# Walter Briehl v. John Foster Dulles, Secretary of State

> Court of Appeals for the D.C. Circuit · June 27, 1957 · 248 F.2d 561

URL: https://www.frixlaw.com/law-library/cases/9445856

## Case

- **Full name:** Walter BRIEHL, Appellant, v. John Foster DULLES, Secretary of State, Appellee
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 27, 1957
- **Citations:** 248 F.2d 561; 101 U.S. App. D.C. 239; 1957 U.S. App. LEXIS 4431
- **Precedential status:** Published
- **Opinion:** Dissent by Edgerton
- **Judges:** Edgerton, Bazelon, Fahy, Prettyman, Miller, Washington, Danaher, Bastían
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by Kent v. Dulles, 357 U.S. 116 (1958).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9445856

## Opinion text

EDGERTON, Chief Judge
(dissenting).
We have temporized too long with the passport practices of the State Department. Iron curtains have no place in a free world. I think the Secretary should be directed to issue a passport.
“Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through-the territory of any State is a right secured by * * * the Constitution.” Williams v. Fears, 179 U.S. 270, 274 , 21 S.Ct. 128 , 45 L.Ed. 186 . We have held that the right to leave the country is an attribute of personal liberty and that restrictions on it “must conform with the provision of the Fifth Amendment that ‘No person shall be * * * deprived of * * * liberty * * * without due process of law’.” Shachtman v. Dulles, 96 U.S.App.D.C. 287, 290 , 225 F.2d 938, 941 .
But we need not and therefore should not 1 decide any constitutional question. As Judge Bazelon’s opinion shows, the President and Congress have not undertaken to delegate to the Secretary the authority he claims. This is very clear when the statutes and executive orders on which he relies are construed narrowly. Delegations of authority must be construed narrowly when a narrow construction avoids serious constitutional *597 questions. United States v. Rumely, 345 U.S. 41 , 73 S.Ct. 543 , 97 L.Ed. 770 .
The Secretary proposes to continue restricting the personal liberty of a citizen because statements by informants whom the Secretary does not identify have led him to think that if the citizen goes abroad he -will do something, the nature of which the Secretary does not suggest, which the Secretary thinks, for reasons known only to him, will be contrary to what, for reasons known only to him, lie conceives to be “the national interest”. If Congress or the President had undertaken to authorize this, serious constitutional questions would arise. May the government deprive a citizen of his constitutional liberty to go abroad (1) without a jury trial, (2) without a definite standard of guilt, (3) without sworn testimony, and (4) without an opportunity to confront his accusers or know their identity? May it deprive him of this liberty because of the way he has exercised his First Amendment rights of free speech, press, and assembly? Since neither Congress nor the President has undertaken to give the Secretary the authority he claims, we need not consider these constitutional questions.
. Peters v. Hobby, 349 U.S. 331, 338 , 75 S.Ct. 790 , 99 L.Ed. 1129 .
. 32 Stat. 380 (1902), 22 U.S.C. § 212 (1952), 22 U.S.C.A. § 212 , which amended 14 Stat. 54 (1866). Under the earlier lav? only citizens were eligible for passports.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9445856. Public record. Not legal advice.