Haig v. Agee
Encyclopedia
Haig v. Agee, 453 U.S. 280
(1981), is a U.S. Supreme Court case involving Congressional delegation of authority over control of passports and the right to international travel. Philip Agee
was an ex-Central Intelligence Agency
(CIA) agent living in West Germany who in 1974 declared a "campaign to fight the U.S. CIA wherever it is operating." After Agee outed several CIA officers resulting in violence against these officers, the United States Secretary of State
at the request of the President revoked Agee's passport in 1979. Agee sued, alleging the secretary had no such authority, had denied him procedural due process rights, his substantive due process "liberty" right to travel under the Fifth Amendment, and had violated his First Amendment right to criticize government policies.
The district court found the Secretary lacked the power to revoke the passport and the court of appeals affirmed. The Supreme Court held that, given the broad discretion accorded the executive branch in matters of national security and foreign policy, the Passport Act of 1926 should be interpreted as granting the power to revoke a passport when necessary for national security.
, was an American citizen residing in West Germany. From 1957 to 1968, he was employed by the Central Intelligence Agency, holding key positions in the division of the Agency that is responsible for covert intelligence gathering in foreign countries.
In 1974, Agee called a press conference in London to announce his "campaign to fight the United
States CIA wherever it is operating," declaring his intent "to expose CIA officers and agents and
to take the measures necessary to drive them out of the countries where they are operating." Agee and his collaborators repeatedly and publicly identified individuals and organizations located in foreign countries as undercover CIA agents, employees, or sources. The identifications divulged classified information, violated Agee's express contract not to make any public statements about Agency matters without prior clearance by the Agency, prejudiced the ability of the United States to obtain intelligence, and were followed by episodes of violence against the persons and organizations identified.
In December 1979, the Secretary of State revoked Agee's passport and delivered an explanatory notice to Agee in West Germany. The notice advised Agee that his activities abroad were causing or
were likely to cause serious damage to the national security or the foreign policy of the United
States and of his right to an administrative hearing and offered to hold such a hearing in West Germany on 5 days' notice.
Agee at once filed suit against the Secretary. He alleged that the regulation invoked by the
Secretary, 22 CFR 51.70 (b)(4)(1980), was not authorized by Congress and was invalid; that the
regulation was impermissibly overbroad; that revocation prior to a hearing violated his Fifth
Amendment right to procedural due process; and that the revocation violated a Fifth Amendment liberty interest in a right to travel and a First Amendment right to criticize Government policies. He sought declaratory and injunctive relief, and he moved for summary judgment on the question of
the authority to promulgate the regulation and on the constitutional claims. For purposes of that
motion, Agee conceded that his activities were causing or were likely to cause serious damage to the national security or foreign policy of the United States. The District Court held that the regulation exceeded the statutory powers of the Secretary under the Passport Act of 1926, 22 U.S.C. 211a, granted summary judgment for Agee, and ordered the Secretary to restore his passport. Agee v. Vance, 483 F. Supp. 729 (DC 1980).
A divided panel of the Court of Appeals affirmed the district court. Agee v. Muskie, 203 U.S. App. D.C. 46, 629 F.2d 80 (1980). It held that the Secretary was required to show that Congress had authorized the regulation either by an express delegation or by implied approval of a "substantial and consistent" administrative practice, Zemel v. Rusk, 381 U.S. 1, 12 (1965). The court found no express statutory authority for the revocation. The Court of Appeals took note of the Secretary's reliance on "a series of statutes, regulations, proclamations, orders and advisory opinions dating back to 1856," but declined to consider those authorities, reasoning that "the criterion for establishing congressional assent by inaction is the actual imposition of sanctions and not the mere assertion of power." The Court of Appeals held that its was not sufficient that "Agee's conduct may be considered by some to border on treason," since "[w]e are bound by the law as we find it." The court also regarded it as material that most of the Secretary's authorities dealt with powers of the Executive Branch "during time of war or national emergency" or with respect to persons "engaged in criminal conduct."
The Court granted certiorari sub nom. Muskie v. Agee, 449 U.S. 818 (1980), and stayed the judgment of the Court of Appeals until its disposition of the case on the grant of certiorari.
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 [grounds] 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.
and Kent v. Dulles
sub silencio and that it would have been better if the Court had forthrightly construed the law such that evidence of a longstanding Executive policy or construction in this area be probative of the issue of congressional authorization.
ing, 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.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1981), is a U.S. Supreme Court case involving Congressional delegation of authority over control of passports and the right to international travel. Philip Agee
Philip Agee
Philip Burnett Franklin Agee was a Central Intelligence Agency case officer and writer, best known as author of the 1975 book, Inside the Company: CIA Diary, detailing his experiences in the CIA. Agee joined the CIA in 1957, and over the following decade had postings in Washington, D.C., Ecuador,...
was an ex-Central Intelligence Agency
Central Intelligence Agency
The Central Intelligence Agency is a civilian intelligence agency of the United States government. It is an executive agency and reports directly to the Director of National Intelligence, responsible for providing national security intelligence assessment to senior United States policymakers...
(CIA) agent living in West Germany who in 1974 declared a "campaign to fight the U.S. CIA wherever it is operating." After Agee outed several CIA officers resulting in violence against these officers, the United States Secretary of State
United States Secretary of State
The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...
at the request of the President revoked Agee's passport in 1979. Agee sued, alleging the secretary had no such authority, had denied him procedural due process rights, his substantive due process "liberty" right to travel under the Fifth Amendment, and had violated his First Amendment right to criticize government policies.
The district court found the Secretary lacked the power to revoke the passport and the court of appeals affirmed. The Supreme Court held that, given the broad discretion accorded the executive branch in matters of national security and foreign policy, the Passport Act of 1926 should be interpreted as granting the power to revoke a passport when necessary for national security.
Facts of the Case
Philip AgeePhilip Agee
Philip Burnett Franklin Agee was a Central Intelligence Agency case officer and writer, best known as author of the 1975 book, Inside the Company: CIA Diary, detailing his experiences in the CIA. Agee joined the CIA in 1957, and over the following decade had postings in Washington, D.C., Ecuador,...
, was an American citizen residing in West Germany. From 1957 to 1968, he was employed by the Central Intelligence Agency, holding key positions in the division of the Agency that is responsible for covert intelligence gathering in foreign countries.
In 1974, Agee called a press conference in London to announce his "campaign to fight the United
States CIA wherever it is operating," declaring his intent "to expose CIA officers and agents and
to take the measures necessary to drive them out of the countries where they are operating." Agee and his collaborators repeatedly and publicly identified individuals and organizations located in foreign countries as undercover CIA agents, employees, or sources. The identifications divulged classified information, violated Agee's express contract not to make any public statements about Agency matters without prior clearance by the Agency, prejudiced the ability of the United States to obtain intelligence, and were followed by episodes of violence against the persons and organizations identified.
In December 1979, the Secretary of State revoked Agee's passport and delivered an explanatory notice to Agee in West Germany. The notice advised Agee that his activities abroad were causing or
were likely to cause serious damage to the national security or the foreign policy of the United
States and of his right to an administrative hearing and offered to hold such a hearing in West Germany on 5 days' notice.
Agee at once filed suit against the Secretary. He alleged that the regulation invoked by the
Secretary, 22 CFR 51.70 (b)(4)(1980), was not authorized by Congress and was invalid; that the
regulation was impermissibly overbroad; that revocation prior to a hearing violated his Fifth
Amendment right to procedural due process; and that the revocation violated a Fifth Amendment liberty interest in a right to travel and a First Amendment right to criticize Government policies. He sought declaratory and injunctive relief, and he moved for summary judgment on the question of
the authority to promulgate the regulation and on the constitutional claims. For purposes of that
motion, Agee conceded that his activities were causing or were likely to cause serious damage to the national security or foreign policy of the United States. The District Court held that the regulation exceeded the statutory powers of the Secretary under the Passport Act of 1926, 22 U.S.C. 211a, granted summary judgment for Agee, and ordered the Secretary to restore his passport. Agee v. Vance, 483 F. Supp. 729 (DC 1980).
A divided panel of the Court of Appeals affirmed the district court. Agee v. Muskie, 203 U.S. App. D.C. 46, 629 F.2d 80 (1980). It held that the Secretary was required to show that Congress had authorized the regulation either by an express delegation or by implied approval of a "substantial and consistent" administrative practice, Zemel v. Rusk, 381 U.S. 1, 12 (1965). The court found no express statutory authority for the revocation. The Court of Appeals took note of the Secretary's reliance on "a series of statutes, regulations, proclamations, orders and advisory opinions dating back to 1856," but declined to consider those authorities, reasoning that "the criterion for establishing congressional assent by inaction is the actual imposition of sanctions and not the mere assertion of power." The Court of Appeals held that its was not sufficient that "Agee's conduct may be considered by some to border on treason," since "[w]e are bound by the law as we find it." The court also regarded it as material that most of the Secretary's authorities dealt with powers of the Executive Branch "during time of war or national emergency" or with respect to persons "engaged in criminal conduct."
The Court granted certiorari sub nom. Muskie v. Agee, 449 U.S. 818 (1980), and stayed the judgment of the Court of Appeals until its disposition of the case on the grant of certiorari.
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 [grounds] 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
Kent v. Dulles
Kent v. Dulles 357 U.S. 116 is a landmark case on the right to travel and passport restrictions as they relate to First Amendment free speech rights...
and Aptheker v. Secretary of State
Aptheker v. Secretary of State
Aptheker v. Secretary of State 378 U.S. 500 is a landmark case on the right to travel and passport restrictions as they relate to Fifth Amendment due process rights and First Amendment free speech, freedom of assembly and freedom of association rights...
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
Zemel v. Rusk
Zemel v. Rusk, , 381 U.S. 1 is a case on the right to travel and area restrictions on passports , holding that the Secretary of State is statutorily authorized to refuse to validate the passports of United States citizens for travel to Cuba and that the exercise of that authority is...
, 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.
Concurrence
Blackmun concurred, stating simply that he believed this case had cut back somewhat on the standards articulated in Zemel v. RuskZemel v. Rusk
Zemel v. Rusk, , 381 U.S. 1 is a case on the right to travel and area restrictions on passports , holding that the Secretary of State is statutorily authorized to refuse to validate the passports of United States citizens for travel to Cuba and that the exercise of that authority is...
and Kent v. Dulles
Kent v. Dulles
Kent v. Dulles 357 U.S. 116 is a landmark case on the right to travel and passport restrictions as they relate to First Amendment free speech rights...
sub silencio and that it would have been better if the Court had forthrightly construed the law such that evidence of a longstanding Executive policy or construction in this area be probative of the issue of congressional authorization.
Dissent
Justice Brennan joined by Justice Marshall dissentDissent
Dissent is a sentiment or philosophy of non-agreement or opposition to a prevailing idea or an entity...
ing, found that the decision strayed from the precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
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.