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5 USC § 702 hearings & your Ind.MasterFile; Passports, the "Right to Travel",

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  • Legalbear
    Look at these quotes I found respecting passports. I found this when I was doing research on administrative determinations of status. [28] The Passport Act
    Message 1 of 1 , Dec 4, 2007
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      Look at these quotes I found respecting passports. I found this when I was doing research on administrative determinations of status.

       

      [28]     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.*fn19 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, 357 U.S. 116 (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." Id., at 127. 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. 381 U.S. , at 16. Agee concedes that if the Secretary may deny a passport application for a certain reason, he may revoke a passport on the same ground.*fn20 Haig v. Agee, 1981.SCT.42674 <http://www.versuslaw.com> ¶ 28; 453 U.S. 280 (1981).

       

      [33]     Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention. In Harisiades v. Shaughnessy, 342 U.S. 580 (1952), the Court observed that matters relating "to the conduct of foreign relations . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." Id., at 589; accord, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948). Haig v. Agee, 1981.SCT.42674 <http://www.versuslaw.com> ¶ 33; 453 U.S. 280 (1981).

       

      [36]     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. 3 G. Hackworth, Digest of International Law § 268, p. 499 (1942). Very early, the Court observed:

       

      [37]     "[A passport] is a document, which, from its nature and object, is addressed to foreign powers; purporting only to be a request, that the bearer of it may pass safely and freely; and is to be considered rather in the character of a political document, by which the bearer is recognized, in foreign countries, as an American citizen; and which, by usage and the law of nations, is received as evidence of the fact." Urtetiqui v. D'Arcy, 9 Pet. 692, 698 (1835).

       

      [38]     With the enactment of travel control legislation making a passport generally a requirement for travel abroad,*fn22 a passport took on certain added characteristics. Most important for present purposes, the only means by which an American can lawfully leave the country or return to it -- absent a Presidentially granted exception -- is with a passport. See 8 U. S. C. § 1185 (b) (1976 ed., Supp. IV). As a travel control document, a passport is both proof of identity and proof of allegiance to the United States . Even under a travel control statute, however, a passport remains in a sense a document by which the Government vouches for the bearer and for his conduct.

       

      [39]     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. Prior to 1856, when there was no statute on the subject, the common perception was that the issuance of a passport was committed to the sole discretion of the Executive and that the Executive would exercise this power in the interests of the national security and foreign policy of the United States.*fn23 This derived from the generally accepted view that foreign policy was the province and responsibility of the Executive.*fn24 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.*fn25

       

      [40]     The first Passport Act, adopted in 1856, provided that the Secretary of State "shall be authorized to grant and issue passports . . . under such rules as the President shall designate and prescribe for and on behalf of the United States . . . ." § 23, 11 Stat. 60.*fn26 This broad and permissive language worked no change in the power of the Executive to issue passports; nor was it intended to do so. The Act was passed to centralize passport authority in the Federal Government*fn27 and specifically in the Secretary of State.*fn28 In all other respects, the 1856 Act [41] "merely confirmed an authority already possessed and exercised by the Secretary of State. This authority was ancillary to his broader authority to protect American citizens in foreign countries and was necessarily incident to his general authority to conduct the foreign affairs of the United States under the Chief Executive." Senate Committee on Government Operations, Reorganization of the Passport Functions of the Department of State, 86th Cong., 2d Sess., 13 (Comm. Print 1960).

       

      [42]     The President and the Secretary of State consistently construed the 1856 Act to preserve their authority to withhold passports on national security and foreign policy grounds. Thus, as an emergency measure in 1861, the Secretary issued orders prohibiting persons from going abroad or entering the country without passports; denying passports to citizens who were subject to military service unless they were bonded; and absolutely denying passports to persons "on errands hostile and injurious to the peace of the country and dangerous to the Union." 3 J. Moore, A Digest of International Law 920 (1906); U.S. Dept. of State, The American Passport 49-54 (1898).*fn29 An 1869 opinion of Attorney General Hoar held that the granting of a passport was not "obligatory in any case." 13 Op. Atty. Gen. 89, 92. This was elaborated in 1901 in an opinion of Attorney General Knox, in which he stated:

       

      [43]     "Substantial reasons exist for the use by Congress of the word 'may' in connection with authority to issue passports. Circumstances are conceivable which would make it most inexpedient for the public interests for this country to grant a passport to a citizen of the United States ." 23 Op. Atty. Gen. 509, 511.

       

      [44]     In 1903, President Theodore Roosevelt promulgated a rule providing that "[the] Secretary of State has the right in his discretion to refuse to issue a passport, and will exercise this right towards anyone who, he has reason to believe, desires a passport to further an unlawful or improper purpose."*fn30 Subsequent Executive Orders issued between 1907 and 1917 cast no doubt on this position.*fn31 This policy was enforced in peacetime years to deny passports to citizens whose conduct abroad was "likely to embarrass the United States"*fn32 or who were "disturbing, or endeavoring to disturb, the relations of this country with the representatives of foreign countries."*fn33

       

      [45]     By enactment of the first travel control statute in 1918,*fn34 Congress made clear its expectation that the Executive would curtail or prevent international travel by American citizens if it was contrary to the national security. The legislative history reveals that the principal reason for the 1918 statute was fear that "renegade Americans" would travel abroad and engage in "transference of important military information" to persons not entitled to it.*fn35 The 1918 statute left the power to make exceptions exclusively in the hands of the Executive, without articulating specific standards. Unless the Secretary had power to apply national security criteria in passport decisions, the purpose of the Travel Control Act would plainly have been frustrated.

       

      [46]     Against this background, and while the 1918 provisions were still in effect, Congress enacted the Passport Act of 1926. The legislative history of the statute is sparse. However, Congress used language which is identical in pertinent part to that in the 1856 statute (supra, at 294), as amended,*fn36 and the legislative history clearly shows congressional awareness of the Executive policy.*fn37 There is no evidence of any intent to repudiate the longstanding administrative construction.*fn38 Absent such evidence, we conclude that Congress, in, adopted the longstanding administrative construction of the 1856 statute. See Lorillard v. Pons, 434 U.S. 575, 580-581 (1978).

       

      [47]     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,*fn39 regulations,*fn40 instructions to consular officials,*fn41 and notices to passport holders,*fn42 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. The regulations are instructive. The 1952 version authorized denial of passports to citizens engaged in activities which would violate laws designed to protect the security of the United States "[in] order to promote the national interest by assuring that the conduct of foreign relations shall be free from unlawful interference." 17 Fed. Reg. 8013 (1952). The 1956 amendment to this regulation provided that a passport should be denied to any person whose [48]  "activities abroad would: (a) Violate the laws of the United States ; (b) be prejudicial to the orderly conduct of foreign relations; or (c) otherwise be prejudicial to the interests of the United States ." 22 CFR § 51.136 (1958). Haig v. Agee, 1981.SCT.42674 <http://www.versuslaw.com> ¶¶ 36-47; 453 U.S. 280 (1981).

       

      [53]     Zemel recognized that congressional acquiescence may sometimes be found from nothing more than silence in the face of an administrative policy. 381 U.S. , at 11; see Udall v. Tallman, 380 U.S. 1, 16-18 (1965); Norwegian Nitrogen Co. v. United States , 288 U.S. 294, 313 (1933); Costanzo v. Tillinghast, 287 U.S. 341, 345 (1932). Here, however, the inference of congressional approval "is supported by more than mere congressional inaction." Zemel, 381 U.S. , at 11-12. 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. 8 U. S. C. § 1185(b) (1976 ed., Supp. IV).*fn47 Simultaneously, Congress amended the Passport Act of 1926 to provide that "[unless] authorized by law," in the absence of war, armed hostilities, or imminent danger to travelers, a passport may not be geographically restricted.*fn48 Title 8 U. S. C. § 1185(b) (1976 ed., Supp. IV) must be read in pari materia with the Passport Act. Zemel, supra, at 11-12; see 2A C. Sands, Sutherland on Statutory Construction § 51.03, p. 299 (4th ed. 1973); cf. Erlenbaugh v. United States , 409 U.S. 239, 243-244 (1972).*fn49 Haig v. Agee, 1981.SCT.42674 <http://www.versuslaw.com> ¶¶ 53; 453 U.S. 280 (1981).

       

      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. Haig v. Agee, 1981.SCT.42674 <http://www.versuslaw.com> ¶¶ 57; 453 U.S. 280 (1981).

       

      (This above quote has reference to us. Just because as of this date we have rarely exercised our power to correct government officials by way of criminal prosecutions, does not mean “the continued validity of the power is not diluted simply because there is no need to use it.”)

       

      [69]     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 . This was underscored in Califano v. Aznavorian, 439 U.S. 170, 176 (1978):

       

      [70]     "Aznavorian urges that the freedom of international travel is basically equivalent to the constitutional right to interstate travel, recognized by this Court for over 100 years. Edwards v. California , 314 U.S. 160; Twining v. New Jersey, 211 U.S. 78, 97; Williams v. Fears, 179 U.S. 270,274; consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results." 299 U.S. , at 320.

       

      [71]     Accord, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S., at 111; The Federalist No. 64, pp. 392-393 (Mentor ed. 1961). Haig v. Agee, 1981.SCT.42674 <http://www.versuslaw.com> ¶¶ 69-71; 453 U.S. 280 (1981).

       

      "[While] the Constitution protects against invasions of individual rights, it is not a suicide pact." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963). 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.*fn62  Haig v. Agee, 1981.SCT.42674 <http://www.versuslaw.com> ¶¶ 75; 453 U.S. 280 (1981).

       

      (This last statement has application to the so called “income tax”. Their determination that you sell guns or drugs in the Virgin Islands , hidden away in your Individual Master File, with no opportunity for a hearing on the matter violates Due Process because that is a determination that affects your rights and duties.)

       

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