Travel ban

“ I don’t know how much more -- and so I think part of what we’re trying to do is make sure that people actually understand what happened, what the process was, and what the order actually does. Because when we use words like “travel ban,” that misrepresents what it is. It’s seven countries previously identified by the Obama administration where, frankly, we don’t get the information that we need for people coming into this country.
Because what this isn’t about is not just the people. It’s about the information that another country provides us. ”

“ Civil authorities have forbidden further plane travel indefinitely because of the danger of spasms at the controls, and it is rumored that all vehicular transport whatsoever is to come under the same ban. ”

“ I hereby find that the unrestricted immigrant and nonimmigrant entry into the United States of aliens determined to meet one or more of the criteria in subsection 1 (a) of this order would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants or nonimmigrants, of such persons. Such persons shall be treated as persons covered by section 1 of Proclamation 8693 of July 24, 2011 (Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions) . ”

“ The 1918 statute, directly antecedent to presently controlling legislation, provided that in time of war and upon public proclamation by the President that the public safety required additional travel restrictions, no citizen could depart from or enter into the country without a passport. ”

“ Section 1952, prohibits interstate travel with the intent to 'promote, manage, establish, carry on, or facilitate' certain kinds of illegal activity; and the ordinary meaning of this language suggests that the traveler's purpose must involve more than the desire to patronize the illegal activity. ”

“ The denial of a passport, given existing domestic and foreign laws, is a severe restriction upon, and in effect a prohibition against, world-wide foreign travel. Present laws and regulations make it a crime for a United States citizen to travel outside the Western Hemisphere or to Cuba without a passport. By its plain import § 6 of the Control Act effectively prohibits travel anywhere in the world outside the Western Hemisphere by members of any 'Communist organization'-including 'Communist-action' and 'Communist-front' organizations. ”

“ 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. ”

“ The section, judged by its plain import and by the substantive evil which Congress sought to control, sweeps too widely and too indiscriminately across the liberty guaranteed in the Fifth Amendment. The prohibition against travel is supported only by a tenuous relationship between the bare fact of organizational membership and the activity Congress sought to proscribe. The broad and enveloping prohibition indiscriminately excludes plainly relevant considerations such as the individual's knowledge, activity, commitment, and purposes in and places for travel. ”

“ One cannot, of course, go to an hotel as one would in other countries. Hotels have been taken over by the State, and the rooms in them (when they are still used) are allocated by the police to people whose business is recognized as important by the authorities. Casual travel is therefore impossible even on a holiday. ”

“ Similarly, in hearings before another Senate Committee, a Department official explained that when a passport is marked 'invalid' for travel to stated countries, this means that 'this Government is not sponsoring the entry of the individual into those countries and does not give him permission to go in there under the protection of this Government.' [16]
Although Department records show that approximately 600 persons have violated area travel restrictions since the enactment of § 215 (b) , [17] the present prosecutions are the only attempts to convict persons for alleged area transgressions. ”

“ I have to take this opportunity, at the same time, to reiterate a message that we have communicated repeatedly throughout, which is a message to those individuals who are thinking of coming to our border: They need — they need to wait.
It takes time to rebuild the system from scratch. If they come — if families come, if single adults come to the border, we are obligated to, in the service of public health — including the health of the very people who are thinking of coming — to impose the travel restrictions under the CDC’s Title 42 authorities and return them to Mexico. ”

“ We are always considering what steps are necessary to keep the American people safe. But we are not currently in the process of — no decisions have been made around additional public health measures that would delay — or would change, I should say, domestic travel considerations. Q And regarding the domestic travel, also going back to the border: The President — does the President support leaving the southern border open to migrants even before he would even consider this idea of domestic travel restrictions? ”

“ But the key to that problem, as we shall see, is in the manner in which the Secretary's discretion was exercised, not in the bare fact that he had discretion.
The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without the due process of law under the Fifth Amendment. ”

“ The Solicitor General urges that in view of the issuance in 1953 of a presidential proclamation of national emergency which is still outstanding, [10] travel in violation of an area restriction imposed on an otherwise valid passport is unlawful under the 1952 Act. The correctness of this interpretation is a question we do not reach on this appeal, see infra, pp. 18-20. But whether or not the new legislation was intended to attach criminal penalties to the violation of area restrictions, it certainly was not meant to cut back upon the power to impose such restrictions. ”

“ So in Europe it is supposed that the safety of society requires the adoption of a law in every nation that no one shall travel through the territory without a passport, but the traveller, and not the State, pays for the passport. The State is under no obligation to permit the passenger to enter her territory at all. Nothing can be more reasonable, therefore, than that she should make it the condition of his admission, that he should pay all the expenses which his admission occasions. ”

“ As I have said, the right to travel is at the periphery of the First Amendment, rather than at its core, largely because travel is, of course, more than speech: it is speech brigaded with conduct. 'Conduct remains subject to regulation for the protection of society. * * * (But i) n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.' Cantwell v. ”

“ It contemplates that Americans citizens will consult the Department or the consulates abroad to ascertain the dangers of traveling in countries where acceptable standards of protection do not prevail and that, if no objection is perceived, the travel may be authorized. ”

“ Appellees insist that a congressionally mandated residence requirement would violate their right to travel. The import of their contention is that Congress, even under its 'plenary' [4] power to control interstate commerce, is constitutionally prohibited from imposing residence requirements. I reach a contrary conclusion for I am convinced that the extent of the burden on interstate travel when compared with the justification for its imposition requires the Court to uphold this exertion of federal power. ”

“ The Government concedes as much, but offers an alternative construction of the Travel Act-that the Act is violated whenever the operator of an illegal establishment can reasonably foresee that customers will cross state lines for the purpose of patronizing the illegal operation or whenever the operator actively seeks to attract business from another State. The first half of this proposed interpretation-reasonable foreseeability of interstate patronage-does not merit acceptance. ”

“ We complain reasonably enough that we travel everywhere scattering our livres sterling, making the fortunes of innkeepers, creating watering places, supporting entire branches of commerce, fostering capital cities, everywhere cheated, pitied, and laughed at, and yet foreign governments have not the sense to encourage such lucrative and harmless visitors, but do everything they can to prohibit our free locomotion. ”

“ Indeed, rather than being irrelevant, the wartime practice may be the only relevant one, for the discretion with which we are concerned is a discretionary control over international travel. Yet only in times of war and national emergency has a passport been required to leave or enter this country, and hence only in such times has passport power necessarily meant power to control travel. ”

“ All persons shall have the right to enter or leave the territory of the Republic, to travel within its limits, and to change their residence, without necessity of safe conducts, passports, except when otherwise provided by the laws governing immigration, or by the authorities, in cases of criminal prosecution. ”

“ Since this decision other laws more fully regulating interstate commerce on land have been enacted, which need not here be stated. They show a constantly increasing tendency to exercise more fully and vigorously the power conferred by the commerce clause. It is well to notice, however, that Congress has assumed the duty of promoting the safety of public travel by enacting the safety appliance law ”

“ The terms of the statute appear to apply to an American tourist who, after exercising his constitutionally protected liberty to travel abroad, [2] returns home with a single book in his luggage, with no intention of selling it or otherwise using it, except to read it. ”

“ 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. ”

“ And the difference may proceed from this; that the young people of one country travel into the other, where the inhabitants stay at home: a circumstance which would prove very prejudicial to the country of the travellers, if a wise statesman did not, by seasonable prohibitions upon certain articles of foreign consumption, prevent the bad consequences of adopting a taste for what his subjects cannot produce. ”

“ Freedom to travel is, indeed, an important aspect of the citizen's 'liberty.' We need not decide the extent to which it can be curtailed. We are first concerned with the extent, if any, to which Congress has authorized its curtailment.
The difficulty is that while the power of the Secretary of State over the issuance of passports is expressed in broad terms, it was apparently long exercised quite narrowly. So far as material here, the cases of refusal of passports generally fell into two categories. ”

“ The great increase in density of populations and in transportation facilities in the past fifty years, plus the artificial stimulation to further spread, has made this disease far more horrible. As you know already, all travel off this continent is now halted and nobody is allowed to enter by sea until a compulsory quarantine period outside the three mile limit has passed. Air traffic is under military orders. All troops and dependents overseas in threatened areas such as Korea, are already evacuated to quarantine zones in safe territory. ”

“ Nor do I believe the section invalid 'on its face.' While the right to travel abroad is a part of the liberty protected by the Fifth Amendment, the Due Process Clause does not prohibit reasonable regulation of life, liberty or property. ”

“ The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. ”

“ This survey of the various bases for grounding the 'right to travel' is conclusive only to the extent of showing that there has never been an acknowledged constitutional right to be free from private interference, and that the right in question has traditionally been seen and applied, whatever the constitutional underpinning asserted, only against governmental impediments. ”

“ Casual, occasional, and reciprocal transportation of passengers cannot be regulated unless the exemption in section 203 (b) (9) is at least partially removed. The act does not give us power, without the removal of the exemption referred to, to prescribe reasonable rules and regulations governing, or to regulate in any other manner the operations of, travel bureaus. Proper regulation of travel bureaus engaged in legitimate operations can be accomplished only by amendment of the act.' Id. ”