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Zemel v. Rusk


The district court upheld, and the Supreme Court later declined to rehear, a lower court order that declared it is within the jurisdiction of the secretary of state and the attorney general to impose restrictions on travel that are declared by the president of the United States. The Passport Act of 1926 and Immigration and Nationality Act of 1952 were upheld as constitutional.

The plaintiff, a citizen of the United States residing within the judicial district of Connecticut, brought action against U.S. Secretary of State Dean Rusk and U.S. Attorney General Robert F. Kennedy for a declaratory judgment to enjoin the enforcement and execution of two acts of Congress, namely, the Passport Act of 1926 and the Immigration and Nationality Act of 1952, both of which the plaintiff claimed were repugnant to the Constitution. Jurisdiction of the Court was invoked and a three-judge court was convened to hear the constitutional questions in issue.

On 31 March 1962, while the plaintiff was the holder of a valid U.S. passport of standard form and duration, he applied by letter to the director of the Passport Office at Washington, D.C. for permission to have his passport validated for travel to Cuba as a tourist. The Passport Office denied him the permission requested, with the explanation that only persons whose travel might be in the best interests of the United States, such as news reporters and businesspeople with previously established interests, could be eligible; and specifically that tourist travel was excluded. Thereafter, on 1 May 1962, the petitioner requested a hearing on his application without reciting any new reason, except that he felt justified in wanting to make the trip. He was sent a copy of the current administrative procedures of the Passport Office and was advised that in those instances where foreign travel was restricted and generally applicable to everyone, no administrative procedures for review or appeal were provided. Repeated attempts by the petitioner and his attorney failed to secure him permission to travel to Cuba.

It was the plaintiff's contention that the Passport Act of 1926 did not authorize the action taken, and that the acts were unconstitutional, because they interfered with the rights of a citizen: the right to travel under the Fifth, Ninth and Tenth Amendments, the right to the freedom of speech, belief and association under the First Amendment. Moreover, it was an arbitrary and unreasonable denial of due process under the Fifth Amendment. The plaintiff also argued that it was an invalid delegation of legislative power because it did not contain adequate standards and safeguards.

The plaintiff asked for a declaratory judgment and an injunction decreeing that the Immigration and Nationality Act of 1953 and the Passport Act of 1926 were unconstitutional, and that the secretary of state's regulations restricting travel to Cuba were thus without any authority in law.

The court maintained that this was truly a substantial constitutional challenge to the sovereignty of the nation. The plaintiff's effort to enjoin the secretary of state from enforcing the statutory law and its attendant regulations was not merely the simple and seemingly harmless application of a lone tourist. It was in fact a pilot case precedent which, if sustained, would open up an immediate thoroughfare for unrestricted travel between the United States and Cuba. Such an act of judicial audacity would not only defeat the clear intention of Congress as established by law, but also strike down the declared foreign policy of the executive branch of the national government.

The issue in this case was whether or not geographical passport restrictions imposed by the secretary of state with respect to travel to Cuba were authorized by congressional act and if so, whether those statutes which purport to grant such authority were repugnant to constitutional limitations. It was the court's finding that Congress had granted adequate authority to the executive department to make these regulations, that their application in this instance did not violate due process, and that the statutes which authorized the regulations were valid and constitutional.

Passport control was not designed solely to protect internal security. So many phases of internal security are intertwined with foreign affairs in the administration of passport control that the two become inseparable. It is one where Congress legislates broad laneways of authority to the executive, within which he of she must exercise his or her discretion in effectively administering that authority in a fast changing climate of world affairs. Congress established, by law, the president's right to regulate and control passport visas within broad bounds of executive discretion. There has been no claim of arbitrariness in the administration of these regulations. No passport holder has claimed to have been denied because of personal beliefs, writings, character, race, religion or the like. It does in fact bar the travel of all Americans to a specific geographical area.

In both times of war and upon the declaration by the president of a national emergency, these restrictions on travel departure and entry may be imposed. The time or term of their application is limited until the president or Congress shall otherwise order. All of the conditions established by law for the exercise of the power were therefore fulfilled.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1963 to 1972Zemel v. Rusk - Significance