Haig V. Agee - Dissent

Dissent

Justice Brennan joined by Justice Marshall dissenting, found that the decision strayed from the precedent set by Zemel and Kent because neither Zemel nor Kent held that a longstanding Executive policy or construction was sufficient proof that Congress had implicitly authorized the Secretary's action. Those cases held that an administrative practice must be demonstrated; Kent unequivocally stated that mere construction by the Executive - no matter how longstanding and consistent - was not sufficient. 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.

The decision also relied on the very Executive construction and policy deemed irrelevant in Kent. The Court's reliance on material expressly abjured in Kent was understandable only when considering 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. Only three occasions were cited over the past 33 years when the Secretary revoked passports for such reasons.

Finally, just as the Constitution protected both popular and unpopular speech, it likewise protected both popular and unpopular travelers. The decision applied 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 Justices feared that the majority decision handed too much lawmaking function over the government when the Constitution allocated it to the Congress. The point that Kent and Zemel made, and the majority opinion should make, is that the Executive's authority to revoke passports touched an area fraught with important constitutional rights, and that the Court should therefore "construe narrowly all delegated powers that curtail or dilute them." Kent v. Dulles at 129 The presumption should be 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 and to overcome the presumption against an implied delegation, the Government must show "an administrative practice sufficiently substantial and consistent." Zemel v. Rusk, at 12.