole period of 1930s was a period in which there was no restriction upon travel to another country.

We think that it is only by overruling what the Court said in Kent against Dulles that the Court can agree that the Act of 18 — or the Act of 1926 must now be read against discretion to the Secretary.

It is only by overruling what the Court said there that we can bring in somehow the Act of 1952 to rationalize the Secretary’s action.

Because if the Court will reread the Government’s brief in Kent against Grail (ph), it will see exactly the same kind of argument, more sophisticated now because we all learned after five or six years, but exactly the same kind of argument and the impact upon foreign affairs because in Kent against Grail (ph), the argument made by the Government was if you let these communists travel abroad, they will get into trouble and implicate the United States, and this will affect our foreign relations.

It was worse there as a matter of fact because it also involved espionage and other crimes.

But the foreign relation’s argument now minimized by the Government as it was in Kent was very vital to the Government’s position in Kent.

And we must remember in the present case, in answer to the inquiry by Mr. Justice Black as to the emergency that we have lived in the United States since 1941 under a declaration of one emergency or another which has made a passport a legal requirement for exodus from the United States.

At the 1941 statute was passed in an amended form at the insistence of Senator Taft who realized the danger of changing the 1918 Statute which dealt with war alone to war or national emergency, and to insist it on the floor of Congress supported by Senator La Follette and others, it was successful in having the Statute of 1941 read, war or the national emergency existing declared by the President in May of 1941, and that was a war, and that is a situation which much greater rights could be attributed to the Government.

Then in 1952, a period with which we’re all acquainted, we found ourselves with Senator Taft and other people who are no longer here and the word “National Emergency of May 1941” became any national emergency.

Leonard B. Boudin:

Well, what national emergency are we living in today that Congress was interested at all?

Today, we are living — this (Inaudible) — the statute is implemented by a national emergency declared by the President that exists with respect to the Korean War in December 1950 and was implemented in January 1953 by Proclamation 3004.

The President has not placed any limitation upon travel to Cuba any more than the Congress has.

There is no executive order, no proclamation that says that the Korean War which I thought had passed.

The Korean War is a justification for the ban on travel to Cuba for foreign relations reason or otherwise.

The President made a proclamation in January of 1953 with respect to the Korean War.

And today, because no one has wiped out the proclamation, the Secretary himself was the one through an Undersecretary of State who in January in 1961 said, “This Korean War emergency, which still prevailed, is a justification for preventing travel to Cuba.”

Now, I submit that is quite a strain on an emergency declaration in the Far East to have it apply here for travel to Cuba upon a cabinet official’s determination.

Well, I have the highest regard for cabinet official’s determination.

I do not think that they should be permitted to restrain and impair the right of an American citizen to travel particularly where that right is so intertwined with what may be the determining factors in war and peace in this world, so in foreign relations, the ability of the citizen to know something for himself and not depend upon government sources or upon the press.

I thank (Voice Overlap) —

Hugo L. Black:

There’s no objection to the 1926 Statute —

Leonard B. Boudin:

I beg your pardon, Your Honor?

Hugo L. Black:

Why do you say that the 1926 Statute does not authorize what has been done?

Leonard B. Boudin:

Because in 1926 Statute merely says that the Secretary of State may issue passports subject to rules and regulations of the President and no other person may do so.

And it does not say that the Secretary of State can decide either in connection with the issuance of passports or otherwise that an American citizen may not travel to a particular country.

In 1926 when that statute —

Hugo L. Black:

What do you say about the latter part?

Does it have any relation to it?

Leonard B. Boudin:

And no other person —

Hugo L. Black:

Under such rules that the President shall designate him to start.

Leonard B. Boudin:

And I think that has a relationship only in this sense that if you can construe that statute all to relate to travel bans, which I do not, then it would mean that the President should determine when a travel ban is appropriate and not the Secretary of State.

Hugo L. Black:

You’re not objecting to that on the ground that we put — puts out from the standard.

Leonard B. Boudin:

Oh, I have.

Oh, yes.

I objected to the Act of 1926 as completely invalid because it has not standards.

I don’t want to have the Court misunderstand me on that.

I have challenged that Act in the complaint and in my brief and in the argument on the ground that it has no standings.

And I thought that that was a reason that drew this Court’s opinion in Kent where it said in construing the Act of 1926, we have to bear in mind that where the curtailment of a citizen’s liberties are involved, the absence of standards citing Panama Refining, etcetera, is an important factor.

And the Court then came to the conclusion that the Act of 1926, the Act relied upon by the Government here did not authorize despite the use of the word “may” the imposition of restrictions upon travel and despite the fact that the Executive order which implemented the Act of 1926 gave discretion to the Secretary.

Leonard B. Boudin:

This Court disregarded for constitutional reasons the discretion given to the Secretary by the President in Executive Order 7856 of 1938, and we suggest that there is no reason at all that’s been offered here that come to a different conclusion.

And that as a matter of fact, the wealth of argument made by the Government in its citations in Kent was far more persuasive, although we did not think it was persuasive of course, but far more persuasive than the arguments made here that we must screen our American citizens from other countries.

Thank you, Your Honor.