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upon receipt of a notice by the consular provisions of this Act, or the regulations officer from the Attorney General of issued thereunder, or (3) the consular the giving of a bond with sufficient officer knows or has reason to believe surety in such sum and containing such that such alien is ineligible to receive a conditions as the consular officer shall visa or such other documentation under prescribe, to insure that at the expira- section 212, or any other provision of tion of the time for which such alien law: Provided, That a visa or other has been admitted by the Attorney documentation may be issued to an alien General, as provided in section 214(a), who is within the purview of section or upon failure to maintain the status 212(a) (7), or section 212(a) (15), if such under which he was admitted, or to alien is otherwise entitled to receive a maintain any status subsequently ac- visa or other documentation, upon quired under section 248 of the Act, receipt of notice by the consular officer such alien will depart from the United from the Attorney General of the giving States." of a bond or undertaking providing indemnity as in the case of aliens admitted under section 213.

NUMBER 2

EXCERPTS FROM THE ANNUAL REPORT OF THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES (1963)

II. AREA RESTRAINTS ON TRAVEL

It is recommended that legislation be adopted explicitly authorizing the President to regulate travel by U.S. citizens to specific areas or countries, at such times as he finds that the national interest requires such action, and making the violation of such restraints punishable as an offense against the United States.

The need for such legislation appeared as a result of intensive investigation and a series of hearings undertaken by this committee in 1963 concerning the proCastro and Communist propaganda activities of a substantial number of U.S. citizens who had traveled to Cuba during the previous 2 years apparently in contravention of law and regulations. (See "Violations of State Department Trave Regulations and Pro-Castro Propaganda Activities in the United States," pts. 1. 2, 3, and 4, hearings before the Committee on Un-American Activities, U.S. Government Printing Office, 1963.)

This committee recommendation is not based on the belief that the President of the United States does not possess power to impose general prohibitions or restrictions on the travel of Americans to or within certain areas of the world Rather, it is based primarily on evidence, developed in the committee's abovementioned hearings, that there is need to strengthen the existing law (sec. 1185(b, title 8, United States Code) making violations of Presidential travel restrictions a punishable offense.

The President's power to regulate travel to specific areas under certain condi tions derives from his implied constitutional duty to conduct the foreign affair of the United States and from his position as the chief executor of the activities of the Federal Government in the field of international relations and for the de fense of the Nation and the prevention of war. This power has been repeatedly claimed and exercised by the President in the course of our history.

Although the President has frequently exercised the power to impose ares restraints on travel, this power had not been tested in the courts or made the subject of judicial determination until recently. In three noteworthy cases decided by the U.S. Court of Appeals for the District of Columbia Circuit during the last few years, the Federal judiciary has had occasion to pass upon the constitutionality of the exercise of this power. In these cases- -Worthy v. Herter.

270 F. 2d 905, decided June 9, 1959; Frank v. Herter, 269 F. 2d 245, decided July 6, 1959; and Porter v. Herter, 278 F. 2d 280, decided April 28, 1960-the exercise of the power has been upheld, and in all three cases certiorari was denied by the U.S. Supreme Court (361 U.S. 918). In view of the significance of these cases to the legislative problems, they deserve exposition.

Worthy v. Herter

The opinion in this case was written by Chief Judge Prettyman for a unanimous panel of the court of appeals, consisting also of Justice Burton (sitting by designstion) and Circuit Judge Miller.

William Worthy, Jr., was a newspaperman, duly accredited by the AfroAmerican Newspapers, the New York Post, and the Columbia Broadcasting System. A passport had originally been issued to him in 1955, containing à restriction stating that it was not valid for travel to five named areas under control of authorities with which the United States did not have diplomata relations, including portions of China, Korea, and Vietnam under Communis control, and also a restriction against travel in Hungary. Under this 1955 passport, despite the restrictions, Worthy had nevertheless traveled extensively in both Communist China and Hungary. In 1957 Worthy applied for a renewal of this 1955 passport. He was asked whether he would make a commitment to abide these same restrictions in the 1957 renewal for which he applied. Worthy declined to make such a commitment, and the application for renewal of passport was refused.

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The refusal of the passport did not rest upon Worthy's writings, character, or membership in any organization. This the court made clear, and thus distinguished the issue in this case from that involved in Kent v. Dulles, hereafter noted. The present case was an application of the general policy of refusing Government sanction to travel by U.S. citizens in certain areas of the world presently under Communist control, deemed to be trouble spots, where the presence of American citizens and the official approval of their presence would impede the execution of American foreign policy in relation both to those countries and to other countries.

The court unanimously held that such designation of restricted areas was within the power and authority of the Executive, for the following reasons:

(1) The designation of certain areas of the world as forbidden to American travelers falls within the power to conduct foreign affairs. The imposition of such restrictions is an instrument of foreign policy. "The essence of the conduct of foreign affairs is the maintenance of peace, the prevention of war. The Constitution places that task of prevention in the hands of the Executive. The two correlative powers, to conduct war and to prevent war, are Executive functions under our Constitution." The court concluded that the President has ample power to impose these restrictions under the Constitution itself, and apart from statute.

(2) Although there is ample power under the Constitution itself to impose geographical restrictions, there is also a statutory power to designate restricted areas under section 1185(b) of title 8, United States Code, the Immigration and Nationality Act, and the act of July 3, 1926 (22 U.S.C. 211a).

(3) As to Worthy's claim that the right to travel is protected by the Constitution, being a part of the right to liberty, the court answered this claim in a lucid passage which deserves to be set forth in full, as follows:

"The right to travel is a part of the right to liberty, and a newspaperman's right to travel is a part of the freedom of the press. But these valid generalizations do not support unrestrained conclusions. For the maintenance and preservation of liberty, individual rights must be restricted for various reasons from time to time. In case of a clear and present danger to the national security, even so generally unrestrictable a right as speech can be restricted. In case of a reasonably anticipated threat to security or to law and order, many acts by individuals can be restricted. An assembling mob bent on disorder can be dispersed. A man with a contagious disease can be locked in his house. Potentially dangerous actions must be restricted in order to prevent harm to others. So we have sanitation, fire, building and speeding regulations.

"Liberty itself is inherently a restricted thing. Liberty is a product of order. There is no liberty in anarchy or in chaos. Liberty is achieved by rules, which correlate every man's actions to every other man's rights and thus, by mutual restrictions one upon the other, achieve a result of relative freedom. The mere day-to-day maintenance of the order which insures liberty requires restrictions upon individual rights. Some actions, neither harmful nor potentially dangerous, must be restricted simply for the sake of good order in the community. So we have parking, traffic and zoning regulations and rules of court.

"No individual may take whatever he pleases, and so all others are free to enjoy their possessions. One man may not assault another with whom he disagrees, and this restriction protects the freedom of all to speak and live peacefully. One may not spread vicious lies about another, and so all are free to enjoy their good reputations. Every person is forbidden to join with his competitors to drive another person out of business, and so all are free to pursue their trades and buy products at reasonable prices. Everybody's liberty is restricted by prohibitions against driving recklessly, spreading disease, and leaving hidden dangers on property, and so the whole community is free to enjoy health. One cannot trample his neighbor's flowerbeds, or even trespass on his lawn. Even in a neighborhood community, every man's right to roam is drastically restricted. A man who asserts his own uninhibited freedom to go where he pleases is a menace and is quickly put in his place. He may not park where he pleases, or drink where he pleases, or spit where he pleases. In the community the police take care of these matters, and in so doing the officers act as servants of the rest of the community; they are the government.

"Freedom to worship as each one chooses is restricted in some ways. Worship by human sacrifice is forbidden. A member of one religion cannot interrupt the services of another religion in order to worship in his own way. Through this restriction all have freedom to worship as they choose.

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"Freedom of the press bears restrictions. It does not include the right to publish what another has registered with the copyright office. Merely because a newsman has a right to travel does not mean he can go anywhere he wishes. He cannot attend conferences of the Supreme Court, or meetings of the President's Cabinet, or executive sessions of committees of the Congress. He cannot come into my house without my permission, or enter a ball park without a ticket of admission from the management, or cross a public street downtown between crosswalks. He cannot pass a police cordon thrown about an accident, unless he has a pass from the police. A newsman's freedom to travel about is a restricted thing, subject to myriad limitations.

"The peace loving have rights. Those who recognize the fundamental necessities of liberty as a delicate product of order have power to protect themselves and their liberty. The liberty of everyone, law-abiding citizen and criminal alike, is involved in the maintenance of order and is threatened when disorder brings either the necessity or the opportunity for force to replace correlated rules of conduct. Such a threat may easily arise from conditions in foreign lands. The people have a right to protect their liberty, no matter whence the threat. "Indeed it is quite clear that those who cry the loudest for unrestricted individual freedom of action would be the loudest in bemoaning their fate if their plea were granted. The same release from constituted authority would set free persons so powerful, so ruthless, so bent on autocratic control that no newsman would have any liberty whatever. The customary prompt transformation of unrestrained liberty into dictatorship is one of the poignant lessons of history. These pleas for unrestricted individual freedom seem to us to be made upon a firm assumption that not too many people will be granted such liberty and not too much liberty in any event. Worthy himself says he does not plead for an unrestricted liberty for all people. His plea is for his own liberty to what he happens to choose.

"So we conclude on the point that the right to travel, like every other form of liberty, is, in our concept of an ordered society, subject to restrictions under some circumstances and for some reasons."

Frank v. Herter

This case was decided for the court of appeals by Judges Bazelon, Fahy, and Burger.

This decision is a PER CURIAM decision of one paragraph, in which the court stated that the questions involved were decided by this court in Worthy v. Herter and that, therefore, the complaint of Waldo Frank to remove from his passport a travel restraint clause as to Communist China and to enjoin the enforcement of sanctions against the plaintiff was dismissed upon a motion of the Secretary of State for summary judgment.

However, there is a concurring opinion by Judge Burger, who felt that there was something more involved in this appeal of Frank than was involved in the Worthy case. Judge Burger pointed out that the issue in the Worthy case related only to the power of the President to impose an area restriction on travel of U.S. citizens, whereas in the Frank case an additional issue was presented, namely: Conceding the Secretary's power to limit travel to Communist China, was the formula and criteria prescribed for the selection of a limited number of news correspondents who were permitted to travel to Communist China unconstitutionally discriminatory as to Frank?

It appeared that Frank was a teacher and lecturer, who had an invitation to lecture in Communist China, and sought removal of a travel restraint clause in a duly issued passport which he held, restraining travel to that country. The passport held by Frank-like all those issued by the State Department in recent years contained the following provision:

"This passport is not valid for travel to the following areas under the control of authorities with which the United States does not have diplomatic relations: Albania, Bulgaria and those portions of China, Korea and Vietnam under Communist control."

In support of his complaint seeking removal of the restraint, Frank made three contentions: (1) The Secretary of State had no statutory authority to prevent U.S. citizens from traveling to China; (2) the travel restrictions are a violation of his first amendment rights of free speech and press and the deprivation of his right to earn a living by activities requiring travel; and (3) the Secretary's action in granting travel rights to 25 or 30 representatives of various news services, while

denying the same rights to him individually, was an unreasonable discrimination in violation of due process under the fifth amendment.

Frank's pleadings described him as a writer, scholar and teacher, who has lectured here and abroad and who wrote for 20 Latin American papers. He asserted that he had an invitation to lecture at the University of Peking.

The Secretary of State in reply responded as he did in Worthy v. Herter: (1) That an essential feature of U.S. policy toward world communism generally and Communist China in particular is to withhold recognition, de facto and de jure, of that regime; (2) that in the implementation of that policy, travel of U.S. citizens to the China mainland has been prohibited; (3) that the Executive's power to conduct foreign affairs springs from the inherent powers of a sovereign, confirmed by the Constitution and implemented by joint action of the President and Congress in statutes; and (4) that in implementation of its policy, the Secretary has developed a formula to permit a limited number of news-gathering agencies to designate representatives to receive passports to Communist China, the agencies being selected on the basis of established past interest in foreign news coverage. Judge Burger said that the first two contentions of Frank were disposed of in Worthy v. Herter, but that the challenge to the Secretary's action as being discriminatory is not necessarily controlled by the Worthy case. Judge Burger then dealt with the charge of unconstitutional discrimination. He declared that the Secretary's decision relating to the manner of selection of correspondents to be afforded travel privileges to China is a political decision not subject to judicial review unless it appears that the decision of the Secretary was so arbitrary as to render the basis of the choice discriminatory:

"If, for example, the choice was limited only to Democrats or only to Republicans, obviously that would be improper and would fall. But judicial review even of the formula of selection is narrow and it is limited to determining whether the basis of the choice bears some rational relationship to the ends to be served. The distinction made between news agencies with a demonstrated interest in foreign news coverage and individual reporters must have some relevance to the purpose to be achieved."

In this case the Secretary invited each news-gathering agency with a demonstrated interest in reporting foreign news to apply for leave to go to the China mainland and specifically set as an eligibility criterion the maintenance of at least one full-time correspondent overseas. Judge Burger said:

"Our Government has decided to try out this program of allowing some news correspondents to go to Communist China on an "experimental and temporary basis" because presumably, as a calculated risk, in the conduct of foreign affairs it may help our ultimate objectives of world peace and stability, reduction of tensions, and resistance to communism. In such an experiment the political branches of the government must be allowed wide latitude in carrying out its policy."

Judge Burger then said it was not the duty of the court to decide whether the Secretary of State had developed the best formula for this program, but to decide merely whether he had exceeded his authority or had acted discriminatorily. Judge Burger found that the formula established for the selection of a limited number of correspondents was not discriminatory and he therefore concurred in the judgment dismissing the complaint.

Porter v. Herter

This appeal was decided by Justice Burton (sitting by designation) and Circuit Judges Danaher and Bastian, in a brief PER CURIAM decision.

Porter was a Member of Congress, representing the Fourth Congressional District of the State of Oregon, who on August 7, 1958, was issued a passport on which appeared a restriction identical to that contained in Frank's passport and previously quoted. On June 10, 1959, Porter applied to the Department of State for permission to visit Red China, asserting.

"A Member of Congress has a right to go anywhere in the world to do his duty as a U.S. legislator as he sees it, except in time of war or emergency. Any other policy would seem to be an unconstitutional breach of the separation of powers.' Porter's application was denied. He then instituted suit in the district court asserting that the Secretary's action was in violation of his rights under the Passport Act of 1926 and the Constitution of the United States. He asked for an injunction to restrain the Secretary from withholding passport facilities and for an order compelling the Secretary to remove the limitation upon his use of the passport for travel to China.

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