Kent v. Dulles
Decided on June 16, 1958; 357 US 116


Government cannot deny a passport to a citizen for the reason that applicant might have been a member of the Communist Party because "the right to travel is a part of the 'liberty' of which a citizen cannot be deprived without due process of law under the Fifth Amendment."

 

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Right to travel, due process

B. Legal Question Presented:

Could the Executive's Passport Department defer or refuse the issuance of passports to individuals suspected of being Communists or of traveling abroad to further Communist causes?

II. CASE SUMMARY:

A. Background:

"...This case concerns two applications for passports, denied by the Secretary of State. One was by Rockwell Kent who desired to visit England and attend a meeting of an organization known as the 'World Council of Peace' in Helsinki, Finland. The Director of the Passport Office informed Kent that issuance of a passport was precluded by 51.135 of the Regulations promulgated by the Secretary of State on two grounds: (1) that he was a Communist and (2) that he had had 'a consistent and prolonged adherence to the Communist Party line.'

Kent was also advised of his right to an informal hearing under 51.137 of the Regulations [and of the necessity], before a passport would be issued, to submit an affidavit as to whether he was then or ever had been a Communist. Kent [claimed] 'that the requirement of an affidavit concerning Communist Party membership 'is unlawful and that for that reason and as a matter of conscience,' he would not supply one...[He maintained] that any matters unrelated to the question of his citizenship were irrelevant to the Department's consideration of his application. The Department advised him that no further consideration of his application would be given until he satisfied the requirements of the Regulations. Thereupon Kent sued in the District Court for declaratory relief.

The District Court granted summary judgment for respondent. On appeal the case of Kent was heard with that of Dr. Walter Briehl, a psychiatrist [who refused to submit an affadavit but requested a hearing].

At that hearing Briehl raised three objections: (1) that his 'political affiliations' were irrelevant to his right to a passport; (2) that 'every American citizen has the right to travel regardless of politics'; and (3) that the burden was on the Department to prove illegal activities by Briehl...Briehl filed his complaint in the District Court which held that his case was indistinguishable from Kent's and dismissed the complaint.

The Court of Appeals heard the two cases en banc and affirmed the District Court by a divided vote."

On certiorari, the US Supreme Court reversed.
B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
A brief of amicus curiae urging reversal was filed for the American Civil Liberties Union et al. by Osmond K. Fraenkel and William J. Butler.

Leonard B. Boudin argued the cause for the petitioner. With him on the brief were Victor Rabinowitz and David Rein. Daniel G. Marshall was also on the brief for Briehl, petitioner.

Solicitor General Rankin argued the cause for respondent. With him on the brief were Assistant Attorney General Doub, Samuel D. Slade, and B. Jenkins Middleton


IV. THE SUPREME COURT'S DECISION:

"The Secretary was not authorized to deny the passports for these reasons under the Act of July 3, 1926...or under the Immigration and Nationality Act of 1952...

(a) The right to travel is a part of the 'liberty' of which a citizen cannot be deprived without due process of law under the Fifth Amendment...

(b) The broad power of the Secretary to issue passports, which has long been considered 'discretionary,' has been construed generally to authorize the refusal of a passport only when the applicant (1) is not a citizen or a person owing allegiance to the United States, or (2) was engaging in criminal or unlawful conduct...

(c) This Court hesitates to impute to Congress, when in 1952 it made a passport necessary for foreign travel and left its issuance to the discretion of the Secretary of State, a purpose to give him unbridled discretion to withold a passport from a citizen for any substantive reason he may choose...

(d) If a citizen's liberty to travel is to be regulated, it must be pursuant to the law-making functions of Congress, any delegation of the power must be subject to adequate standards, and such delegated authority will be narrowly construed...


(e) The Act of July 3, 1926, and the Immigration and Nationality Act of 1952 do not delegate to the Secretary authority to withold passports to citizens because of their beliefs or associations, and any Act of Congress purporting to do so would raise grave constitutional questions..."

The US Supreme Court reversed the Court of Appeals for the District of Columbia judgment.
Justice Vote: 5 Pro vs. 4 Con
  • Douglas, W. Pro (Wrote majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Black, H. Pro (Joined majority opinion)
  • Frankfurter, F. Pro (Joined majority opinion)
  • Warren, E. Pro (Joined majority opinion)
  • Clark, T. Con (Wrote dissenting opinion)
  • Burton, H. Con (Joined dissenting opinion)
  • Harlan, J. Con (Joined dissenting opinion)
  • Whittaker, C. Con (Joined dissenting opinion)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as amicus curiae, urged reversal of the judgment of the Court of Appeals for the District of Columbia; the Supreme Court reversed in a 5-4 vote, giving the ACLU an apparent win.