J. Lee Rankin: In answer to Mr. Justice Frankfurter's question, at page 29 in our brief in a footnote, the language of the passport is set out.
Felix Frankfurter: Oh, yes, thank you.
J. Lee Rankin: Then on page 31, there are some references about at the bottom of page 30 and carrying on to 31 our references to some enactments by the Congress in which it had recognize the power of the Secretary was being exercised to grant or deny passports at that time.
Felix Frankfurter: This is the present passport. It has the exact language for the passport issued by the Secretary of the State beyond certiorari.
J. Lee Rankin: Yes, Mr. Justice. Now, turning to the appendix at page 102 of our brief, we think that the important language is in 1185, the paragraph numbered 1. No, that's not it. In paragraph B, I'm sorry, 1(b) that's on 103, citizens except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter the United States, unless he bears a valid passport. And then, you proceed over to page 104 and on to 105 and there's an -- a proclamation of emergency. Then, 106 and 107 is a proclamation by the President as to an emergency and to the need for the passport control under the statute.
William J. Brennan, Jr.: That's the one on which, that Mr. Boudin is not -- and still being outstanding.
J. Lee Rankin: It -- it is still outstanding, yes. Then, in paragraph numbered 1 on page 107, provides the departure and entry of citizens and nationals of the United States from entering the United States including the Canal zone and all territory and waters continental or insular, subject to the jurisdiction of the United States shall be subject to the regulations prescribed by the Secretary of State and published and so forth. And then, in paragraph numbered 4, it goes on in regard to the proclamation and makes a part of the proclamation, all of the regulations of the Secretary in regard to the issues of passports in accordance with this statute and the proclamations. Then, on page 109, we have the provisions in regard to the granting of the passports, the statute that empowers the Secretary to grant or deny passports and it incorporates in the first paragraph there at six -- Section 211(a) under such rules as the President shall designate and prescribe for and on behalf of the United States. And in 213, it provides for an application for passport. It requires that they submit a written application, duly verified by its oath before a person authorizes them the power to administer oaths. We continue recital of every matter of fact which maybe required by law or by any rules authorized by law to be stated as a prerequisite to the issues of any such passport. And the Secretary proceeded to make a regulation. But first, we have the executive or the number of 7856 on 110, providing for affidavits and support an application for passport. And then, Section 51.77 authorizes the Secretary of State to make the passport regulations. 531 provides that anyone who doesn't bear such a -- a valid passport issued under the authority of the Secretary of State shall not -- shall not travel beyond the Western Hemisphere. Then, the Secretary of State prescribed certain regulations set out on page 112. And 51.135 is the one of particular interest in this case and subparagraphs A, B and C. Then, turning to page 115, Section 51.142 is the Secretary as distinguished from the President's giving it authority to the Secretary to provide for applications, affidavit and oath, the Secretary's requirement. Then, before their affirmation by applicants be given as to membership in the Communist Party, at any stage of the proceedings in the Passport Division and before the Board, if it was deemed necessary, the applicant maybe required as a part of his application to subscribe under oath or affirmation to a statement with respect to present or past membership in the Communist Party. If applicant states that he is Communist, refusal of the passport in this case will be -- be without further proceedings. Now, that's the -- taking that frame through those various statutes and the proclamations and the regulations, the Government's position that the proclamations and regulations were provided for and authorized by law.
Felix Frankfurter: Mr. Solicitor, may I ask you to -- to tell me what is meant by -- what is implied of the case by Section 27 in the first crime that says in 1790. I believe that is the first crime accessed by the Congress, April 30th, 1790. Section 27 says that if any person shall violate safe conduct or passports duly obtained and issued under the authority of United States shall be punished by -- by 42 years. What does that mean, to violate any passport duly obtained and issued under the authority, how would you be violating that?
J. Lee Rankin: The Government construes that it has to be used to be violated and the -- that the --
Felix Frankfurter: But he wasn't -- the violations exist?
J. Lee Rankin: Well --
Felix Frankfurter: Because this assumes that you got a passport, it was duly obtained and issued as the one by John Quincy Adams was in that early case? How would one violate it?
J. Lee Rankin: Well, often this -- often the passports are restricted. In fact, that's a common practice. Now, to stamp on passports --
Felix Frankfurter: Of the country? The geographical --
J. Lee Rankin: Yes, if they cannot --
Felix Frankfurter: And this is not what this means. If John Quincy Adams issued a passport to go to Peru or Belgium, and he goes to the then-Prussia, would that be within the statute?
J. Lee Rankin: Well, that's the way I would --
Felix Frankfurter: Essentially --
J. Lee Rankin: -- read it. And the Government construes that the person has to use the passport in order to be in violation of the statute.
Felix Frankfurter: Could this provision continue down to date?
J. Lee Rankin: Yes. In this particular Kent case, the evidence I think is uncontradicted but Mr. Kent went into iron curtain countries and to Moscow in violation of the provisions of his passport on several missions and that's one of the things that's discussed in the case, but it is not a ground for the action here. The ground --
Felix Frankfurter: And Congress imposed a sentence of three years for that, James Madison and the Congress? That's highly illuminating.
J. Lee Rankin: Now, the issue in this case is whether or not the termination of these proceedings or failure to furnish the affidavit is proper, lawful and whether not if the petitioners have lost rights that they are entitled to under the Constitution and law and is the cause of that and so it depends upon whether or not the Secretary having the power to require such an affidavit and in general terms at that time. We believe that the statutes and regulations, proclamations that I referred to, do authorize the requirement of an application, that the application is necessary for the Secretary to get the facts from which he can be able to issue or deny the passport and also that the requirement under the oath is reasonable, it's expressly provided for by not only the -- the regulations of the Secretary, but also the proclamation of the President. And going back into the history of these four matters, which largely developed in the war period of 1914 and later years the Congress addressed itself to this question of travel control because it found and there's a considerable history of the -- in the hearings about it that passports were being used by citizens of the United States to further the war efforts and the various espionage and subversive activities of Germany during World War I and prior thereto. And it is because of that investigations have found that it's very expensive, both in this hemisphere and in Europe of this activity that's going on that the Congress authorized this authority to restrict this travel control and prevent or prohibit where the Secretary was able to find it, the conduct of American citizens in that way in aiding the war effort of -- of foreign power. Then, the Act, I want to make it clear, too, that until the -- until the Act of 1952, this power of -- of travel control was limited to war periods and it was in the Act of 1952 that the Congress extended this to the emergency proclamation as well as providing that it should cover any war period.
Speaker: What was the date of the original Act?
J. Lee Rankin: 1918.
Speaker: Was that the first time this statute appeared on the books?
J. Lee Rankin: Yes, in this type and form.
Felix Frankfurter: Mr. Solicitor, the -- and that is in looking at the terms of the relief prayed for that the petitioner stand on the Act of 1926. Now, assume they can't stand on the Act of 1926, could be -- what if any of the -- of the demands made of the record with requirements of the State Department for Kent and Justice Prettyman. Would -- would you justify under that?
J. Lee Rankin: No, we think that the -- the problem would be the same under that Act as it is under the 1952 Act. There would be the same general provisions in regard to the authority for travel control and they were carried down through the years were the only difference in 1952, being the provision of adding that if a person declared an emergency as distinguished from war period and if --
Felix Frankfurter: So, do you think it was restricted in war?
J. Lee Rankin: That -- that's my recollection.And that further that he would have to declare that these travel controls were necessary under the 1952 law and the earlier statutes provided that in -- during a war period, they would be affected.
Felix Frankfurter: Am I right or wrong - I really don't know-in view of the judgment which they pray, is the question at all open to this Court to say that the Secretary of State must issue the passport, put aside the question of emergency? The Secretary of State must issue a passport to these applicants for a passport upon refusal to answer any questions?
J. Lee Rankin: Well, I would think that question is only open to the Court. If you should decide that the Secretary has no right to ask any questions or to control travel by refusing a passport in any event and that you were satisfied with a position of the petitioners that if they prove citizenship, the Secretary had no discretion whatsoever and had to issue a passport.
Felix Frankfurter: Was I -- the question to the answer you gave us a minute ago in my question since they sent -- since they claimed rights under the Passport Act of 1926 that if their rights aren't on their own requested of their own prayers to be measured by their rights under the Act of 1926, then it becomes relevant to question whether the Government's position is that under that Act, the procedure of the Secretary of State is dependable or justifiable, right? I understood that you said yes, is that right?
J. Lee Rankin: Yes, but --
Felix Frankfurter: Subject to the emergency question.
J. Lee Rankin: That's right.
Felix Frankfurter: Now, what was there -- what about there -- it's a given out there and you suppose you -- you deal on its face. What is there on the 1926? Assume that they know declaration of emergency that the Secretary of State can exact as the conditions in granting or giving a passport?
J. Lee Rankin: Well, he can exact an application and that application is in the form of an oath that isn't -- that has to be sworn to, answering the various questions that he sits -- sees fit to promulgate in order to --
Felix Frankfurter: Does any oath of the 1926 Act require an oath who disavowed the Communist membership -- party membership with your point of view?
J. Lee Rankin: Yes.
Felix Frankfurter: Well, then, you could say you can grant that, the basis that they've prayed on they're not entitle to have relief, is your position, is it?
J. Lee Rankin: Well --
Felix Frankfurter: If he can --
J. Lee Rankin: They say in heir position is it that we cannot make such demands.
Felix Frankfurter: Yes, I understand that but you say that would then justify such a demand, disavowing membership to the Communist Party on the basis of the 1926 Act, is that right?
J. Lee Rankin: Well, it's the -- the Section 211 (a) which is the Section in the Immigration Nationality Act and I think it's the amended section that they're relying on and that they don't try to go back as far as 1926, on that.
Felix Frankfurter: Well, they tried -- are weak in their first prayer. Therefore, plaintiff prays for a judgment decreeing that the plaintiff -- this is page six of the 481 record -- plaintiff prays for a judgment decreeing that the plaintiff, as an American citizen, is entitled to a passport under the statutes of the United States, including the Passport Act of 1926.
J. Lee Rankin: I -- I think they would take that as amendment.
Felix Frankfurter: Well, it states then their rights haven't been deposited if they haven't cut come down to.
J. Lee Rankin: No, no, but it was involved with the question of -- of the contemplation of the -- all that's developed since with regard to Communist activity since 1926. It wouldn't be limited to whatever the situation was.
Felix Frankfurter: If you are answering unequivocally that if you take only 1926 unamended, the Secretary of State then asked the applicant to swear, could asked in 1926, I don't know when he did, that he's not a member of the Communist Party.
J. Lee Rankin: Well, that'd been my position is. There's also the period of the -- of World War II during --
William J. Brennan, Jr.: But before you leave that, Mr. Solicitor, I -- well, that -- that's to suggest that could be done -- although the questions were asked for the purposes of controlling powers I understand it on the basis of the 1926 Act without reference to 1185 or the 1952 Act.
J. Lee Rankin: I think the correct construction is that 1185 has to be read with the innovation of the Nationality Act is now addition --
William J. Brennan, Jr.: That's the 1926 Act.
J. Lee Rankin: Yes. Oh as in -- it was the amended Act. It was carried in --
William J. Brennan, Jr.: Well, I -- what I'm looking at is at -- at 109 of your brief.Isn't that the 1926 Act, 211(a)?
J. Lee Rankin: Well, the 1926 Act in regard to the right to travel is 1185.
William J. Brennan, Jr.: Is that the 1926?
J. Lee Rankin: 211(a).
William J. Brennan, Jr.: The 211(a) is the 19 --
J. Lee Rankin: In regard to the right to issue the passport.
William J. Brennan, Jr.: Yet the federal has nothing to do. I thought you said before lunch, I thought you said that Section has nothing to do with the right to control travel.
J. Lee Rankin: That's right.
William J. Brennan, Jr.: And you have to get at least the -- the authority to control -- The authority to control, the authority of the Secretary to control is your 1952 Act, 1185, is that right?
J. Lee Rankin: Well, yes, except that 1185 was a re-enactment of the earlier.
Felix Frankfurter: I'm sorry. 211(a), which you've just been talking about-
J. Lee Rankin: Yes.
Felix Frankfurter: -- authorizes the Secretary of State to grant and issue passports, etcetera . Has it authorized them to grant? I presume it also authorizes not to grant --
J. Lee Rankin: Yes.
Felix Frankfurter: -- and that's the Act of 1926?
J. Lee Rankin: Yes.
Felix Frankfurter: And these petitioners asked for this to have relief. They say - including the-under the Act of 1926, Secretary Dulles must issue me a passport. Isn't that what they're asking for?
J. Lee Rankin: Yes, but I think their
Felix Frankfurter: And did they ask --
J. Lee Rankin: -- their claims is broader than that. They say that you can't deny --
Felix Frankfurter: But can you satisfy -- but can you satisfy by acting under 211 (a)?
J. Lee Rankin: Well, --
Felix Frankfurter: Whether their claim is broad, or whether their reasoning is broad, --
J. Lee Rankin: Yes.
Felix Frankfurter: -- that's what they asked? Now, what I want to know is whether, under that provision, with the added qualification, "under such rules as the President shall designate"- did he issue any rules under '26? Were there any in being?
J. Lee Rankin: Under 211(a), no.
Felix Frankfurter: Under -- there was no question in the rule?
J. Lee Rankin: Yes, sir, a presidential rule under 211(a).
Felix Frankfurter: Now, under that -- I -- I'm sorry to have the repetition.
J. Lee Rankin: Yes.
Felix Frankfurter: This seems to be pretty important. Under the authority of 211(a) so what could it act? It has the Secretary of State the right to withhold this application for a passport because they wouldn't answer any question, and he taking the position but because he asked that question, there's no reason for them not answering good questions.
J. Lee Rankin: No, sir. Or he takes the position that he could ask the questions including the questions in regard to membership past or present.
Felix Frankfurter: Under that statute?
J. Lee Rankin: Under -- yes.
Felix Frankfurter: Was that 1926 Act?
J. Lee Rankin: Under the 1926 Act, 211(a).
Felix Frankfurter: So, why from the Government's point of view, do we have to go beyond that?
J. Lee Rankin: Well, I -- it seems to me that you have to take into control that denying a passport takes away his right to travel. And if that's a constitutionally protected right, then you have to see whether the two together are within the constitutional requirements of the Fifth Amendment of due process.
Felix Frankfurter: Well, it doesn't say that the claim isn't -- that he can travel, though he's free to travel because if he be travels he might be violating a criminal law. I don't think we can again give a declaratory judgment on that basis because you can't enjoin the criminal prosecution even though it maybe among those unconstitutional provision.
J. Lee Rankin: Well --
Felix Frankfurter: So if you throw it -- it if the Secretary of State is justified. I --I'm not -- I really am positive. If the Secretary of State was justified under 211(a), not to grant a passport because the petitioner didn't ask the question, “Are you a member of the Communist Party?” Why doesn't that -- why is it not justified with the Secretary of State and how can get a remedy against that?
J. Lee Rankin: Well, their position is that that action on the part of the Secretary of State by reason of 1185, reaches in to deprive them of the right to travel because of the fact that -- that the two are tied together by the Congress. And therefore, by just the Act of denying a passport, the Secretary tells him he can't travel.
Felix Frankfurter: But if by statute he's allowed to make that denial then you must reach the question of constitutionality of that denial under the 1926 Act.
J. Lee Rankin: That's right.
Felix Frankfurter: And if under the 1926 Act, he may impose that condition to the granting of the passport and whatever consequences may it pull through under the statute is unconstitutional.
J. Lee Rankin: Well, of course their position is that we can't ask that question because the consequences that flow from it are taken away from a right that's protected by the Constitution.
Felix Frankfurter: Well, I understand that.
J. Lee Rankin: Its our position that we can ask a question that he hasn't answered the question, so we get down to this point where he hasn't exhausted his remedy by answering the question and that's how --
Felix Frankfurter: For me that all is limited to and defined by the scope and constitutionality of the Act of 1926.
J. Lee Rankin: Well --
William J. Brennan, Jr.: Mr. Solicitor, I asked you a question before lunch -- The Government's concession that the right to travel is a liberty protected by the Fifth Amendment.
J. Lee Rankin: That's correct.
William J. Brennan, Jr.: Carried with it the concession that this could not be defended that is this line of question as a method of controlling the right to travel could not be defended under the 1926 statute standing alone. I may -- perhaps, I must admit I understood you. I'm not sure that that is, may be defended constitutionally when read in connection with the -- with the congressional regulation as the right to travel found in 1185. Was I wrong in -- did I misunderstand you?
J. Lee Rankin: I'll try to answer the question.
William J. Brennan, Jr.: Yes.
J. Lee Rankin: If you -- if you construe that it's a question of whether you can deny or grant a passport whether the Secretary has that power, it's the Government's position that there isn't any question, but what he has it inherently and Congress has recognized and granted over a period of -- long period of years. But it's also the Government's position, we believe it's in this case that you can't disregard 1185 because that says that if you deny the passport over here, you take something away from the same time over here and that it would not be of something you take away is the constitutionally protected right --
William J. Brennan, Jr.: That's right.
J. Lee Rankin: That's right.
William J. Brennan, Jr.: Yes.
J. Lee Rankin: And so that we have to treat both statutes in common as Congress said as the measure of whether you have the right to travel under 8 -- 1185. It depends on whether or not you get a passport over here.
Felix Frankfurter: Mr. Solicitor -- if you had nothing but the Act of 1926 and the Government was here or here defending the right before issuing a passport that he should answer certain questions would the Government do one this year saying Secretary of State was authorized to ask those questions, the refusal and the constitutional justification of asking those questions leading to the denial of the passport. Of course, you would be taken away his rights to travel. You'll have to talk about that because if -- if you may condition his travel on having a passport or if you want the risk of going to jail and traveling without a passport, but by denying him a passport, you're interfering with his right of free locomotion.
J. Lee Rankin: Well, but there were times when granting or denying of the passport would not preclude you from traveling. It was a -- you could travel anyway without a passport during the history of our country and they were not the sanction that go with the provisions of the -- of the statutes.
Felix Frankfurter: What I'm saying is that the statute -- the criminal sanction, namely, that he may land in jail for violation of -- of criminal statute. I don't see how I can make a declaratory judgment that he can't be possibly because you can enjoin and approve a prosecution.
Earl Warren: Well, what -- what do you say he first got -- it was first required to have a passport in general?
J. Lee Rankin: Well --
Earl Warren: Was it before 1926?
J. Lee Rankin: There were several periods during our history of the different periods when the -- the passport was required, but during the entire period that's involved in this case, he had to have a passport in order to travel because the statute required and there was criminal sanctions if he didn't. Now, we in our footnote in our brief, we call attention to the Court the fact that we could claim that it -- what the argument could be made that under the statute in regard to the power of the Secretary to grant or deny a passport, that you didn't have to consider 1185 because all it was really involved here was that you didn't file the affidavit or you didn't make the oath. And therefore, the Secretary was authorized regardless of anything else not to grant the passport. But we felt that that didn't dispose of this case properly for the Court. And the Court would have to go further to examine the effect of that Act and if you say to a man that unless you get a passport, you can't travel and he's got the right to travel, constitutionally protected right to travel subject to whatever due process and rights in the Fifth Amendment, whatever lawful limitations there are under the Fifth Amendment. Then, you have to go on to examine that question and that it isn't as simple as it would be for the Government if we just said, “It all depends on Sectio 211(a),” and if you find it, the passport is probably denied, that's all there is to it.
Speaker: Well, as I understood the petitioner's argument, it was that if you took the 1926 Act along 211(a), that that did not authorize the asking of these questions and did not authorize the request with the noncommunist affidavi. But, the section merely related to questions and regulations that were incident to the mechanical procedural problem of issuing a passport. Now, that is their position. I understand your answer to that is you don't stop. It was in the four corners of the 1926 Act. You say you can't read that Act alone. It has to be read in conjunction with 1185, the Presidential Proclamation, et cetera. And when you put those two Acts together even though what they say might have been true, if 1926 Act stood alone, that Act must be read in conjunction with these other Acts and then you get the position you take.
J. Lee Rankin: That's -- that's --
Speaker: Isn't that your --
J. Lee Rankin: -- position.
Speaker: position.
J. Lee Rankin: That' correct.
Felix Frankfurter: But didn't you ask of me that under the 1926 Act that he had nothing else the Secretary of State can ask -- ask of his affidavit and ask this question.
J. Lee Rankin: Well, Mr. Justice, I -- I think I --
Felix Frankfurter: There is -- there is no record in any of that.
J. Lee Rankin: No, I think I did answer that that way but I want to put a caveat, that I feel, in frankness with the Court, it isn't a proper solution or approach to this case
Felix Frankfurter: Well, I understand that.
J. Lee Rankin: -- not to reach in to what the effect --
Felix Frankfurter: Correct.
J. Lee Rankin: -- of 1185 --
Speaker: I -- I don't understand the answer and I thought you'd misspoken yourself, which I gather is the fact now that we've force this out.
Felix Frankfurter: But you don't -- do not say you've misspoken yourself.
J. Lee Rankin: Oh, what I --
Felix Frankfurter: You could use it. I'm just putting all items, I want you to answer.
J. Lee Rankin: I'm sorry if I have confused you and I took it --
Felix Frankfurter: It's a very simple question I'm asking. Under the 1926 Act, if the Secretary of State has nothing else for this -- for the assertion of authority, could he have asked these questions and demanded this affidavit? Is that question acceptable of an answer?
J. Lee Rankin: Well, only if I say further that as long as the Section 1185 was on the books. I think you have to face up to what effect it might have if you deny the passport.
Speaker: Or could you put the answer this way that if all you had was the 1926 Act, you'd be prepared to defend your position.We don't have to get to that without going to the next subject with him because you've got these other statutes.
J. Lee Rankin: Well, my answer to that question, Mr. Justice Harlan, is that that 1185 helps and hurts as far as the Government is concerned. In that, it puts to him sanctions that we have to deal with -- with regard to a constitutional problem that if we just had 211(a), it wouldn't be there.
Felix Frankfurter: It would be there if your answer is correct that the -- that the Secretary of State may exact an affidavit because then the petitioner were to say, in exacting his affidavit, you're interfering with my freedom of travel because you are making me disclose some privacy that I do not want to disclose. That is argument.
J. Lee Rankin: I overlooked that particular sanction that he would be complaining about, but he has a more difficult and more burdensome sanction that he is complaining about here that he might have all these penalties to cover.
Leonard B. Boudin: If Your Honor please. I must say that I gave the Court too hasty in examination of 1185 upon which the Solicitor General relies and will the Court look at page 61 and see from the language there --
Earl Warren: In your brief?
Leonard B. Boudin: Of my brief. Thank you, sir. Whether there is any authority to the Secretary of State in 1185 on page 61 of my brief to control travel, to set up systems of classes of people who may not travel. And if there is such an authority, are there any standards in the language of 1185? All it says is under such rules of the President, it shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter the United States unless he bears a valid passport. And I submit to the Court that that language does not say that the Secretary can decide who can travel and if they did say that the Secretary could decide who could travel, it would be an obvious unlawful delegation because there is no standard in that language, not a single standard. It must be some standard. Here, we have no authority and no standard and merely suggest --
Speaker: This is constitutionality you're (Voice Overlap) --
Leonard B. Boudin: This is also interpretation. It would be constitutionality if it said the second -- alone if the Secretary can restrain travel, but it narrowly doesn't say that the Secretary can restrain travel. But it says, at the Secretary -- it does not give any standards upon which the Secretary might act. Well, I've been obscure, Your Honor, because I want to clarify my position. If 1185 said the Secretary has the power to control travel with determined classifications, there would be authority. And then, Your Honors would have to look at that statute and say, “Are there any standards?” But since the statute does not contain even that authority, you may not reach this constitutional problem. (Voice Overlap) --
Speaker: (Voice Overlap) -- The statute is sufficiently ambiguous so that as a matter of construction we can avoid the constitutional issue.
Leonard B. Boudin: I think so.
Speaker: That -- that's your --
Leonard B. Boudin: And there is a reason, Your Honor why that can be done here. In 1952 when this statute was passed, there was in effect a determination by Congress as to the kind of people who were required, who could not have passport, namely members of Communist Action organization. But with the end of the war, emergency approaching under the Act of 1941, although Congress said that certain people couldn't have passports, they could nevertheless, have traveled because there was no statute except for the emergency statutes of the past which would make a passport a necessity. Therefore, if Congress wanted to prevent, wanted to implement the Act of 1950, this was the way in which it could be done. The Act of 1950 says this group cannot have passports and the Act of 1952 says, “You cannot leave the country without a passport.” This has nothing to do with the Secretary of Power.
William J. Brennan, Jr.: In subsection (b), you recognized in the provision, "subject to such limitations as the President may authorize and prescribe," no delegation of authority to the Secretary to promulgate regulations?
Leonard B. Boudin: Yes. And may I also tell you --
William J. Brennan, Jr.: I just wanted to ask a question, might the President himself set lip the identical regulations under this statute?
Leonard B. Boudin: No, because there I think you would have an equal, unlawful delegation because they are on those standards regarding the President.
William J. Brennan, Jr.: I'd understand the term it, but not on -- not under the absence of authority in the statute to the President.
Leonard B. Boudin: No, because I would say that there is no authority even to the President that 1185 to control travel.
Felix Frankfurter: Let me ask you Mr. Boudin.
Leonard B. Boudin: Yes, please.
Felix Frankfurter: Do you deny with all your prayers squarely deny -- do you deny that the Secretary that you deny the constitutional power of the Secretary of State to withhold issuing a passport whatever good it may do to pursue that?
Leonard B. Boudin: Yes, I say that the Secretary of State --
Felix Frankfurter: Don's say as though --
Leonard B. Boudin: I -- I'd say the Secretary of State can't deny a passport because the man won't --
Felix Frankfurter: I'm not talking about if he has no delegated authority.
Leonard B. Boudin: Yes, yes.
Felix Frankfurter: His constitution moving on but the Congress of the United States can give the Secretary of State the power to deny me a passport? I'm assuming that-you say that an American citizen has the right to tra vel without having a document, whatever he may get out of that -
Leonard B. Boudin: Well, may I answer that question, Your Honor --
Felix Frankfurter: That's why I put it.
Leonard B. Boudin: -- by -- yes.
Felix Frankfurter: I put it.
Leonard B. Boudin: Yes, exactly, by pointing out that we are not asking for a -- a document introducing us to a foreign power. The situation is different in 1955 and 1958. We will take any passport that is issued which identifies as -- as American citizens which we are and which other countries will then permit us to enter as a result of.
Felix Frankfurter: But you deny that the Secretary of State can satisfy himself before he issues that political document, as you call it, that you don't belong to the - that your client doesn 't belong to the Communist Party?
Leonard B. Boudin: I --I -- yes. Yes, I do but I don't agree that this is political document. Now, the Court of Appeals below as Your Honor will see from the opinion recognized that whatever the passport once was, it is today a requirement of movement.
Felix Frankfurter: Yes.
Leonard B. Boudin: It is no longer really a political document.
Felix Frankfurter: Maybe I missed something but You just said that you don't deny that you may be required to have a piece of paper from the Secretary of State accrediting you to a friendly nation. Do you deny that?
Leonard B. Boudin: No, I don't -- we are still in here for a piece of paper we're accredited.
Felix Frankfurter: It's what you inform.
Leonard B. Boudin: Now --
Felix Frankfurter: But still --
Leonard B. Boudin: -- we also --
Felix Frankfurter: -- but will you please --
Leonard B. Boudin: well --
Felix Frankfurter: -- will you please turn to your prayers?
Leonard B. Boudin: Yes, I see what my prayer is. My prayer asked for a passport.
Felix Frankfurter: Well, let's turn. Le's go and --
Leonard B. Boudin: On page 4 of the record, sir. We are asking for a passport and a passport as we construe it under the Act of 1926 which is not prescribed. The form of the passport is merely a certificate of identity that we are American citizens.
Felix Frankfurter: I don't care what you call it --
Leonard B. Boudin: That's right.
Felix Frankfurter: -- but it's something over the signature of the Secretary of State --
Leonard B. Boudin: Yes.
Felix Frankfurter: which has, as I have indicated, exactly the same language that it has had since-
Leonard B. Boudin: Oh, but it doesn't have to be, Your Honor. We aren't asking for any particular language. If the language is significant as a letter of introduction, we can do it without it. We simply want a document which is necessary in view of 1185 to leave the United States.
William J. Brennan, Jr.: In other words, you want a license to depart lawfully?
Leonard B. Boudin: Well, all we want is the license to depart. We're preventing from departing at the present time.
Felix Frankfurter: Well, then, you agree that the Government put the Congress of the United States to make conditions upon your reason to leave with that, is that right?
Leonard B. Boudin: I haven't said that they can make conditions, no, sir.
Felix Frankfurter: Well -- but your -- well, look at your decree.
Leonard B. Boudin: Yes.
Felix Frankfurter: You seem familiar with it. Look at it.
Leonard B. Boudin: I am.
Felix Frankfurter: Based on a judgment between that the plaintiff and the American citizens was entitled to a transport under the statute of the United States.
Leonard B. Boudin: That is correct.
Felix Frankfurter: Including the Passport Act of 1946.
Leonard B. Boudin: Yes.
Felix Frankfurter: Every language is more words to put in the conflict of something in our position. When you asked for a passport, I assumed you're asking for the kind of document that is issued under the seal of the State Department since 1789.
Leonard B. Boudin: We are not --
Felix Frankfurter: I'm not arguing that.
Leonard B. Boudin: if the -- if -- if -- may I continue? If the language of a passport which is used at the present time is regarded as a -- an introduction to a foreign power, then we don't need that language and our request for relief under the Passport Act 1926 is a request for that document which is necessary for us to leave the country.
Felix Frankfurter: Well, do you agree that constitutionally the Congress of the United States may provide that Mr. Kent and Dr. Briehl can't leave the United States without giving a document which amounts to (Inaudible) Do you agree to that?
Leonard B. Boudin: I don't know because that isn't my problem here, sir.
Felix Frankfurter: But I don't want your problem (Voice Overlap) --
Leonard B. Boudin: Well, my -- my problem is -- my problem is that they had imposed the condition to our lawful departure and that condition is a passport. As long as 1185 is on the book, requiring us to have a document of a certificate of identity or whatever we call it, we have a right to that certificate of identity. We cannot be deprived of it because we've exercised these rights of freedom of speech into dissociation.
Felix Frankfurter: Well, let me repeat my question.
Leonard B. Boudin: Please.
Felix Frankfurter: If you have a right to a cer tificate of identity and you must get it from the Secretary of State, you must either agree that the Congress may make such requirements upon my leaving this country, or you must say it's unconstitutional.
Leonard B. Boudin: I -- I think I can answer, Your Honor. We have not claimed that 1185 which required the passport as the condition for departure is unconstitutional. As we read if -- we don't have to meet that issue. 1185 thus state what the law is. You must have a passport to leave the country. We are saying that in view of that state of the law, as represented by 1185 which we're not attacking that we cannot reside as the passport regulations. The Secretary must give us a passport.
Felix Frankfurter: I must insist on pressing my (Voice Overlap) --
Leonard B. Boudin: Please.
Felix Frankfurter: You now agree that it is not beyond the constitutional power of the Congress of the United States, to condition on American citizen leaving this country to get some kind of piece of paper from the Secretary of State, is that correct?
Leonard B. Boudin: Yes. I have agreed to that, but I have also said if I may repeat that the Secretary may not condition the issuance of that departure. I bet Your Honor understands me --
Felix Frankfurter: I know in you --
Leonard B. Boudin: -- upon in improper conditions --
Felix Frankfurter: (Voice Overlap) -- I understand that you and I would agree that the Secretary of State can't be authorized by the Congress before issuing me passport to find out what my religion is.
Leonard B. Boudin: That's correct.
Felix Frankfurter: I understand that, but I -- I just want to make it clear that you're asked and by asking agree to the constitutional power to have the Secretary of State condition your leaving and mine on the granting of some kind of a piece paper --
Leonard B. Boudin: Yes, that's quite true.
Felix Frankfurter: Therefore, it gets down to what the conditions may be.
Leonard B. Boudin: I have -- we have no -- we -- we can't question the fact that for example, a motor vehicle bureau can require a -- an automobile license of a man.
Felix Frankfurter: No.
Leonard B. Boudin: We don't -- we don't question that.
Felix Frankfurter: No, I made such suggestion that is like a motor vehicle --
Leonard B. Boudin: I have -- I have --
Felix Frankfurter: Bureau can require an automobile license of a man. We don't question that.
Leonard B. Boudin: Perhaps we don't have to reach that point. And may I say to Your Honors have had a construction of 213, a construction of 211(a) which appears on page 59 of my brief, which is not supported by the language there. It was suggested here and I'm not clear whether the suggestion is still made by the Solicitor General. But under 211(a), the Act of 1926, which by the way has never been amended, Your Honors. The Act of 1926 was not amended by anything. That statute as is suggested by the Solicitor General at one point authorizes the Secretary to require an affidavit at the Communist Party membership and these other things. There is nothing in 211(a) if Your Honors will see it, which contains such an authority.And in those several cases in which non-Communist affidavit said that it was upheld by this Court aside from the fact that they were relatively precise affidavits. I have to use that term and not the kind of thing that was required here with the course of the examinations of Dr. Briehl and Mr. Kent. In all of those cases, whether it would Garner or ACA against Douds, we found that it was a legislative body that had made the determination of such an affidavit should be required. Here, there is no statute in the United States, which says that the Secretary of State can ask for an affidavit of that kind. Congress has not asked for such an affidavit. The Internal Security Act of 1950 doesn't ask for such an affidavit. Only the Secretary of State here has asked for that affidavit. They got a complete problem.