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Brief statement of facts
This case involved Rockwell Kent and other people who sued the Secretary of State for denying them travel passports on the basis of the fact that they held communistic associations and beliefs. Kent intended to travel to England where he was going to attend a meeting (Cooper, 2006 p.34) and he was denied the passport on the grounds that he was a communist and had for a long time been closely linked to the communist society.
The other issue that the state secretary raised was the refusal of the petitioners to supply an affidavit stating their close links with communists. Kent was informed that he had a right to an informal hearing before his passport could be issued and that he was also required to file an affidavit in which he would indicate he was a member of a communist society (Charles, 2009, p.34).
Kent declined to file the said affidavit arguing that it was unlawful and in violation of his constitutionally guaranteed rights. He argued that according to the laws governing matters of issuance of a passport, the only relevant issue was that of his citizenship and since that was not in contention he argued that other issues were not of any relevance to the department responsible for the issuance of passports.
The department responsible on the other hand argued that due process needed to be followed and that without Kent supplying them with an affidavit, his application for a passport would not be given any further consideration. It is then that Kent decided to sue the secretary of state for failing to issue him with a passport.
During this period, there was an Act that had been passed by the congress which required that any citizen should be offered a passport for travel to a foreign country incase a state of emergency was declared (Lee, 1961,p.45). Having examined all circumstances surrounding the matters at hand, the court held that the Secretary of State was not justified in denying passports to Kent and other petitioners.
Kent filed the matter in the District Court and made prayers for declaratory relief where he was praying the court to have the department in charge of issuance of passports reverse their decision and issue him with a passport. A summary judgment was entered in favor of the respondent and the petitioner decided to appeal.
Upon appeal, Kent’s case was heard together with that of another gentleman who was facing a similar predicament. During this hearing, the second applicant Briehl who was a psychiatrist raised three main issues.
Firstly, he raised the issue that the kind of affiliations he had politically were totally irrelevant to the issuance of his passport. He further argued that every citizen had been guaranteed the right to travel to any other foreign country regardless of his political affiliation. He also argued that incase he was accused of being involved in criminal activities it was upon the department in charge of issuance of passports to prove this.
Opinion of the court
The Court of Appeal which entertained the matter began by reversing the order made by the District Court. In arriving at this conclusion, the court took into consideration the Act of Congress of the year 1926 and paid attention to six provisions of the act (Sieghart, 1984, p.45).
The first provision of the act stated that every citizen has a right to travel and this right cannot be deprived unless under the due process that is provided by the constitution in the Fifth Amendment.
The Act further states that the power of the secretary to deny issuance of passports to any citizen which is purely discretional is limited to only when an applicant is not an American citizen or if a citizen of America has been involved in activities that are criminal in nature (Whiteman & Hackworth, 1963, p. 23).
The court, while recognizing the fact that the secretary of state had discretion to deny issuance of passport to any applicant whom he deemed as not having satisfied all requirements, he was supposed to remain within the parameters of law that governed the issuance of passports.
The court was also of the opinion that incase any person’s travel to a foreign country needed any kind of regulation, then this ought to be done pursuant to the laws that govern the issuance of passports. The court felt that much as the congress had left the discretion of issuance of passports to the secretary, that discretion needed to be exercised within the parameters of the law and needed not be abused.
The court further noted that the Immigration and Nationality Act which gave the powers to issue passports to the secretary of state did not give him (the secretary) the power to withhold or refuse an application of any person based on their faith, political affiliations or associations.
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Having examined all the relevant provisions of this Act which were applicable to this case, the court held that there was no valid reason for the Secretary of State to deny passports to complainants. Leonard Boudin and Victor Boudin held brief for the petitioners while David Rein and Victor Rabinowitz held brief for the respondents.
The opinion of the court was given by Justice Douglas. The first issue that the court noted was the decision made in Urtetiqui v. D’Arbel regarding issuance of passports.
According to the outcome of this case, there are no systematic laws governing the issuance of passports other than the fact that the applicant needs to prove to the secretary of state that he (the applicant) is a citizen of America. The secretary of state is however not expected to carry any form of inquiry, judicial or otherwise to ascertain the citizenship of an applicant.
The case was heard by a bench of 9 judges and the judgment was on a ratio of 5:4 with 5 concurring and four dissenting. This case involved the interpretation of the constitution as read together with legislations that have been enacted by the congress. Usually, when the congress is enacting laws, they must be reflective of the spirit of the constitution.
This is because any law that tends to go against the provisions of the constitution is null and void up to the extent of its inconsistency.
Therefore, the court found that in the spirit of the constitution, the secretary of state had gone against the provisions of the laws governing the issuance of passports. The petitioners were therefore given declaratory relief where the department in charge of issuance of passports was ordered to reverse their orders.
Charles, S. (2009). Understanding law for public administration. New York: Jones & Bartlett Learning.
Cooper, P. (2006). Public law and public administration. London: Thomson/ Wadsworth.
Lee, L. (1961). Consular law and practice. California: Stevens.
Sieghart, P. (1984). The international law on human rights. New York: Oxford University Press.
Whiteman, M. & Hackworth, G. (1963). Digest of international law, Volume 15. California: United States department of state.