Limits on Travel

Louis Zemel, a Connecticut ski-resort operator, wanted to go to Cuba in 1962 "to make me a better-informed citizen." The State Department refused to put the necessary endorsement on his passport. Last week, in a decision that surprised many libertarians, the Supreme Court sided with the State Department.

In 1958, the court declared for the first time that travel is "part of the liberty of which the citizen cannot be deprived without the due process of law of the Fifth Amendment." According to that decision (Kent v. Dulles), the State Department exceeded its powers when it denied a passport to Artist Rockwell Kent because of his allegedly Communist beliefs. Last year the court voided an act of Congress denying passports to all U.S. Communists (Aptheker v. Secretary of State). In short, travel cannot be restricted for mere belief or association.

Implicit Approval. In appealing for a declaratory judgment, Zemel argued that the Cuban travel ban, laid down by the State Department in 1961 violates both Kent's due-process requirement and the First Amendment right of free speech. Equally basic, argued Zemel, the Constitution (Article 1) gives Congress sole authority to make laws. The 1926 Passport Act vaguely empowered the State Department to grant passports "under such rules as the President shall designate." But Congress has not specifically empowered the President to impose area restrictions in peacetime. Otherwise, said Zemel, the statute is an unconstitutional delegation of Congress' lawmaking powers.

Speaking for a six-man court majority, Chief Justice Warren ruled that the Cuban ban does not contradict Kent, because it applies to all citizens and does not penalize individual beliefs. As for the free-speech argument, he said, "the right to speak and publish does not carry with it the unrestrained right to gather information." But what about delegation of powers? Acting under the 1926 law, said Warren, the State Department restricted travel to Ethiopia, Spain and China in the 1930s, and later to many Iron Curtain countries. By not acting, said Warren, Congress implicitly approved such administrative rules.

Foreiqn Leeway. Zemel v. Rusk produced three sharp dissenters (alt in the Aptheker majority). Justice William O. Douglas insisted that Americans should be allowed to visit Communist countries in order to understand them. The First Amendment, he said, "presupposes a mature people, not afraid of ideas." Justice Arthur Goldberg argued that Congress in 1926 merely tried to "centralize the issuance of passports," which were once wildly dispensed by U.S. mayors and even notaries. Justice Hugo Black called the 1926 law unconstitutional. Only Congress can make laws "restricting the liberty of our people," said Black.

Warren ruled nonetheless that in granting presidential power in "explosive" foreign relations, "Congress must of necessity paint with a brush broader than it customarily wields in domestic areas." The stage is now set for a problem the court left open: Government prosecution of 150 U.S."students who illegally visited Cuba in 1963 and 1964. If convicted, they may face five years' imprisonment and $5,000 fines.

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