Haig v. Agee

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Haig v. Agee, 453 U.S. 280 (1981), was a United States Supreme Court case that upheld the right of the executive branch to revoke a citizen's passport for reasons of national security and the foreign policy interests of the U.S. under the Passport Act of 1926 .

The case involved Congressional delegation of authority over control of passports and the right to international travel. Philip Agee was an ex-Central Intelligence Agency (CIA) officer living overseas who in 1974 declared a "campaign to fight the U.S. CIA wherever it is operating" and revealed the identities of several CIA officers resulting in violence against them. The Secretary of State 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 for the District of Columbia

affirmed that decision. The Supreme Court reversed the lower court, holding that the broad discretion accorded the executive branch in matters of national security and foreign policy requires that the Passport Act of 1926 (currently codified at 22 U.S.C.  § 211a et seq.) should be interpreted as granting the power to revoke a passport when necessary for national security.

Contents

• 1 Facts of the case

• 2 Majority opinion

• 3 Concurrence

• 4 Dissent

• 5 See also

• 6 References

• 7 External links

Facts of the case

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Philip Agee, an American citizen, was employed by the Central Intelligence Agency from 1957 to 1968, holding key positions in the division of the Agency responsible for covert intelligence gathering in foreign countries. In 1974, Agee announced in London that he was launching a "campaign to fight the United States CIA wherever it is operating" and intended "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 in foreign countries as undercover CIA agents, employees, or sources. They divulged classified information, violated Agee's express contract not to make any public statements about Agency matters without prior clearance by the Agency, and prejudiced the ability of the United States to obtain intelligence. They were followed by episodes of violence against the persons and organizations identified.

In December 1979, Secretary of State Cyrus Vance revoked Agee's passport and delivered an explanatory notice to Agee in West Germany, where he was living. It 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 that he had a right to an administrative hearing. It 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.

A divided panel of the Court of Appeals affirmed the district court. 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, citing _Zemel v. Rusk _ (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 it 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 in the case, then called Muskie v. Agee, and stayed the judgment of the Court of Appeals until its disposition of the case.

Majority opinion

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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 trav

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