Haig V. Agee - Majority Opinion

Majority Opinion

The Court began by examining the language of the statute, concluding that although the Passport Act did not in so many words confer upon the Secretary a power to revoke or to deny passport applications, it was beyond dispute that the Secretary had the power to deny a passport for reasons not specified in the statutes. A consistent administrative construction of the 1926 Act must be followed by the courts "`unless there are compelling indications that it is wrong.'" Matters intimately related to foreign policy and national security were rarely proper subjects for judicial intervention particularly in light of the "broad rule-making authority granted in the 1926 Act," citing Zemel.

It then surveyed passport law and administrative policy and practice from 1835 to 1966, concluding that the history of passport controls since the earliest days of the Republic showed congressional recognition of Executive authority to withhold passports on the basis of substantial reasons of national security and foreign policy. It compared Congressional action and inaction concerning the broad rule-making authority granted in earlier Acts, concluding that there was "weighty" evidence of congressional approval of the Secretary's interpretation that it had been delegated the power to restrict passports on the basis of national security. The Court rejected Agee's argument that the only way the Executive could establish implicit congressional approval is by proof of longstanding and consistent enforcement of the claimed power. It distinguished Kent noting that although there had 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, that in the cases which had arisen, the Secretary had consistently exercised his power to withhold passports. And it rejected Agee's contention that the statements of Executive policy are entitled to diminished weight because many of them concern the powers of the Executive in wartime.

It held incorrect the notion that "illegal conduct" and problems of allegiance were, "so far as relevant here, . . . the only which it could fairly be argued were adopted by Congress in light of prior administrative practice," Kent at 127-128, was not correct because Kent also recognized that the legitimacy of the objective of safeguarding our national security was "obvious and unarguable." id at 509 and that the protection accorded beliefs standing alone is very different from the protection accorded conduct. Thus, it held that the policy announced in the challenged regulations is "sufficiently substantial and consistent" to compel the conclusion that Congress has approved it.

Regarding Agee's Constitutional attacks, the Court held that they, too, were without merit. The revocation of his passport did not impermissibly burdens his freedom to travel because 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 action was not intended to penalize his exercise of free speech and deter his criticism of Government policies and practices because assuming, arguendo, that First Amendment protections reach beyond our national boundaries, revocation of Agee's passport rested in part on the content of his speech. To the extent the revocation of his passport operates to inhibit Agee, "it is an inhibition of action," rather than of speech. And that failure to accord him a prerevocation hearing did not violate his Fifth Amendment right to procedural due process because 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.

The Court found that the right to hold a passport is subordinate to national security and foreign policy considerations, and is subject to reasonable governmental regulation. Denial of Agee's passport was not protected under the First Amendment because unlike Kent v. Dulles and Aptheker v. Secretary of State involving denials of passports solely on the basis of political beliefs entitled to First Amendment protection, Agee's actions amounted to more than speech and that the national security interests here, like Zemel v. Rusk, was sufficiently important to justify revocation. Finally, the Court held that the Government was not required to hold a pre-revocation hearing, since where there was a substantial likelihood of "serious damage" to national security or foreign policy as the result of a passport holder's activities abroad, the Government may take action to ensure that the holder may not exploit the United States' sponsorship of his travels. Further, a statement of reasons and an opportunity for a prompt post-revocation hearing were sufficient to satisfy the Constitution's due process guarantees.