Arthur Goldberg

“ Appellant attacks the limitation imposed upon the validity of his passport as beyond the inherent power of the Executive, unauthorized by Congress, and beyond the constitutional authority of either the Executive or Congress. I agree with the Court that Congress has the constitutional power to impose area restrictions on travel, consistent with constitutional guarantees, and I reject appellant's arguments to the contrary. With all deference, however, I do not agree with the Court's holding that Congress has exercised this power. ”

“ Thus in 1926 freedom of travel was as complete as prior to World War I. In this atmosphere Congress re-enacted, in virtually identical terms, the 1856 statute, the sole purpose of which, as I have already noted, was to centralize passport issuance. Congress in doing so did not indicate the slightest intent or desire to enlarge the authority of the Executive to regulate the issuance of passports. ”

“ The Statute's Inapplicability To The Problem of Area Restrictions.
The Court's interpretation of the 1926 Passport Act not only overlooks the legislative history of the Act and departs from the letter and spirit of this Court's decisions in Kent v. Dulles, supra, and Aptheker v. Secretary of State, supra, but it also implies that Congress resolved, through a sweeping grant of authority, the many substantial problems involved in curtailing a citizen's right to travel because of considerations of national policy. People travel abroad for numerous reasons of varying importance. ”

“ Last year approximately 2,750,000 Americans traveled abroad. More than 1,100,000 passports were issued or renewed, nearly 4,000 of which were obtained by journalists. [1] This phenomenal amount of travel not only demonstrates our curiosity about things foreign, and the increasing importance of, and in the often necessity for, travel, but it also reflects the long history of freedom of movement which Americans have enjoyed. Since the founding of the Republic our Government has encouraged such travel. ”

“ In 1962, however, when appellant requested that his passport be validated so that he might travel to Cuba 'to satisfy my curiosity about the state of affairs in Cuba and to make me a better informed citizen,' his request was denied upon the basis of Department of State regulations, issued under the alleged authority of an Executive Order, restricting travel to Cuba. ”

“ Until 50 years ago peacetime limitations upon the right of a citizen to travel were virtually unknown, see Chafee, op. cit. supra, at 193; Jaffe, The Right to Travel: The Passport Problem, 35 Foreign Affairs 17, and it was in this atmosphere that the Act of 1856 was passed and its re-enactment prior to 1926 took place.
The only area restrictions imposed between 1856 and 1926 arose out of the First World War. Although Americans were not required by law to carry passports in 1915, certain foreign countries insisted that Americans have them. ”

“ Some travel for pleasure, others for business, still others for education. Foreign correspondents and lecturers must equip themselves with firsthand information. Scientists and scholars gain considerably from interchanges with colleagues in other nations. See Chafee, op. cit. supra, at 195.
Just as there are different reasons for people wanting to travel, so there are different reasons advanced by the Government for its need to impose area restrictions. ”

“ While area restrictions have been imposed by the Executive from time to time since 1926, see Senate Hearings 64-65, the Executive has also indicated doubts as to its authority to restrict passports. In 1958 the President formally asked Congress for 'clear statutory authority to prevent Americans from using passports for travel to areas where there is no means of protecting them or where their presence would conflict with our foreign policy objectives.' H.R.Doc. ”

“ Those functionaries, being thus called upon, find themselves embarrassed between their desire to accommodate their fellow-citizens and their unwillingness to certify what they do not officially know; and the necessity of some uniform practice, which may remove the difficulties on all sides, has been strongly urged upon the Department.' III Moore, International Law Digest 862-863 (1906) . ”

“ Others, again, who know that they are not entitled to passports-not being citizens of the United States-seek to get these fraudulent passports, thinking that they will protect them while abroad.' III Moore, op. ”

“ Implicit in this statement, and at the very core of the holding in Kent v. Dulles, is a rejection of the argument there advanced and also made here by the Government that the Executive possesses an inherent power to prohibit or impede travel by restricting the issuance of passports. The Court in Kent expressly recognized that a passport is not only of great value, but also is necessary [4] to leave this country and to travel to most parts of the world. Kent v. Dulles, supra, 357 U.S., at 121, 78 S.Ct., at 1115. The Court demonstrates in Kent v. ”