As we’ve discussed previously, 8 USC § 1185(b) once only required that a U.S. citizen hold a “valid passport” when departing from the United States, without specifying which country’s passport. That held true even when Congress extended the passport requirement to peacetime (but removed all penalties for violating it) in 1978.

That only changed when Congress passed the bipartisan Immigration and Nationality Technical Corrections Act of 1994; thenceforth, the requirement was for a “valid United States passport”, thus theoretically denying dual citizens and other U.S. citizens who’d managed to obtain non-U.S. travel documents the right to depart from the country on their other passport. The U.S. didn’t then and still doesn’t actually have officials physically checking the papers of most outbound passengers to see if they’re U.S. citizens with only foreign passports, but as mentioned last time, they’re making moves in that direction.

In any case, the way the U.S. passport requirement became law is rather amusing. The first bill which included it was introduced in the Senate right before the summer recess in 1993, giving Congress no time to review it. Kennedy and Simpson — the sponsors of that bill — lied about the extent to which it agreed with earlier Congressional intent and misleadingly implied that the provision had been included in other bills in previous sessions of Congress, while also warning of potential lawsuits if their bill failed to pass. Finally, they ended up shoving the passport provision into a similar House “technical amendments” bill the following year.

Table of contents

• Blink & you’ll miss it: Congressional “debate”
• A strange justification
• 95th Congress wanted travel freedom, not travel control
• Clueless State Dept. kept misreading law until 1994
• First appearance of foreign passport ban
• Conclusion

Photo of Alan Simpson by Tami A. Heileman, U.S. Department of the Interior; photo of Teddy Kennedy by Sage Ross. CC-BY-SA 2.0.

Blink & you’ll miss it: Congressional “debate”

The foreign passports ban in the 1994 “technical amendments” received only brief explanation and no debate on the Senate floor, and wasn’t even mentioned at all in the House. Here’s the full extent of the Senate’s consideration of the bill in which it was first contained — the Immigration and Nationality Technical Corrections Act of 1993 (S. 1197), which was co-sponsored by Ted Kennedy (D-MA) and Alan Simpson (R-WY). There were brief speeches by Kennedy and George Mitchell (D-ME); Simpson, the bill’s Team Elephant co-sponsor, did not speak. 139 Cong. Rec. 15275:

Mr. MITCHELL. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. 1197, the Immigration and Nationality Technical Corrections Act of 1993, introduced earlier today by Senators Kennedy and Simpson, that the bill be deemed read three times, passed, and the motion to reconsider laid on the table.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. KENNEDY. Mr President, I am pleased to join today with Senator Simpson in encouraging the passage of the Immigration and Nationality Technical Corrections Act of 1993.

This legislation is remedial in nature, and represents a consensus on some minor but important technical corrections that should be made in our immigration and consular laws. It was fashioned in a bipartisan spirit, beginning in the last Congress, and reflects not only the work of our Subcommittee, but the cooperation of our colleagues on the House Subcommittee, particularly Chairman Mazzoli.

Mr President, most of the corrections contained in this bill were pending last year before we adjourned and have already been adopted by one House or the other, or reported favorably from the Judiciary Committees. Most were cleared for action in the waning days of the last Congress but time and other issues intruded and no final action was taken.

I am pleased we have been able to clear this legislation for expeditious Senate action today because it truly is remedial in scope and long overdue.

For the benefit of my colleagues, I ask unanimous consent that a summary of the bill, section-by-section, be printed in the Record.

Kennedy & Simpson’s bill passed by voice vote on the same day it was introduced, but the House failed to act on it. However, the passport provision eventually became Section 204 of the Immigration and Nationality Technical Corrections Act of 1994 (H.R. 783, Pub.L. 103-416, 108 Stat. 4305, 4311) — Kennedy stuck it into H.R. 783 with S.Amdt. 1229 in November 1993, and the House accepted the amendments without any controversy in conference almost a year later.

A strange justification

The only official explanation ever provided for the purpose of changing the law to require a “valid United States passport” and not just a “valid passport” can be found on 1 July 1993, the day that Kennedy & Simpson introduced the bill which first contained it, at 139 Cong. Rec. 15275:

Sec. 107. United States citizens entering and departing on United States passports.

This section clarifies the current statute and brings it into conformity with administrative practice. Section 215(b) requires United States citizens to carry a valid passport when entering or leaving the United States unless otherwise provided by the President. Consistent with congressional intent, long-standing administrative practice has interpreted this as meaning that United States citizens must carry valid United States passports. The amendment codifies this interpretation.

Under the rule of law, administrative practice is supposed to conform with the statute rather than the other way around; in the U.S., this requirement arises from Constitution, Article II, Section 3, Clause 5, stating that the President “shall take Care that the Laws be faithfully executed”. But why bother when you can get a couple of pliable Senators to trick the legislature into legalising your illegal administrative practices post hoc?

Originally, I thought the 1994 “technical corrections” act was nothing more than a case of a pro-administration figure taking quiet action to paper over illegal-but-uncontested actions of the executive. But the explanation of the provision in the Congressional Record includes one more enigmatic little paragraph:

This section will also forestall technical challenges to application of the Travel Control Regulations by United States citizens who enter or leave the United States using foreign passports.

95th Congress wanted travel freedom, not travel control

The technical explanation of the foreign passport ban claimed that it was “[c]onsistent with congressional intent”. It’s hard to see how they wrote that with a straight face, given Joshua Eilberg’s speech back in 1978 (quoted in an earlier post) when Congress last amended 1185(b): he refused the administration’s request to retain penalties for violations, and kept the passport provision at all only because he wanted U.S. authorities to make sure that travellers wouldn’t be rejected from their destinations (and U.S. airline companies wouldn’t be forced to pay to carry them back to the U.S.) because they didn’t bother bringing valid documents.

Perhaps the Senators of the 103rd Congress thought that it would be safe to lie about such distant past events. Unfortunately for them, just two years earlier, the 102nd Congress — which included 81 of the same Senators — had acknowledged the true intent behind the earlier loosening of passport controls; as stated in H.Rept. 102-238 (the conference report for H.R. 1415, Foreign Relations Authorization Act, Fiscal Years 1992 and 1993):

Denial of passports

The House bill (sec. 112) added a section to the State Department Basic Authorities Act to prohibit use of the passport issuance function to prohibit or punish speech, belief, affiliation or membership. Section 118 of the Senate bill was identical to the House bill, except for an additional word which might have been read to prohibit such ideological considerations only when they constituted the sole basis of a passport decision.

Both provisions were designed to ensure that foreign policy objectives as defined by the executive branch are not pursued at the cost of the rights of Americans under the First Amendment to the United States Constitution. This reflects Congress’ desire to facilitate international freedom of movement, as evinced by section 707 of the Passport Act of 1978 (92 Stat. 992–3, amending 22 USC 211a), and Section 124 of the Travel Act of 1978 (92 Stat. 971, repealing 8 USC 1185(c)).

The conference substitute (sec. 113) adopts the House version as more precisely accomplishing the common intent of that two provisions, that is, to prohibit any consideration of expression, activity, belief, affiliation, or membership, within or outside the United States, which if held or conducted within the United States would be protected by the First Amendment to the Constitution, when denying, revoking or restricting a passport.

The repeal of 8 USC § 1185(c), the provision for fining & imprisoning people who violated the passport requirement, was actually in the first act mentioned rather than the second one; Section 124 of the Travel Act of 1978 actually repealed area restrictions on U.S. passports except in case of armed hostilities, disease, or other imminent danger to travellers. (This brings up an amusing question: how will a future court claim, with a straight face, that there was any definite “legislative intent” behind the 1994 provision when the overwhelming majority of the legislators had no clue what they were passing and the few who did know lied to their colleagues?)

Clueless State Dept. kept misreading law until 1994

One other odd part of this whole saga: the folks at the State Department don’t ever seem to have figured out that the pre-1994 statute’s plain language didn’t bar Americans from leaving the U.S. while holding only another country’s passport.

There is only limited case law pertaining to the 1978–1994 version of 1185(b). Probably the most famous case is Dore v. Schultz, 582 F.Supp. 154 (S.D.N.Y., 1984). Dore claimed that 1185(b) created a duty for the State Department to check the passports of outgoing passengers, and she demanded US$2.25 million in damages because the government let her passportless son depart the country with his Kenyan father. District Judge David Edelstein (an appointee of Harry Truman, who signed the law extending the passport requirement from wartime to “state of emergency”) was unamused by that argument, and fined Dore’s lawyer Cora Walker US$200; he thought the suit was so frivolous and lacking in merit as to constitute a breach of Walker’s obligations as a lawyer. That led to a great deal of academic discussion about Rule 11 of the Federal Rules of Civil Procedure, but none about the actual passport requirement.

Anyway, that case didn’t turn on whether the father had a U.S. passport or a Kenyan passport. So, after it was dismissed, the State Department happily went on claiming that 1185(b) required a “valid United States passport”, for example in a Board of Appellate Review case about a U.S.-born dual citizen who was ruled to have intended to relinquish his U.S. citizenship partly because he used a Belgian passport for travel to the United States. Matter of L.J.M., 14 BAR(D) 288, 300 (1987):

Although [L.J.M.] apparently received a Belgian passport in 1978 without having to take any special steps, in 1984 he was required to make specific application for renewal of that passport. Such action gives rise to a not unreasonable inference that he made a conscious decision to document himself as a foreign national rather than as a United States citizen, especially when it is recalled that he visited the Embassy in 1980 and 1984 and neither time inquired about his citizenship status or applied for a passport. By his own admission he made six trips to the United States between 1980 and the end of 1985. Each time he travelled on a Belgian passport in contravention of United States law that United States citizens must use an American passport when entering the United States (from outside the western hemisphere) or departing the country. Section 215(b) of the Immigration and Nationality Act, 8 U.S.C. 1185(b).

Arguably, a citizen’s use of a foreign passport under certain limited and unusual circumstances could plausibly be explained on grounds of convenience, not as evidence of an intent to relinquish United States nationality. However, a citizen’s regular travel over a five year period to the United States on a foreign passport can hardly be explained on the grounds of mere convenience. Such conduct is so blatantly inconsistent with United States citizenship that the fairest inference to be drawn from it is that the citizen no longer considered himself to be a United States national; such conduct is fully consistent with an intent to transfer his allegiance to the state whose passport he used with such insouciance and so consistently. In the circumstances, the Department’s inference that [L.J.M.]’s belated application for a United States passport suggests a wish to recant his naturalization does not strike us as unfair.

Finally, in the Initial Report of the United States of America to the U.N. Human Rights Committee Under the International Covenant on Civil and Political Rights in July 1994, just a few months before the “technical amendments” passed, John Shattuck of the State Department claimed, in relation to ICCPR Article 12 (Freedom of Movement):

Section 215(b) of the Immigration and Nationality Act, 8 U.S.C. section 1185(b), establishes a general requirement that U.S. citizens use a passport to depart from or enter the United States. No civil or criminal penalty is provided, however, for failure to comply with this statute. A passport is not required for travel within the United States or between the United States and any part of either North or South America, except Cuba. Exceptions to the general rule requiring passports for foreign travel are also made for U.S. citizens travelling in their official capacity as merchant mariners or air crewmen, or on active military duty. An exception also exists for citizens under 21 whose parents are employees of a foreign Government, and who either hold or are included in a foreign passport.

Under the strict wording of the statute, citizens who held foreign passports did not need any exception at all, whether or not their parents were government employees, but Shattuck implied that they did need such an exception and that his department had graciously chosen to grant it to them.

However, it’s hard to interpret what this means. On one hand, you might think that if the State Department refused to admit they were misinterpreting the statute, it’s unlikely that they’d be the source of pressure to amend it. On the other hand, the above statement might have simply been bluster, designed to distract people from their errors in interpretation while they quietly pushed Congress to fix the law for them.

First appearance of foreign passport ban

Though Kennedy claimed that “most” of the provisions in his July 1993 bill had already been approved by committee in one chamber or the other in the last Congress, his bill appears to have been the first time that any legislator had proposed barring U.S. citizens from using foreign travel documents to leave the United States.

There were a bunch of immigration-related technical corrections bills in the 102nd Congress, but none of them had anything to do with passport requirements for departure. First, Romano Mazzoli (D-KY), mentioned in Kennedy’s speech, introduced H.R. 3049, which had various fixes to the 1986 & 1990 immigration reform bills. Then, on 1 August 1991 (you should see the pattern here: right before a recess, when no one would have much time or patience to review the provisions in detail), Kennedy & Simpson introduced S. 1620, with similar provisions. Mazzoli’s version was the one that eventually became law (Pub.L. 102-232). Mazzoli’s later bills were less successful: H.R. 3670 passed the House by voice vote but died in the Senate, while H.R. 5599 and H.R. 5601 didn’t even make it back to the House floor from committee.

In fact, there was only one bill in the 102nd Congress which even mentioned 1185(b): H.R. 4433, sponsored by Barney Frank (D-MA). Normally, if a U.S. citizen came back from abroad without a passport, the border guards would hold them while conducting a “file search to verify United States citizenship”, for which no law barred them from charging a fee; Frank’s bill attempted to prohibit the government from imposing that fee in the case of a person who’d reported their passport lost or stolen.

Conclusion

From this, it seems safe to conclude that some event between 1992 and 1993 must have provided the impetus for the foreign passport ban, by making someone in the government realise that the lack of a requirement for a U.S. passport might provide an opportunity for “technical challenges” to any travel control regulations. Why all the secrecy and lies? And what event might have sparked this sudden enlightenment? I’ll explore two possibilities in a future post.