Briehl v. Dulles
248 F.2d 561, 583 at footnote 21 (1957)
[248 F.2d 561, 583] Almost a century ago, Congress declared that "the right of expatriation is a natural an inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness," and decreed that "any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government." 15 Stat. 223-224 (1868), R.S. § 1999, 8 U.S.C. § 800 (1940). (21) Although designed to apply especially to the rights of immigrants to shed their foreign nationalities, that Act of Congress "is also broad enough to cover, and does cover, the corresponding natural and inherent right of American citizens to expatriate themselves." Savorgnan v. United States, 1950, 338 U.S. 491, 498 note 11, 70 S.Ct. 292, 296, 94 L.Ed. 287. (22) The Supreme Court has held that the Citizenship Act of 1907 and the Nationality Act of 1940 "are to be read in the light of the declaration of policy favoring freedom of expatriation which stands unrepealed." id., 338 U.S. at pages 498-499, 70 S.Ct. at page 296. That same light, I think illuminates 22 U.S.C.A. § 211a and 8 U.S.C.A. § 1185. Since expatriation is today impossible without leaving the country, (23) the policy expressed by Congress in 1868 and never repealed precludes a reading of the passport and travel control statutes which would permit the Secretary of State to prevent citizens from leaving.
The Secretary's construction of the statutes would impinge also upon the Internal Security Act of 1950. (24) Congress there made it unlawful for a member of a Communist organization to apply for or use a passport, but only after such organization has registered under the Act or has been finally ordered to do so. Neither of those events has occurred. (25) Moreover, the prohibition was circumscribed by procedural safeguards not found in the Secretary's "Communist supporter" regulations involved here; and it was substantively limited to "members" of the proscribed organization, whereas the Secretary's regulations apply "regardless of the formal state of [the applicant's] affiliation with the Communist party * * *." (26) These declarations of congressional policy make it unlikely that by other statutes Congress intended to authorize a different policy. (27) "The legislative process is especially qualified and the administrative process is especially unfit for the determination of major policies that depend more upon emotional bent and political instincts than upon investigation, hearing and analysis." Davis, Administrative Law 57 (1951).
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21. This act, though no longer included in the United States Code, has not been repealed and is still in effect. Savorgnan v. United States, 1950, 338 U.S. 491, 498-499, 70 S.Ct. 292.
22. See also op. cit. supra note 1, p. 163.
23. 8 U.S.C.A. §§ 1481 and 1483; Savorgnan v. United States, 338 U.S. at page 503, 70 S.Ct. at page 298.
24. Supra note 6.
26. In the last session of Congress, legislation was introduced by Representative Walter, which would have amended the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. to provide for a passport review procedure and would have denied passports to persons under Communist discipline in much the fashion now employed by the State Department. The bill died in committee. H.R. 9991, 102 Cong.Rec. 4266, 84th Cong., 2d Sess., March 15, 1956.
27. See Note, 41 Geo.L.J., infra note 28, at page 89.