Freedom of movement under United States law
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International travel
History
From 1776 to 1783, no state government had a passport requirement. The Articles of Confederation government (1783–1789) did not have a passport requirement. From 1789 through late 1941, the government established under the Constitution required United States passports of citizens only during the American Civil War (1861–1865) and during and shortly after World War I (1914–1918). The passport requirement of the Civil War era lacked statutory authority. After the outbreak of World War I, passports were required by executive order, though there was no statutory authority for the requirement. The Travel Control Act of May 22, 1918 permitted the president, when the United States was at war, to proclaim a passport requirement, and a proclamation was issued on August 18, 1918. Though World War I ended on November 11, 1918, the passport requirement lingered until March 3, 1921. There was an absence of a passport requirement under United States law between 1921 and 1941. World War II (1939–1945) again led to passport requirements under the Travel Control Act of 1918.
A 1978 amendment to the Immigration and Nationality Act of 1952 made it illegal to enter or depart the United States without an issued passport even in peacetime.
Restrictions
As per § 215 of the Immigration and Nationality Act of 1952 (currently codified at 8 U.S.C. § 1185), it is unlawful for a United States citizen to enter or exit the United States without a valid United States passport.
As per Haig v. Agee and the Passport Act of 1926 (currently codified at 22 U.S.C. § 211a et seq.), the Presidential administration may deny or revoke passports for foreign policy or national security reasons at any time. The Secretary of State has historically in times of peace refused passports for one of two reasons, citizenship or loyalty, and criminal conduct or when the applicant was seeking to "escape the toils of law." Laws and regulations on restricting passports have generally been categorized as personal restrictions or area restrictions and have generally been justified for national security or foreign policy reasons. Perhaps the most notable example of enforcement of this ability was the 1948 denial of a passport to U.S. Representative Leo Isacson, who sought to go to Paris to attend a conference as an observer for the American Council for a Democratic Greece, a Communist front organization, because of the group's role in opposing the Greek government in the Greek Civil War.
In Kent v. Dulles, 357 U.S. 116 (1958), the United States Secretary of State had refused to issue a passport to an American citizen based on the suspicion that the plaintiff was going abroad to promote communism (personal restrictions/national security). Although the Court did not reach the question of constitutionality in this case, the Court, in an opinion by Justice William O. Douglas, held that
the federal government may not restrict the right to travel without due process:
The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. If that "liberty" is to be regulated, it must be pursuant to the law-making functions of the Congress. . . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, . . . 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.
Six years later, the Court struck down a federal ban restricting travel by communists (Aptheker v. Secretary of State, 378 U.S. 500 (1964))(personal restrictions, national security, First Amendment). But the court struggled to find a way to protect national interests (such as national security) in light of these decisions. Just a year after Aptheker, the Supreme Court fashioned the rational basis test for constitutionality in Zemel v. Rusk, 381 U.S. 1 (1965) (area restrictions, foreign policy), as a way of reconciling the rights of the individual with the interests of the state.
Transportation Security Administration
The issue of freedom of movement has received new attention in the United States as of 2004, particularly concerning the methods and practices of the Transportation Security Administration. On August 5, 1974, the Air Transportation Security and Anti-Hijacking Acts of 1974 (P.L. 93-366) were signed. Among many important provisions, this landmark aviation security law directed that regulations be prescribed requiring weapons-detecting screening of all passengers and carry-on property. The law is located in Title 49, United States Code (U.S.C.), sections 44901 (Screening passengers and property) and 44902 (Refusal to transport passengers and property). For many decades an airline ticket's fine print has contained an agreement by the purchaser to submit to a search for unlawful dangerous weapons, explosives or other destructive substances. The Transportation Security Administration (TSA) is responsible for such screening prior to departures from commercial airports within the United States since the signing of the Aviation and Transportation Security Act (P.L. 107-71) on November 19, 2001. Freedom of movement is not denied unless a passenger refuses to submit to a search required by law. There are, however, a number of other safety and homeland-security-related issues covered in 49 U.S.C. Chapter 449 and Title 49 Code of Federal Regulations in the 1540 series that could impede movement, such as a passenger's name appearing on a "no fly" or "selectee" list.
Regardless of the constitutionality of laws passed post-9/11 with respect to freedom of movement being a privilege, all U.S. citizens have the right to travel or move within and between the 50 states without the requirement of submitting to a search of one's person or property prior to travel or movement.
Another issue of contention deals with freedom of movement across U.S. national borders. The United States has long permitted persons to cross from Canada into the United States with few controls. Concerns about drug trafficking and illegal immigrants seeking employment have led to much stricter controls on those crossing the border from Mexico.
An attempt to ban travel to Cuba was deemed unconstitutional, but travel has been much hindered by the Trading with the Enemy Act which bans spending money in Cuba without a license issued by the Office of Foreign Assets Control (OFAC) of the US Treasury Department.
Restrictions as punishment
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), codified at 42 USC 652(k), saw the beginning of restrictions on freedom of movement as a punishment for child support debtors. Constitutional challenges to these restrictions have thus far failed in Weinstein v. Albright and Eunique v. Powell.
Federal Appeals Courts in the Second and Ninth Circuits, although expressing due process concerns, have held that collection of child support is an important government interest, that the right to travel internationally was not a fundamental right and that laws restricting this right need not pass strict scrutiny.
In a dissenting opinion in Eunique, Judge Andrew Kleinfeld categorized the measure as a punishment for unpaid debts. "This passport ban is more reasonably seen, in light of the penalties the states are required to impose for nonpayment of child support ... not as a means of facilitating collection, but as a penalty for past nonpayment." "All debtors should pay their debts. Debts for child support have special moral force. But that does not justify tossing away a constitutional liberty so important that it has been a constant of Anglo-American law since Magna Carta, and of civilized thought since Plato."
A number of constitutional scholars and advocates for reform strongly oppose restricting the human right to travel to a person who has committed no crime, and assert that the practice violates basic constitutional rights Similarly, anyone claimed to be in arrears on child support can have certain types of vehicular driver's license revoked or suspended, severely restricting their freedom to travel. Critics point to cases where the lapse in support payments was caused by loss of employment yet the response of revoking the right to freely travel by car further impedes the ability to resume payments by limiting the ability to find employment and travel to a workplace.
International Bill of Human Rights
The International Bill of Human Rights is an informal name given to the Universal Declaration of Human Rights (adopted in 1948), the International Covenant on Civil and Political Rights (1966) with its two Optional Protocols, and the International Covenant on Economic, Social and Cultural Rights (1966).
Article 13 of the Universal Declaration of Human Rights reads:
(1) Everyone has the right to freedom of movement and residence within the borders of each State.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Article 12 of the International Covenant on Civil and Political Rights incorporates this right into treaty law:
(1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
(2) Everyone shall be free to leave any country, including his own.
(3) The above-mentioned rights shall not be subject to any restrictions except those provided by law, are necessary to protect national security, public order (ordre publique), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
(4) No one shall be arbitrarily deprived of the right to enter his own country.
AND THERE WE HAVE IT, FOLKS. NOT A DONE DEAL, AND NOT A GOOD IDEA.
BUT WHAT'S ANOTHER INALIENABLE RIGHT DOWN THE DRAIN? AFTER ALL, THE CONSITUTION ITSELF HAS BEEN REDUCED TO A CRUMPLED PIECE OF PAPER....
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