Haig v. Agee
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| Haig v. Agee | ||||||||||
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| Holding | ||||||||||
| The Supreme court held that, given the broad discretion accorded the executive branch in matters of national security and foreign policy, the Passport act of 1926 should be interpreted as granting the power to revoke a passport when necessary for national security. | ||||||||||
| Court membership | ||||||||||
| Chief Justice: Warren E. Burger Associate Justices: William J. Brennan, Jr., Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis F. Powell, Jr., William Rehnquist, John Paul Stevens |
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| Case opinions | ||||||||||
| Majority by: Burger Dissent by: Brennan Joined by: Marshall |
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| Laws applied | ||||||||||
| 5th Amendment, Passport Act of 1926 | ||||||||||
Haig v. Agee, 453 U.S. 280 (1981), was a Supreme court cases discussing the right to foreign travel. Philip Agee was an ex-CIA agent who in 1974 declared a "campaign to fight the U.S. CIA wherever it is operating." After Agee outed several CIA officers resulting in violence against these officers, the secretary of state at the request of the President revoked Agee's passport in 1979. Agee sued, alleging the secretary had denied him due process under the Fifth Amendment, had deprived him of "liberty" (the 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 affirmed. The Supreme court held that, given the broad discretion accorded the executive branch in matters of national security and foreign policy, the Passport act of 1926 should be interpreted as granting the power to revoke a passport when necessary for national security.
The Court found that the Executive had historically been vested with "sole discretion" over passports relating to issues of national security in foreign policy. Unlike in Kent v. Dulles (finding a grant of only power over passports of criminals and non-citizens) and Zemel v. Rusk (finding a grant of power to prevent access to restricted areas, e.g. Cuba) the power to exercise control of passport in matters of national security and foreign policy has been exercised exclusively, if infrequently, by the executive branch. Furthermore, Agee's actions amounted to more than speech so that denial of his passport was not protected under the First Amendment (see Aptheker v. Secretary of State). Finally, only a post revocation hearing and a statement of reasons is required for due process when a passport is revoked due to matters of foreign policy and national security.
Blackman concurred, stating that he believes this case has changed the standards articulated in Zemel v. Rusk and Kent v. Dulles sub silencio.
Brennan joined by Marshal dissent. They find that this case strays from the precedent set by Zemel and Kent. The question presented by Kent was not whether the Executive had the discretion to deny passports but whether the means through which this discretion was exercised was Constitutional. Because of the sensitivity of this area of question, Congress must do more than historically infrequently acquiesce to the executive branch exercising power over passports.
