Zemel v. Rusk

LOCATION: Louisiana General Assembly

DECIDED BY: Warren Court (1962-1965)

CITATION: 381 US 1 (1965)
ARGUED: Mar 01, 1965
DECIDED: May 03, 1965

Facts of the case


Media for Zemel v. Rusk

Audio Transcription for Oral Argument - March 01, 1965 in 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.