Haig v. Agee, 453 U.S. 280 (1981)
Haig v. Agee
No. 883
Argued January 14, 1981
Decided June 29, 1981
453 U.S. 280
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
Syllabus
Respondent, an American citizen and a former employee of the Central Intelligence Agency, announced a campaign "to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating." He then engaged in activities abroad that have resulted in identifications of alleged undercover CIA agents and intelligence sources in foreign countries. Because of these activities the Secretary of State revoked respondent’s passport, explaining that the revocation was based on a regulation authorizing revocation of a passport where the Secretary determines that an American citizen’s activities abroad "are causing or are likely to cause serious damage to the national security or the foreign policy of the United States." The notice also advised respondent of his right to an administrative hearing. Respondent filed suit against the Secretary in Federal District Court, seeking declaratory and injunctive relief and alleging that the regulation invoked by the Secretary has not been authorized by Congress and is impermissibly overbroad; that the passport revocation violated respondent’s freedom to travel and his First Amendment right to criticize Government policies; and that the failure to accord him a pre-revocation hearing violated his Fifth Amendment right to procedural due process. Granting summary judgment for respondent and ordering the Secretary to restore respondent’s passport, the District Court held that the regulation exceeded the Secretary’s power under the Passport Act of 1926, which authorizes the Secretary to
grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States . . . under such rules as the President shall designate and prescribe. . . .
The Court of Appeals affirmed, holding 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, and that no such authority had been shown.
Held: The 1926 Act authorizes the revocation of respondent’s passport pursuant to the policy announced by the challenged regulation, such policy being "sufficiently substantial and consistent" to compel the conclusion that Congress has approved it; and the regulation is constitutional as applied. Pp. 289-310.
(a) Although the Act does not, in express terms, authorize the Secretary to revoke a passport or deny a passport application, neither does it expressly limit those powers. It is beyond dispute that he has the power to deny a passport for reasons not specified in the statutes, and, as respondent concedes, if the Secretary may deny a passport application for a certain reason, he may revoke a passport on the same ground. Pp. 289-291.
(b) In light of the broad rulemaking authority granted in the Act, the consistent administrative construction of it must be followed by the courts, absent compelling indications that such construction is wrong. This is especially so in light of the fact that the statute deals with foreign policy and national security, where congressional silence is not to be equated with disapproval. Pp. 291-292.
(c) Absent evidence of any legislative intent to repudiate the consistent administrative construction of the prior and similar 1856 Passport Act as preserving the nonstatutory authority of the President and Secretary to withhold passports on national security and foreign policy grounds, it must be concluded that Congress, in enacting the 1926 Act, adopted such construction. Moreover, the Executive has consistently construed the 1926 Act to work no change in prior practice. Pp. 292-300.
(d) A 1978 statute making it unlawful to travel abroad without a passport even in peacetime and a 1978 amendment to the 1926 Act providing that "[u]nless authorized by law," in the absence of war, armed hostilities, or imminent danger to travelers, a passport may not be geographically restricted, are weighty evidence of congressional approval of the Secretary’s interpretation of his authority to revoke passports, particularly as set forth in the challenged regulation. Pp. 300-301.
(e) An administrative policy or practice may be consistent even though the occasions for invoking it are limited. Although a pattern of actual enforcement is one indicator of Executive policy, it suffices that the Executive has openly asserted the power at issue. Kent v. Dulles, 357 U.S. 116, distinguished. Pp. 301-303.
(f) The protection accorded beliefs, standing alone, is very different from the protection accorded conduct. Here, beliefs and speech are only part of respondent’s campaign, which presents a serious danger to American officials abroad and to the national security. Pp. 304-306.
(g) In light of the express language in the challenged regulation, which permits revocation of a passport only in cases involving likelihood of "serious damage" to national security or foreign policy, respondent’s constitutional claims are without merit. The right to hold a passport is subordinate to national security and foreign policy considerations, and is subject to reasonable governmental regulation. Assuming, arguendo, that First Amendment protections reach beyond our national boundaries, respondent’s First Amendment claim is without foundation. See Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716. To the extent the revocation of respondent’s passport operates to inhibit him, it is an inhibition of action, rather than of speech. And, on the record of this case, the Government is not required to hold a pre-revocation hearing, since where there is 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. The Constitution’s due process guarantees call for no more than what was accorded here: a statement of reasons and an opportunity for a prompt post-revocation hearing. Pp. 306-310.
203 U.S.App.D.C. 46, 629 F.2d 80, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 310. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 310.