Mark Pestronk
Q: Some of my agency's Muslim American clients are afraid of traveling abroad, even though they are American citizens. I told them that they have nothing to worry about because the president's policies only apply to noncitizens who are living or traveling abroad. Is that correct? Although I know that I shouldn't be giving legal advice about immigration law, my clients would not make any travel arrangements through us, and they would definitely stay home, unless I gave them some assurance that they are not in danger.
A: Although it is true that the president's Jan. 27 order (if implemented) does not apply to U.S. citizens, the law enables the White House to issue an order that would restrict certain U.S. citizens from returning home under certain circumstances.
We can start with the basic proposition that the U.S. Constitution provides a right to travel abroad. In the 1958 case of Kent v. Dulles, the Supreme Court held that, "The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without the due process of law under the Fifth Amendment. ... Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad ... may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values."
In that case, the court held that a passport could not be denied merely because of a citizen's political beliefs, especially in cases where the Congress did not give the secretary of state authority to do so.
The Kent case was probably the high-water mark for the freedom to travel. The modern trend of court decisions has been to uphold passport revocations.
For example, in Haig v. Agee, the Supreme Court in 1981 held that the secretary of state has authority to revoke a passport on the grounds that the holder's activities in foreign countries were causing or were likely to cause serious damage to national security or the foreign policy of the U.S.
Today, federal law expressly enables the State Department to revoke any citizen's passport for at least the following reasons, in addition to national security or foreign policy considerations: the passport was obtained or used illegally or fraudulently, nonpayment of child support, a seriously delinquent tax debt, certain drug convictions and conviction of sex tourism.
In the most recent case that I found, the government revoked the passport of a U.S. citizen while he was in Yemen on the grounds of alleged passport fraud. While a federal judge in Oregon took issue with the dearth of evidence and absence of a meaningful hearing, the court did not have any trouble with the proposition that a citizen's passport can be taken away while he is abroad.
So it would probably be constitutionally permissible to revoke a citizen's passport even while he is traveling outside the country, as long as the citizen is afforded a hearing and as long as the purpose is to protect national security or foreign policy, or for other purposes permitted by law.
In addition, as the United States Court of Appeals for the 9th Circuit stated in its recent decision upholding the lower court's restraining order, even an executive order based on national security grounds would have to be supported by at least some factual evidence. Finally, such an order would have to have a purpose other than religious discrimination or preference. So, for example, an executive order that revoked the passports of Muslim Americans traveling abroad, on the grounds that they were Muslim, would certainly be stuck down as a violation of the Constitution.