Haig v. Agee

453 U.S. 280

Case Year: 1981

Case Ruling: 7-2, Reversed and Remanded

Opinion Justice: Burger

FACTS

In several legal areas the justices have allowed the president of the United States to take actions in pursuit of the nation’s foreign policy goals that would be highly suspect in domestic affairs. Haig v. Agee (1981) provides an illustration. Philip Agee was an American citizen living in what was then West Germany. Between 1957 and 1968 he worked for the Central Intelligence Agency (CIA) and was involved in covert intelligence-gathering in foreign countries. During this period he acquired a vast knowledge of CIA operations and of agents in the field. After he left government service Agee called a press conference to declare a personal war against the CIA. He said he would do everything he could to expose CIA agents and drive them out of the countries where they worked. Agee pursued this goal by traveling to various countries, using his contacts to identify CIA agents and then exposing them. He published two books that revealed secret information about the activities of the agency and made public the identities of undercover CIA operatives.

In reaction, President Jimmy Carter, through his secretary of state, revoked Agee’s passport, thereby making it impossible for him to travel abroad legally. Agee claimed that the executive branch did not have the authority to revoke his passport. The administration responded that it could use its power to issue passports--or not issue them--as a way of protecting the nation’s foreign policy interests.

 

CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT.

The question presented is whether the President, acting through the Secretary of State, has authority to revoke a passport on the ground that the holder’s activities in foreign countries are causing or are likely to cause serious damage to the national security or foreign policy of the United States....

In December 1979, the Secretary of State revoked Agee’s passport and delivered an explanatory notice to Agee....

“The Department’s action is predicated upon a determination made by the Secretary under the provisions of [22 CFR] Section 51.70 (b) (4) that your activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States. The reasons for the Secretary’s determination are, in summary, as follows: Since the early 1970’s it has been your stated intention to conduct a continuous campaign to disrupt the intelligence operations of the United States. In carrying out that campaign you have travelled in various countries (including, among others, Mexico, the United Kingdom, Denmark, Jamaica, Cuba, and Germany), and your activities in those countries have caused serious damage to the national security and foreign policy of the United States. Your stated intention to continue such activities threatens additional damage of the same kind.”

The notice also advised Agee of his right to an administrative hearing and offered to hold such a hearing in West Germany on 5 days’ notice.

Agee at once filed suit against the Secretary. He alleged that the regulation invoked by the Secretary, has not been authorized by Congress and is invalid; that the regulation is impermissibly overbroad; that the revocation prior to a hearing violated his Fifth Amendment right to procedural due process; and that the revocation violated a Fifth Amendment liberty interest in a right to travel and a First Amendment right to criticize Government policies. He sought declaratory and injunctive relief, and he moved for summary judgment on the question of the authority to promulgate the regulation and on the constitutional claims. For purposes of that motion, Agee conceded the Secretary’s factual averments and his claim that Agee’s activities were causing or were likely to cause serious damage to the national security or foreign policy of the United States. The District Court held that the regulation exceeded the statutory powers of the Secretary under the Passport Act of 1926, 22 U.S.C. 211a, granted summary judgment for Agee, and ordered the Secretary to restore his passport....

A divided panel of the Court of Appeals affirmed. It held that the Secretary was required to show that Congress had authorized the regulation either by an express delegation or by implied approval of a “substantial and consistent” administrative practice. The court found no express statutory authority for the revocation. It perceived only one other case of actual passport revocation under the regulation since it was promulgated and only five other instances prior to that in which passports were actually denied “even arguably for national security or foreign policy reasons.” The Court of Appeals took note of the Secretary’s reliance on “a series of statutes, regulations, proclamations, orders and advisory opinions dating back to 1856,” but declined to consider those authorities, reasoning that “the criterion for establishing congressional assent by inaction is the actual imposition of sanctions and not the mere assertion of power.” The Court of Appeals held that its was not sufficient that “Agee’s conduct may be considered by some to border on treason,” since “[w]e are bound by the law as we find it.” The court also regarded it as material that most of the Secretary’s authorities dealt with powers of the Executive Branch “during time of war or national emergency” or with respect to persons “engaged in criminal conduct.”...

The principal question before us is whether the statute authorizes the action of the Secretary pursuant to the policy announced by the challenged regulation.

Although the historical background is important, we begin with the language of the statute. The Passport Act of 1926 provides in pertinent part:

“The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States ... under such rules as the President shall designated and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports.”

This language is unchanged since its original enactment in 1926.

The Passport Act does not in so many words confer upon the Secretary a power to revoke a passport. Nor, for that matter, does it expressly authorize denials of passport applications. Neither, however, does any statute expressly limit those powers. It is beyond dispute that the Secretary has the power to deny a passport for reasons not specified in the statutes. For example, in Kent v. Dulles /(1958), the Court recognized congressional acquiescence in Executive policies of refusing passports to applicants “participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States.” In Zemel, the Court held that “the weightiest considerations of national security” authorized the Secretary to restrict travel to Cuba at the time of the Cuban missile crisis. Agee concedes that if the Secretary may deny a passport application for a certain reason, he may revoke a passport on the same ground.

Particularly in light of the “broad rule-making authority granted in the 1926 Act,” a consistent administrative construction of that statute must be followed by the courts “‘unless there are compelling indications that it is wrong.’” This is especially so in the areas of foreign policy and national security, where congressional silence is not to be equated with congressional disapproval. In United States v. Curtiss-Wright Export Corp. , 299 U.S. 304 (1936), the volatile nature of problems confronting the Executive in foreign policy and national defense was underscored:

“In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.... As Marshall said in his great argument of March 7, 1800, in the House of Representatives, ‘The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.’”

Applying these considerations to statutory construction, the Zemel Court observed:

“[B]ecause of the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature, Congress--in giving the Executive authority over matters of foreign affairs--must of necessity paint with a brush broader than that it customarily wields in domestic areas.”

Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention....

A passport is, in a sense, a letter of introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer....

The history of passport controls since the earliest days of the Republic shows congressional recognition of Executive authority to withhold passports on the basis of substantial reasons of national security and foreign policy.... From the outset, Congress endorsed not only the underlying premise of Executive authority in the areas of foreign policy and national security, but also its specific application to the subject of passports. Early Congresses enacted statutes expressly recognizing the Executive authority with respect to passports....

The Executive construed the 1926 Act to work no change in prior practice and specifically interpreted it to authorize denial of a passport on grounds of national security or foreign policy. Indeed, by an unbroken line of Executive Orders, regulations, instructions to consular officials, and notices to passport holders, the President and the Department of State left no doubt that likelihood of damage to national security or foreign policy of the United States was the single most important criterion in passport decisions....

This history of administrative construction was repeatedly communicated to Congress, not only by routine promulgation of Executive Orders and regulations, but also by specific presentations, including 1957 and 1966 reports by the Department of State explaining the 1956 regulation and a 1960 Senate Staff Report which concluded that “the authority to issue or withhold passports has, by precedent and law, been vested in the Secretary of State as a part of his responsibility to protect American citizens traveling abroad, and what he considered to be the best interests of the Nation.”

In 1966, the Secretary of State 45 promulgated the regulations at issue in this case. Closely paralleling the 1956 regulation, these provisions authorize revocation of a passport where “[t]he Secretary determines that the national’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.”

Zemel recognized that congressional acquiescence may sometimes be found from nothing more than silence in the face of an administrative policy. Here, however, the inference of congressional approval “is supported by more than mere congressional inaction.” Twelve years after the promulgation of the regulations at issue and 22 years after promulgation of the similar 1956 regulation, Congress enacted the statute making it unlawful to travel abroad without a passport even in peacetime. Simultaneously, Congress amended the Passport Act of 1926 to provide that “[u]nless authorized by law,” in the absence of war, armed hostilities, or imminent danger to travelers, a passport may not be geographically restricted.

The 1978 amendments are weighty evidence of congressional approval of the Secretary’s interpretation, particularly that in the 1966 regulations. Despite the longstanding and officially promulgated view that the Executive had the power to withhold passports for reasons of national security and foreign policy, Congress in 1978, “though it once again enacted legislation relating to passports, left completely untouched the broad rule-making authority granted in the earlier Act.”

Agee argues that the only way the Executive can establish implicit congressional approval is by proof of longstanding and consistent enforcement of the claimed power: that is, by showing that many passports were revoked on national security and foreign policy grounds. For this proposition, he relies on Kent.

A necessary premise for Agee’s contention is that there were frequent occasions for revocation and that the claimed Executive power was exercised in only a few of those cases. However, if there were no occasions--or few--to call the Secretary’s authority into play, the absence of frequent instances of enforcement is wholly irrelevant. The exercise of a power emerges only in relation to a factual situation, and the continued validity of the power is not diluted simply because there is no need to use it.

The history is clear that there have been few situations involving substantial likelihood of serious damage to the national security or foreign policy of the United States as a result of a passport holder’s activities abroad, and that in the cases which have arisen, the Secretary has consistently exercised his power to withhold passports....

... [I]t would be anomalous to fault the Government because there were so few occasions to exercise the announced policy and practice. Although a pattern of actual enforcement is one indicator of Executive policy, it suffices that the Executive has “openly asserted” the power at issue.

Kent is not to the contrary. There, it was shown that the claimed governmental policy had not been enforced consistently. The Court stressed that “as respects Communists these are scattered rulings and not consistently of one pattern.” In other words, the Executive had allowed passports to some Communists, but sought to deny one to Kent. The Court had serious doubts as to whether there was in reality any definite policy in which Congress could have acquiesced. Here, by contrast, there is no basis for a claim that the Executive has failed to enforce the policy against others engaged in conduct likely to cause serious damage to our national security or foreign policy. It would turn Kenton its head to say that simply because we have had only a few situations involving conduct such as that in this record, the Executive lacks the authority to deal with the problem when it is encountered.

Agee also contends that the statements of Executive policy are entitled to diminished weight because many of them concern the powers of the Executive in wartime. However, the statute provides no support for this argument. History eloquently attests that grave problems of national security and foreign policy are by no means limited to times of formally declared war.

Relying on the statement of the Court in Kent that “illegal conduct” and problems of allegiance were, “so far as relevant here, ... the only [grounds] which it could fairly be argued were adopted by Congress in light of prior administrative practice,” Agee argues that this enumeration was exclusive and is controlling here. This is not correct.

The Kent Court had no occasion to consider whether the Executive had the power to revoke the passport of an individual whose conduct is damaging the national security and foreign policy of the United States. Kent involved denials of passports solely on the basis of political beliefs entitled to First Amendment protection. Although finding it unnecessary to reach the merits of that constitutional problem, the Kent Court emphasized the fact that “[w]e deal with beliefs, with associations, with ideological matters.”...

The protection accorded beliefs standing alone is very different from the protection accorded conduct. Thus, in Aptheker v. Secretary of State, the Court held that a statute which, like the policy at issue in Kent, denied passports to Communists solely on the basis of political beliefs unconstitutionally “establishes an irrebuttable presumption that individuals who are members of the specified organizations will, if given passports, engage in activities inimical to the security of the United States.” The Court recognized that the legitimacy of the objective of safeguarding our national security is “obvious and unarguable.” The Court explained that the statute at issue was not the least restrictive alternative available: “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.”

Beliefs and speech are only part of Agee’s “campaign to fight the United States CIA.” In that sense, this case contrasts markedly with the facts in Kent and Aptheker. No presumptions, rebuttable or otherwise, are involved, for Agee’s conduct in foreign countries presents a serious danger to American officials abroad and serious danger to the national security.

We hold that the policy announced in the challenged regulations is “sufficiently substantial and consistent” to compel the conclusion that Congress has approved it.”

Agee also attacks the Secretary’s action on three constitutional grounds: first, that the revocation of his passport impermissibly burdens his freedom to travel; second, that the action was intended to penalize his exercise of free speech and deter his criticism of Government policies and practices; and third, that failure to accord him a prerevocation hearing violated his Fifth Amendment right to procedural due process.

In light of the express language of the passport regulations, which permits their application only in cases involving likelihood of “serious damage” to national security or foreign policy, these claims are without merit.

Revocation of a passport undeniably curtails travel, but the freedom to travel abroad with a “letter of introduction” in the form of a passport issued by the sovereign is subordinate to national security and foreign policy considerations; as such, it is subject to reasonable governmental regulation. The Court has made it plain that the freedom to travel outside the United States must be distinguished from the right to travel within the United States....

It is “obvious and unarguable” that no governmental interest is more compelling than the security of the Nation. Protection of the foreign policy of the United States is a governmental interest of great importance, since foreign policy and national security considerations cannot neatly be compartmentalized.

Measures to protect the secrecy of our Government’s foreign intelligence operations plainly serve these interests....

Not only has Agee jeopardized the security of the United States, but he has also endangered the interests of countries other than the United States--thereby creating serious problems for American foreign relations and foreign policy. Restricting Agee’s foreign travel, although perhaps not certain to prevent all of Agee’s harmful activities, is the only avenue open to the Government to limit these activities.

Assuming, arguendo, that First Amendment protections reach beyond our national boundaries, Agee’s First Amendment claim has no foundation. The revocation of Agee’s passport rests in part on the content of his speech: specifically, his repeated disclosures of intelligence operations and names of intelligence personnel. Long ago, however, this Court recognized that “[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.” Agee’s disclosures, among other things, have the declared purpose of obstructing intelligence operations and the recruiting of intelligence personnel. They are clearly not protected by the Constitution. The mere fact that Agee is also engaged in criticism of the Government does not render his conduct beyond the reach of the law.

To the extent the revocation of his passport operates to inhibit Agee, “it is an inhibition of action,” rather than of speech. Agee is as free to criticize the United States Government as he was when he held a passport--always subject, of course, to express limits on certain rights by virtue of his contract with the Government.

On this record, the Government is not required to hold a prerevocation hearing. In Cole v. Young we held that federal employees who hold “sensitive” positions “where they could bring about any discernible adverse effects on the Nation’s security” may be suspended without a presuspension hearing. For the same reasons, when there is a substantial likelihood of “serious damage” to national security or foreign policy as a result of a passport holder’s activities in foreign countries, the Government may take action to ensure that the holder may not exploit the sponsorship of his travels by the United States. “[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact.” The Constitution’s due process guarantees call for no more than what has been accorded here: a statement of reasons and an opportunity for a prompt postrevocation hearing.

We reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. Reversed and remanded.

JUSTICE BLACKMUN, CONCURRING.

There is some force, I feel, in JUSTICE BRENNAN’sobservations, that today’s decision cannot be reconciled fully with all the reasoning of Zemel v. Rusk (1965), and, particularly, of Kent v. Dulles (1958), and that the Court is cutting back somewhat upon the opinions in those cases sub silentio. I would have preferred to have the Court disavow forthrightly the aspects ofZemel and Kent that may suggest that evidence of a longstanding Executive policy or construction in this area is not probative of the issue of congressional authorization. Nonetheless, believing this is what the Court in effect has done, I join its opinion.

JUSTICE BRENNAN, WITH WHOM JUSTICE MARSHALL JOINS, DISSENTING.

Today the Court purports to rely on prior decisions of this Court to support the revocation of a passport by the Secretary of State. Because I believe that such reliance is fundamentally misplaced, and that the Court instead has departed from the express holdings of those decisions, I dissent...

This is not a complicated case. The Court has twice articulated the proper mode of analysis for determining whether Congress has delegated to the Executive Branch the authority to deny a passport under the Passport Act of 1926. Zemel v. Rusk (1965);Kent v. Dulles (1958). The analysis is hardly confusing, and I expect that had the Court faithfully applied it, today’s judgment would affirm the decision below.

In Kent v. Dulles, the Court reviewed a challenge to a regulation of the Secretary denying passports to applicants because of their alleged Communist beliefs and associations and their refusals to file affidavits concerning present or past membership in the Communist Party. Observing that the right to travel into and out of this country is an important personal right included within the “liberty” guaranteed by the Fifth Amendment, the Court stated that any infringement of that liberty can only “be pursuant to the law-making functions of the Congress,” and that delegations to the Executive Branch that curtail that liberty must be construed narrowly. Because the Passport Act of 1926--the same statute at issue here--did not expressly authorize the denial of passports to alleged Communists, the Court examined cases of actual passport refusals by the Secretary to determine whether “it could be fairly argued” that this category of passport refusals was “adopted by Congress in light of prior administrative practice.” The Court was unable to find such prior administrative practice, and therefore held that the regulation was unauthorized.

In Zemel v. Rusk the issue was whether the Secretary could restrict travel for all citizens to Cuba. In holding that he could, the Court expressly approved the holding in Kent:

“We have held, Kent v. Dulles, supra, and reaffirm today, that the 1926 Act must take its content from history: it authorizes only those passport refusals and restrictions ‘which it could fairly be argued were adopted by Congress in light of prior administrative practice.’ Kent v. Dulles. So limited, the Act does not constitute an invalid delegation.”...

As in Kent and Zemel, there is no dispute here that the Passport Act of 1926 does not expressly authorize the Secretary to revoke Agee’s passport. Therefore, the sole remaining inquiry is whether there exists “with regard to the sort of passport [revocation] involved [here], an administrative practice sufficiently substantial and consistent to warrant the conclusion that Congress had implicitly approved it.” The Court today, citing to this same page in Zemel, applies a test markedly different from that of Zemel and Kent and in fact expressly disavowed by the latter. The Court states: “We hold that the policy announced in the challenged regulations is ‘sufficiently substantial and consistent’ to compel the conclusion that Congress has approved it. The Court also observes that “a consistent administrative construction of [the Passport Act] must be followed by the courts ‘“unless there are compelling indications that it is wrong.”’”

But clearly neither Zemel nor Kent holds that a longstanding Executive policy or construction is sufficient proof that Congress has implicitly authorized the Secretary’s action. The cases hold that an administrative practice must be demonstrated; in factKent unequivocally states that mere construction by the Executive--no matter how longstanding and consistent--is not sufficient. The passage in Kent is worthy of full quotation:

“Under the 1926 Act and its predecessor a large body of precedents grew up which repeat over and again that the issuance of passports is ‘a discretionary act’ on the part of the Secretary of State. The scholars, the courts, the Chief Executive, and the Attorneys General, all so said. This long-continued executive construction should be enough, it is said, to warrant the inference that Congress adopted it. 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 Court’s requirement in Kent of evidence of the Executive’s exercise of discretion as opposed to its possession of discretion may best be understood as a preference for the strongest proof that Congress knew of and acquiesced in that authority. The presence of sensitive constitutional questions in the passport revocation context cautions against applying the normal rule that administrative constructions in cases of statutory construction are to be given great weight. Only when Congress had maintained its silence in the face of a consistent and substantial pattern of actual passport denials or revocations--where the parties will presumably object loudly, perhaps through legal action, to the Secretary’s exercise of discretion--can this Court be sure that Congress is aware of the Secretary’s actions and has implicitly approved that exercise of discretion. Moreover, broad statements by the Executive Branch relating to its discretion in the passport area lack the precision of definition that would follow from concrete applications of that discretion in specific cases. Although Congress might register general approval of the Executive’s overall policy, it still might disapprove of the Executive’s pattern of applying that broad rule in specific categories of cases.

Not only does the Court ignore the Kent-Zemel requirement that Executive discretion be supported by a consistent administrative practice, but it also relies on the very Executive construction and policy deemed irrelevant in Kent. Thus, noting that “[t]he President and the Secretary of State consistently construed the 1856 [Passport] Act to preserve their authority to withhold passports on national security and foreign policy grounds,” the Court reaches out to hold that “Congress, in 1926, adopted the longstanding administrative construction of the 1856 statute.” The Court quotes from 1869 and 1901 opinions of the Attorneys General. But Kent expressly cited both of these opinions as examples of Executive constructions not relevant to the determination whether Congress had implicitly approved the Secretary’s exercise of authority....

The Court’s reliance on material expressly abjured in Kent becomes understandable only when one appreciates the paucity of recorded administrative practice--the only evidence upon which Kent and Zemel permit reliance--with respect to passport denials or revocations based on foreign policy or national security considerations relating to an individual. The Court itself identifies only three occasions over the past 33 years when the Secretary has revoked passports for such reasons. And only one of these cases involved a revocation pursuant to the regulations challenged in this case. Yet, in 1979 alone, there were 7,835,000 Americans traveling abroad.

In light of this record, the Court, somewhat defensively, comments: “The Secretary has construed and applied his regulations consistently, and it would be anomalous to fault the Government because there were so few occasions to exercise the announced policy and practice.... It would turn Kent on its head to say that simply because we have had only a few situations involving conduct such as that in this record, the Executive lacks the authority to deal with the problem when it is encountered.” Of course, no one is “faulting” the Government because there are only few occasions when it has seen fit to deny or revoke passports for foreign policy or national security reasons. The point that Kent and Zemel make, and that today’s opinion should make, is that the Executive’s authority to revoke passports touches an area fraught with important constitutional rights, and that the Court should therefore “construe narrowly all delegated powers that curtail or dilute them.” The presumption is that Congress must expressly delegate authority to the Secretary to deny or revoke passports for foreign policy or national security reasons before he may exercise such authority. To overcome the presumption against an implied delegation, the Government must show “an administrative practice sufficiently substantial and consistent.” Only in this way can the Court satisfy itself that Congress has implicitly approved such exercise of authority by the Secretary.

I suspect that this case is a prime example of the adage that “bad facts make bad law.” Philip Agee is hardly a model representative of our Nation. And the Executive Branch has attempted to use one of the only means at its disposal, revocation of a passport, to stop respondent’s damaging statements. But just as the Constitution protects both popular and unpopular speech, it likewise protects both popular and unpopular travelers. And it is important to remember that this decision applies not only to Philip Agee, whose activities could be perceived as harming the national security, but also to other citizens who may merely disagree with Government foreign policy and express their views.

The Constitution allocates the lawmaking function to Congress, and I fear that today’s decision has handed over too much of that function to the Executive. In permitting the Secretary to stop this unpopular traveler and critic of the CIA, the Court professes to rely on, but in fact departs from, the two precedents in the passport regulation area, Zemel and Kent. Of course it is always easier to fit oneself within the safe haven of stare decisis than boldly to overrule precedents of several decades’ standing. Because I find myself unable to reconcile those cases with the decision in this case, however, and because I disagree with the Court’s sub silentio overruling of those cases, I dissent.