1. The Rise of the Passport Division

This section considers the legal and institutional evolution of the modern U.S. passport regime. Control over passports, as well as the creation of a bureaucracy to exercise such control, began during World War I. By the early Cold War, after growing steadily through the interwar period, the Passport Division had accrued a wide range of discretionary powers and considerable autonomy. To understand the evolution of this important institution of the national security bureaucracy, it is necessary to understand the ways that congressional delegation, executive delegation, and bureaucratic entrepreneurship mutually constituted travel control as a field of action, as well as the Passport Division as an independent, autonomous actor. The story is not easily reducible to a functionalist argument that passport control was a necessary institutional response to a newly threatening geopolitical climate. Nor is the story reducible to a simple, static account in which one branch of the state dominates policy to the detriment of another. Rather, in three decades marked by fears about international threats to national security, Congress and the executive worked together to define travel control as a desirable policy, largely by delegating authority over that field to the Passport Division. That division then played a role in articulating and modeling the need for ever-larger functions in the field. This section thus narrates the history of a self-reinforcing process that served, by the early Cold War, to constitute a new field of action and a newly autonomous institution.

Of course, passports themselves had existed in some form for a long time prior to this—citing an Old Testament reference to the Court of Artaxerxes, a 1958 Legislative Reference Service account of the Passport Division's power concluded that “the exact origin of the use of the passport has been lost in the mists of time.”Footnote ¹⁵ States, courts, churches, guilds, and sundry other groups had issued various forms of safe passage documentation throughout the centuries. But the modern passport, which documented the identity of an individual citizen of a particular state, was an invention of the French Revolution. It was then that the centralized state, as John Torpey has argued, “monopolized the legitimate means of movement” across an increasingly policed and sealed national border.Footnote ¹⁶

The pre–World War I American passport, however, looked more like a premodern safe passage pass than a modern travel control document. The American passport in these years was little more than a letter vouching for the identity of the bearer and a request for foreign governments and authorities to accord the individual respect. Zechariah Chafee later referred to the late nineteenth century as a “horse and buggy age” when a “passport was unknown except for Baedeker's remark that it might help you get permission to look at a private collection of paintings.”Footnote ¹⁷ Until the mid-nineteenth century, such passports could be issued by state and local officials, and they could be issued to noncitizens. Statutes in 1856 and 1874 centralized the authority to issue passports in the State Department. In these years, the issuance of passports was limited to American citizens for the first time.Footnote ¹⁸ But by that point, passports were increasingly unnecessary for many Americans seeking to travel abroad. Western European states had begun to liberalize and eliminate visa and passport restrictions. Where travel restrictions remained, states generally lacked the capacity to effectively enforce them.

In this era of free movement for many American travelers, therefore, one's ability to travel did not depend on one's ability to hold a passport.Footnote ¹⁹ Because the passport was essentially a form of character reference, the State Department understood that it was a discretionary privilege that it could grant as it desired.Footnote ²⁰ Passports were denied to punish or prevent certain forms of behavior. In 1901, for instance, the attorney general issued an opinion that the secretary of state could deny passports to anarchists.Footnote ²¹ Passports were similarly denied to Mormon missionaries so as not to aid in committing the crime of polygamy. In the first decade of the twentieth century, State also seems to have denied passports as a form of moral policing, as when it denied passports to an American running gambling tables and brothels in Peking, or to a blackmailer and card sharp in Egypt. Given the limited border controls of the late nineteenth and early twentieth centuries, such passport denials, however troubling, had little serious impact on the freedom of movement of most American citizens.Footnote ²²

World War I radically changed the meaning of the document, ushering in the modern institutional politics of the passport. States around the world paid new attention to the movement of all individuals into and out of their borders—they sought to exclude spies and saboteurs; to prevent potential draftees from fleeing abroad; and if neutral, to prevent traveling citizens from coming to harm in war zones and potentially embroiling them in the conflict. The result was a rash of new passport and visa requirements for all citizens. “Passports were not [previously] taken very seriously,” reflected the Chief of the Bureau of Citizenship on Christmas Eve in 1914, “but now they have assumed an importance which they never had before.”Footnote ²³

For American citizens seeking to travel abroad, the early years of World War I thus saw a steady ratcheting up of passport requirements. In November 1914, the State Department announced that all citizens going abroad “should” carry passports, and it required that all passport applications be executed in front of court officials. The following year, these measures were reinforced in an executive order issued by Woodrow Wilson, and federal officials began pressuring steamship companies to refuse passengers without passports. In 1916, a new office was opened in New York to handle the new demand for passports. Its procedures revealed the new bureaucratic obstacles confronting those who sought to leave the nation. All travelers aged nine or over needed to show a birth or naturalization certificate, provide a valid reason for wanting to travel, bring a witness to prove their citizenship and “good faith,” hand over three signed photos and a one-dollar fee, and swear an oath to support and defend the constitution of the United States. (The New York Times thought “this [last] part of the procedure is impressive, and the most cynical of applicants is charged with a spark of patriotism as he solemnly answers.”) These papers were then sent to Washington, DC, for review; if all was satisfactory, a signed and sealed passport would return five days later that stated the date and destination of travel. Travelers then needed to get visas from foreign governments, and then confront one final hurdle to departure—neutrality squads inspected and signed passports as travelers boarded their boats. Each passport was good for only six months and could only be renewed once.Footnote ²⁴

Those trying to maintain neutrality at all costs thought that these were actually inadequate regulations. Secretary of State William Jennings Bryan, for instance, argued that the state should take stronger steps to discourage or even prevent travel to areas in which citizens might come to harm, including traveling on the ships of belligerents. Such harm to citizens, Bryan accurately prophesied, would draw Americans into the conflict. Others, most notably Woodrow Wilson, maintained that the rights of Americans to travel and trade could not be limited in this fashion. In the aftermath of the sinking of the Lusitania, disagreement over these issues led Bryan to resign from the administration. A year later, he was working with congressional representatives to “prohibit the issuance of passports for use on the vessels of a belligerent country.” The administration blocked this blanket prohibition on travel.Footnote ²⁵ So the passport controls that proliferated in the uneasy neutrality of 1916 thus sought to preserve both neutrality and international trade; passport rules, tellingly, made renewals easier for business and commercial travelers.Footnote ²⁶

American entry to the war produced a new round of restrictions on travel. When Woodrow Wilson proclaimed a State of War on April 6, 1917, he banned alien enemies from entering or exiting the United States, except according to rules and regulations prescribed by the president.Footnote ²⁷ In practice, that meant closer inspection of all travelers. In June, the secretary of commerce issued a formal request to steamship companies to only allow travel from citizens with approved passports.Footnote ²⁸ These orders were unprecedented efforts to regulate travel, and in late 1917, the attorney general ruled that they exceeded the authority of the president. On December 4, Wilson asked Congress for the passage of legislation “to create a very definite and particular control over the entrance and departure of all persons into and from the United States.”Footnote ²⁹

Debate over the new legislation was hasty and scattershot, which muddied the purpose and details of the bill. Administration officials presented the bill as a necessary wartime measure to secure the military effort. “The prime object of this bill,” asserted John Lord O'Brian, Special Assistant to the Attorney General for War Work, “is to control the transmission of information in and out of the country.”Footnote ³⁰ That was a curious and ill-defined basis for a piece of travel control legislation. When offering testimony on the bill before Congress, representatives from the security branches were troublingly vague on whether they mainly sought to prevent foreign spies from entering the country or disloyal Americans from leaving it. The chief of the Bureau of Citizenship, for instance, argued that “these regulations, of course, are intended to apply more to aliens than to American citizens. American citizens are rather a secondary consideration.” But O'Brian testified that the “dangers to this country so far as spy activity and destruction of property are concerned are much greater from the naturalized citizen and the native citizen than the enemy alien.” And naval intelligence officials warned darkly of an American citizen who had traveled to Holland and Switzerland and then returned, becoming in the process a “dangerous means of communication” between Germany and the “undoubted thousands of German agents in the United States.”Footnote ³¹

On May 4, the same day that the Senate passed the Sedition Act, the House passed without a roll-call vote what was variously known as the Wartime Control Act, the Flood Passport Bill (after its sponsor, Henry D. Flood, Chairman of the Foreign Affairs Committee), and, later, the Travel Control Bill. The lack of a popular name for the bill testified to the limited attention it had been paid in the press, as well as its uncertain purpose. Less than a week later, after perfunctory debate, the bill passed through the Senate. It gave the president broad authority to create laws to regulate the entry and exit of both citizens and aliens; the details of those laws were to be established by presidential proclamation. Representative Flood explained that it was “essential that the executive have wide discretion and wide authority” because “no one can foresee the different means which may be adopted by hostile nations to secure military information or spread propaganda and discontent.”Footnote ³² On August 8, Wilson proclaimed that no citizen would receive a passport “unless it shall affirmatively appear that there are adequate reasons … and that such departure or entry is not prejudicial to the interests of the United States.” Under the authority of the Travel Control Act, that proclamation was now law and punishable by fines of up to $10,000 or twenty years in prison. The following week, the State Department renamed the Bureau of Citizenship as the Division of Passport Control.Footnote ³³ The executive had asked for broad powers in the field of travel; Congress had granted them; and a new political institution was emerging to implement them.

Still, it was widely understood that these broad powers were wartime measures. Officially, the law was titled “an act to prevent in time of war departure from or entry to the United States contrary to the public safety.” A. W. Parker of the Bureau of Immigration testified to Congress that “this is strictly a wartime proposition;” the House Committee reported it to Congress as “an emergency war measure.”Footnote ³⁴

But after the war, travel restrictions lingered. Wilson's proclamation remained in effect until it was sunsetted by Congress on March 3, 1921.Footnote ³⁵ By that point, the Harding administration had succeeded, after a failed effort by Wilson in 1919, in making permanent the ban on alien entry without a visa.Footnote ³⁶ But the parliamentary manner in which this nativist measure had been accomplished—it had been a rider to a Diplomatic and Consular Appropriations Act—as well as the ongoing indeterminacy about the relationship between exit and entry regulations left things so unclear that the State Department sought out a Department of Justice opinion to clarify the law.Footnote ³⁷ On April 5, the attorney general issued an opinion that American citizens no longer needed passports to enter or exit the country.Footnote ³⁸

As the attorney general issued this statement, however, the State Department advised Americans looking to travel abroad that it was nonetheless advisable to hold a passport.Footnote ³⁹ Foreign nations had not relaxed their passport restrictions, a situation that soon led to much grumbling about what was dubbed the “passport nuisance.” Recalling “the good old days [when] none of us had to bother about passports unless we were going to heathen lands,” the New York Times complained in 1926 that the passport system “in vogue since the war is cumbersome, vexatious and a drag on free intercourse between nations.”Footnote ⁴⁰ The next year, Ezra Pound argued that “Europe had gone crazy over formalities” since the war, and complained of the “unending boredom of waiting an hour, a half-hour, three hours, in countless bureaus, for countless useless visas, identities, folderols.”Footnote ⁴¹

In this context, in which passports were a practical necessity to enter foreign nations, the State Department's power to issue or deny passports took on new significance.Footnote ⁴² But throughout the interwar period, State's legal authority over the process continued to be constructed in broad terms, as if the decision to issue a passport remained little more than a favor, as in the days before World War I. A series of executive orders gave the secretary of state broad and undefined authority to make additional regulations on the subject of granting and issuing passports.Footnote ⁴³ In 1926, a new Passport Act updated the old 1856 statute and provided the secretary of state the power to grant, deny, or revoke passports. The law also granted the department complete discretion to establish more specific regulations regarding passports. During the brief and tepid committee hearings on the 1926 act, one congressman complained that this was “altogether too much power given to a department” and asked whether specific passport regulations could be included in the statute. In response, Assistant Secretary of State Wilbur J. Carr reiterated the need for broad executive discretion: “I would say that no human being could foresee the different things that must be provided for that will come up from time to time under different conditions, different modes of travel and various things that rise in the course of a period of time. They are such that I do not think any body of legislators or administrators could foresee.”Footnote ⁴⁴ That attitude carried the day—Congress and the executive alike continued to delegate broad authority to the recently created Passport Division.

For much of the interwar period, the Passport Division's discretion over the issuance of passports was exercised primarily in three areas.Footnote ⁴⁵ First, because passports could only be issued to citizens, passport administrators needed to deal with challenges produced by the novel, and still uneven, documentation regime for citizenship.Footnote ⁴⁶ In 1935, for instance, Mrs. Indiana Mountain Saint Clermont of the Iroquois was unable to prove she had been born in the United States and was therefore denied a passport.Footnote ⁴⁷ Second, because passport law required applicants to swear an oath of allegiance that included a vow to defend the United States from all enemies, pacifists, such as Roger Baldwin and Dorothy Detzer, needed special dispensation to swear an oath to defend the constitution “as far as my conscience will allow it.”Footnote ⁴⁸

Third, much effort was expended to deny passports to radicals. Communists, for instance, were denied passports between 1917 and 1931.Footnote ⁴⁹ The process revealed how much policymaking autonomy the State Department had in the field of international travel. As of late 1920, policy for denying passports to Communists and anarchists was disorganized. “We are having a good deal of trouble on the subject of passports for radicals,” complained one internal memo: “our decisions, where radicals are concerned, are impressionistic and contradictory.”Footnote ⁵⁰ That radicals should be denied passports was uncontroversial within the State Department; the difficulty was outlining an appropriate standard. Initially, State sought to draft its own definitions of subversion. But Second Assistant Secretary of State Alvey Adee suggested it would provide political cover to use a congressionally approved definition. For its internal regulations, the State Department therefore adopted the definition of radicalism from the 1918 Immigration Act, simply substituting the word “citizen” for “alien.”Footnote ⁵¹ Without direction or approval from either Congress or the president, the Passport Division had developed a broad policy of denying passports to radicals.Footnote ⁵²

That policy held until 1931, when Henry Stimson suddenly reversed it. M. J. Olgin, editor of the Jewish Morning Freiheit and an official in the U.S. Communist Party, had applied for a passport to travel to Europe for travel and study. Stimson was convinced that “Olgin is a communist and is probably going to Europe to confer with the Communist authorities.” But the secretary of state thought that whatever Olgin got up to in Europe was likely to be less harmful than the damage that would done to America's image if they refused the passport. Communist propagandists, Stimson predicted, would cite it as “evidence that our Government is a class government in the hands of the capitalist classes.” The reversal was accomplished simply, swiftly, and unilaterally—“as I understand that I have complete discretion in the matter, I think it is wiser not to refuse the passport.”Footnote ⁵³ By the start of the Depression, control over passports had already expanded well beyond the sorts of regulations passed during World War I, and they had done so largely through the autonomous action of the State Department.

As geopolitical tensions ratcheted up in the mid-1930s, the Passport Division took on new powers, seeking, on its own initiative, to restrict the issuance of passports in order to preserve neutrality. It denied passports to travel to Ethiopia following the Italian invasion in 1935. It began stamping passports not valid for entry to China following the outbreak of war in 1937. In the same year, it began stamping all passports invalid for travel to Spain and began requiring suspicious applicants to sign an affidavit that they would not travel to Spain. Adopted without congressional sanction, such policies revealed that the reach of the Passport Division was larger than its grasp. Stamps invalidating entry to China and Spain relied on foreign governments to enforce them at their borders. There was evidence that the Chinese government paid no attention to them, so the practice soon ceased. And while some 200 volunteers for the Spanish civil war were denied their passports, roughly 4,000 Americans did fight for the Republic—some quite conspicuously.Footnote ⁵⁴

In 1938, these efforts to restrict travel to preserve neutrality were made more formal when President Franklin D. Roosevelt issued a new executive order that specified for the first time that the secretary of state had authority to restrict a passport to use in certain countries, alongside discretion to refuse or withdraw passports.Footnote ⁵⁵ This was a form of presidential sanction for policies developed autonomously in the national security bureaucracy; so was the passage of neutrality legislation and then a 1939 presidential proclamation that barred American citizens from traveling on the ships of belligerents or in combat areas. Responsibility for enforcing these bans fell on the Passport Division, and in September 1939, Cordell Hull issued new travel regulations. To receive a passport to travel to a combat area, one now needed to provide documentation to show the “imperativeness” of the proposed trip. To smooth the way for commercial travel, the regulations specified that a business traveler needed only a letter from the head of their firm.Footnote ⁵⁶ “As a result of the[se] restrictions and the microscopic scrutiny to which each application is subjected,” reported the New York Times, the issuance of passports had “dwindled to a trickle” by April 1941.Footnote ⁵⁷

Still, the State Department remained concerned that it did not have sufficient control over travel. While State was withholding passports from particular individuals, and while it could block travel to certain regions, it did not have general authority to require a passport of all citizens seeking to leave the country. It now asked Congress for this general authority, which, as Passport Division head Ruth Shipley testified, would “most decidedly” help the division: “it will make it possible for us to require a passport. When a person has to have a passport to get to certain places then you have the opportunity to find out why he is going and where he is going and what he is going to do will be inimical to the best interests of the US or against the public safety.”Footnote ⁵⁸ On June 21, 1941, acquiescing to the requests of national security bureaucrats, Congress quietly amended the 1918 Travel Control Act, so that the president would have the authority to issue a proclamation requiring a passport not only during a state of war but also during the “unlimited national emergency” that FDR had declared on May 27, 1941.Footnote ⁵⁹ FDR would issue such a proclamation in November, requiring a passport for all American citizens seeking to travel internationally.Footnote ⁶⁰

On November 25, Secretary of State Hull issued Departmental Order 1003, requiring all citizens to bear a valid passport when departing from the country and, on return, to bear a passport that was both valid and verified overseas by an American diplomatic or consular official. There were some telling exemptions to this general rule. Travel to Canada and Mexico was exempted, as was travel to British islands in the Caribbean at which the United States maintained a defense base. Members of the armed forces and civilian employees of the War or Navy Department did not need passports; neither did officers or employees of the Panama Canal if they possessed other appropriate identification. Seamen were required to hold passports, but they did not have to have them validated overseas. Most importantly, the regulations reiterated that if the secretary of state determined that the travel of an individual was “prejudicial to the interests of the U.S.” their travel could be barred whether or not they had a passport. And the secretary of state maintained discretionary authority to “refuse to issue a passport, to restrict its use to certain countries, [and] to withdraw or cancel a passport already issued.”Footnote ⁶¹

These regulations were in keeping with a general tightening of control over travel. In late 1941, the Passport Division also invalidated all outstanding passports in an attempt to minimize fraud and to remove passports “from the hands of persons engaged in activities not in the best interests of the United States.” (There was particular concern about a bogus passport ring in Athens.) The new passports featured a new security measure—the fingerprints of the issuing officer.Footnote ⁶²

In all, the war introduced what the State Department called a “radical change in the Division's functions.” Whereas the interwar Passport Division had, according to the State Department, been ostensibly committed to protecting the individual citizen while traveling abroad, its “principal purpose” was now “to safeguard and maintain the security of the state.”Footnote ⁶³ Or, in the more critical terms of legal commentator Charles Whelan, the 1941 revision to the Travel Control Act, the presidential proclamation, and the new passport rules and regulations “combined to transform a passport into a license to travel for the duration of the national emergency.”Footnote ⁶⁴ A regime of passport control, established on a temporary basis during World War I, had produced a bureaucratic institution that had steadily accumulated powers through the interwar period; when war came again, that institution was thus well positioned to request even further authority over international travel.

And although those expanded powers were again understood to be temporary wartime measures, they again lingered into the postwar period. The national emergency that initiated the new Travel Control Act would turn out to have a surprisingly long duration—FDR's 1941 proclamation of emergency did not expire until April 28, 1952. That should have ended the legal authority of the State Department to require a passport to exit the nation. But two weeks earlier, Congress had passed a statute extending the validity of the Travel Control restrictions until June 1, 1952. On May 28, just before they were set to expire, they were extended until June 15; on June 14, they were extended again until June 30.Footnote ⁶⁵ By that point, the Travel Control Act had been transferred into Section 215 of the Immigration and Nationality Act of June 1952. In the process, it had undergone a subtle, but significant, transformation. The 1918 Travel Control Act gave the president authority to issue travel rules in times of war; the 1941 amendment had extended that authority to the specific national emergency FDR had declared in 1941. Now, in Section 215 of the 1952 Act, the law said simply that the president had the authority to issue proclamations limiting travel in “any national emergency.”Footnote ⁶⁶ As such, President Truman could rely on the state of emergency he had declared in December 1950 during the Korean War—a state of emergency that would last until 1976. On January 17, 1953, authorized by the state of emergency and the 1952 Immigration act, Truman issued a proclamation maintaining that Americans required a valid passport to depart from or enter the United States, and they needed that passport verified overseas by an American diplomat or consular officer.Footnote ⁶⁷

Throughout, State retained broad authority to determine regulations about who was entitled to receive a passport. The Passport Division's policies on this front moved according to its own rhythms. In the immediate aftermath of World War II, for instance, it returned to its earlier practice of denying passports to Communists—one part of a broader policy of only issuing passports to those whose travel would be in the national interests of the United States. In 1948, it decided that passports could be issued to Communists, but only if they satisfied the division that they would not engage in promoting Communist causes while abroad. The Passport Division's refusal to issue a passport to Congressman Leo Isaacson serves as the plainest kind of evidence that its judgments about the best travel policy for the United States trumped those of rival branches of the state.Footnote ⁶⁸

And this was all, in essence, State Department freelancing—Congress had not explicitly sanctioned these policies. Two years later, with the passage of the McCarran Internal Security Act in 1950, Congress did make an effort to legislate in the field of counter-subversive travel control. Section 6 of the McCarran Act declared that once an organization had been ordered to register with the Subversive Activities Control Board, it would become illegal for any member of that organization to use, or even apply for, a passport. (The punishment was up to $10,000 or five years in jail). This section of the law would actually never go into effect. Efforts to order the Communist Party to register were caught up in legal challenges until 1961. Then, when the passports of Herbert Aptheker and Elizabeth Gurley Flynn were revoked in early 1962, the pair successfully appealed to the Supreme Court, which ruled Section 6 unconstitutional.Footnote ⁶⁹

Ironically, this failed congressional effort to regulate passports was most significant for what it revealed about the Passport Division's greater capacity to control the travel of suspected radicals without congressional approval. Shipley's division simply didn't need a statute to do the work. A minority of three senators on the Judiciary Committee, who opposed the passage of the law because it tried to “use a meat ax to strike at evils … more effectively dealt with by the skillful use of a properly shaped scalpel,” pointed out that the State Department was already using its “existing discretionary powers” to make appropriately skillful passport denials—as evidence, it cited the “recent denial” of a passport to Paul Robeson.Footnote ⁷⁰ In his ultimately unsuccessful veto of the law, Harry Truman agreed. “It is claimed that this bill would deny passport to communists,” he observed. “The fact is that the Government can and does deny passport to Communists under existing law.”Footnote ⁷¹

That was certainly the State Department's understanding. In early 1951, the Passport Division asked the State Department's Legal Advisor to clarify the meaning of the Internal Security Act. “For some time,” the resulting legal opinion observed, “it has been the general policy of the Department to refuse passports to Communists generally as persons whose presence abroad would be inimical to the best interests of the U.S.” The new act “merely makes what was before a discretionary right of refusal mandatorily exercisable in certain specified contingencies.” And, in the opinion of the Legal Advisor, “it would be appropriate and consistent with the spirt of the Internal Security Act to deny a passport, whether or not an organization has in fact registered” under the Act.Footnote ⁷² Shipley took this message to heart. When Congress asked Shipley if her division was enforcing the ban on passports for those listed by the Subversive Activities Control Board, her answer was instructive: “there is no such list, yet, but the spirit of the McCarran Act is quite strong in the interests of security. We were given a legal opinion, which we asked for, that it was our duty to carry out the spirit of the act … we have done quite a good job on it. We have stopped a good deal of travel.”Footnote ⁷³ In December 1951, Shipley boasted that the “Department is endeavoring to carry out the spirit of the McCarran Act [and] has refused or withdrawn passport facilities in hundreds of cases.”Footnote ⁷⁴ As attorney Leonard Boudin observed archly, “this is the first time to the writer's knowledge that a precise statute is to be enforced not by its letter but by its spirit.”Footnote ⁷⁵

On its own initiative, then, the State Department was restricting the rights of suspected Communists even more severely than the notorious McCarran Act. While those ordered to register under the McCarran Act could, and did, appeal their registration order in court, the Passport Division forged ahead in banning travel to suspected Communists with little regard for the appeals process built into Section 6. As professor of constitutional law Charles M. Whelan pointed out in 1952, direct action by the Passport Division constituted a “short-cut through the procedural safeguards of the [McCarran] Act.”Footnote ⁷⁶

The Passport Division's initiative in relation to the McCarran Act was not unique—it testified to the power that it had developed over the previous decades. As Secretary of State Dean Acheson explained in a press release in May 1952, the department had discretionary authority “both as a power inherent in the exercise of presidential authority to conduct foreign relations and as a matter of statutory law.” Presidential proclamations issued under the Travel Control Act of 1941 and the McCarran-Walter Act of 1952 banned travel from the country without a passport. The 1926 Passport Act and the 1938 executive order granted the secretary of state authority to issue passport regulations. The passage of the McCarran Act of 1950 had simply encouraged the State Department to clamp down tightly on the travel of suspected Communists. But it claimed wide discretion over the issuance of all passports. As Acheson put it in revealingly vague terms in May, “for many years the Department has refused passports to persons for many reasons”Footnote ⁷⁷

How to explain the discretionary power the Passport Division enjoyed by 1952? It had been built by a self-reinforcing process of delegation and bureaucratic entrepreneurship. Executive experimentation in travel control in the opening stages of World War I had led to demands for a legislative basis for policy in the field; that legislation, and a sequence of subsequent acts and executive orders, delegated discretion to the Passport Division and the State Department. In the 1930s, the Passport Division sought new forms of control over travel; it gained them both by engaging in unilateral policy entrepreneurship and by asking for new delegations of authority from both Congress and the executive. Given its authority in the field, it received these new grants of authority, and by the postwar period, it was out ahead of Congress, implementing the “spirit” of new counter-subversive legislation before those laws had come into force. Seeing this institutional story unfold at the intersection of the executive branch, the legislature, and the bureaucracy describes how the powers of the Passport Division blossomed. To understand how this self-reinforcing process worked, we need to turn to an exploration of the reputation and political legitimacy of this important component of the rising national security state.

2. Ruth Shipley's Reputation

To explain the wide-reaching powers of the Passport Division in 1952, Secretary of State Dean Acheson relied on the reputation of its head. “I do not know of any person in the service of the government,” Acheson proclaimed, “who brings to her work greater devotion, greater sense of public obligation and public duty, and greater skill than does Mrs. Shipley. I believe quite fortunately that view is widely held throughout the country.”Footnote ⁷⁸ Such sentiments were widespread, at least among the influential policymakers who routinely deferred to Shipley's authority. Twelve years earlier, journalist Maxine Davis had observed that although the “Secretary of State is technically responsible for all Mrs. Shipley's decisions,” the real power lay with Shipley. The secretary, Davis pointed out, “trusts her implicitly.”Footnote ⁷⁹

Studying the rise of the Passport Division thus provides an opportunity to explore the role of reputation in institutional development. As Daniel Carpenter and George Krause have argued, “the reputation-centered account of administration and administrative politics is in its relative infancy.”Footnote ⁸⁰ Carpenter has suggested focusing on four different aspects of reputation: whether the agency is seen to perform its tasks; if it has requisite capacities and skills; if it appears to act in a moral fashion; and if it acts according to acceptable procedures—as well as the ways that key congeries of audiences understood the agencies reputation.Footnote ⁸¹ The case of the Passport Division suggests that in the field of national security, the relevant audience consisted only of other government actors. Because the division was responsible for producing public goods, not balancing the claims of competing interest groups, what mattered was that key authorities thought it was producing those goods. And because the Passport Division had a reputation for performance and technical capacity, other officials continued to delegate authority to it; lack of clear procedures, if anything, may have helped its reputation for skilled performance. Interestingly, the Passport Division was responsible for producing two types of public goods, with two different standards for effective performance: it had to efficiently process the paperwork for all American citizens needing to travel, and it had to effectively filter out those citizens who intended to travel for purposes that seemed to endanger the national security or foreign policy interests of the United States. Shipley built a reputation as an excellent administrator of both tasks, leveraging the ambiguity of her role to expand the authority of her office. Understanding that process helps clarify the particular logics that built the authority of the Passport Division, but it also suggests the distinctive nature of reputational politics in the field of national security.

Shipley's authority was established, at least in part, by efficiently overseeing what we might think of as the routine administrative tasks of the Passport Division. The years of her rise overlapped with a period of remarkable expansion in the sheer quantity of work confronting the travel bureaucracy. In 1917, only 37,615 passports were issued in the United States; by 1956, almost 560,000 were being issued annually.Footnote ⁸² The intensifying workload, according to the New York Times, had actually killed Shipley's predecessor in the division, but Shipley brought to it a “genius for the organization of office routine, and a quiet authority that got results.”Footnote ⁸³ A Washington Post profile of Shipley in 1930 emphasized her efficiency: “she seems to be doing a dozen things at once. In her left hand is the telephone receiver transmitting swift orders to a clerk … in her right hand a pen racing over papers, being turned sheet after sheet by a clerk.” (The reporter also struggled to map the work of this “small and smartly dressed woman” with “pretty, iron gray hair and deep intelligent eyes” onto the gendered assumptions of the day: “the room where government red tape has been cut into bits, and by a woman, is a paradox of masculine efficiency and feminine charm.”Footnote ⁸⁴) In truth, much of Shipley's efficiency seems to have been wrung out of her overworked staff. “Her subordinates complain she makes Simon Legree seem like little Eva,” reported the Saturday Evening Post. Still, the magazine added without explanation, “they are devoted to her.”Footnote ⁸⁵ While there was apparently a great deal of turnover in the lower ranks, the senior leadership had long tenures with the division, often more than twenty years.Footnote ⁸⁶ The result was an office that ran a potentially thankless task quickly and efficiently.

Even better, the Passport Division was a revenue generator. In 1920, passport fees were set at the relatively high level of $10. This prompted one congressman to ask, incredulously, “we are not operating the passport department as a money-making devise, are we?” A fellow congressman responded, accurately—“the general supposition is that we are.”Footnote ⁸⁷ By 1927, the division brought in $1.5 million, even though it cost only $124,000 to run.Footnote ⁸⁸ A quarter-century later, Shipley could boast to Congress that “we take care of a lot of other departments” because “we have a tremendous surplus over our costs.”Footnote ⁸⁹ That made Shipley “genuinely popular at the Capitol.” “Up on the Hill,” observed journalist Maxine Davis in the Saturday Evening Post, “they respect her as a good businessman, and they don't even try to interfere with her.”Footnote ⁹⁰

At the same time as Shipley was building a reputation as a skilled manager of bureaucratic logistics, she also developed a reputation as a shrewd and fastidious defender of national security interests. This was revealed by a curious diplomatic incident in March 1944. Stalin had invited a Polish American priest, Stanislaus Orlemanski, to Moscow to discuss the postwar status of Poland. Stalin apparently believed that Orlemanski, an obscure Catholic priest from Springfield, Massachusetts, was an influential representative of Polish American and Catholic groups in the United States, and this seems to have been an effort to improve relations with these groups. It backfired, not least because it caused a scandal among conservatives who suspected FDR of backdoor dealing and Orlemanski of fellow-traveling. In a press conference, FDR defended the Orlemanski trip by casting it as a private venture, of which he had no knowledge, and by deploying the fact that Shipley's office had approved Orlemanski's travel. “She's grand,” the president asserted, “a regular ‘ogre.’ A wonderful ‘ogre.’ Well, if you can get by Mrs. Shipley, it means you have conformed, you have lived up to the law, and everything else.”Footnote ⁹¹

Political officials were inclined to defer to a travel bureaucracy that raised money and discharged its duties efficiently. Meanwhile, the legitimacy of a national security bureaucracy rested on a rather different logic—that of risk aversion. This logic was made explicit in World War I–era hearings on travel control. Then, a few congresspeople had raised concerns that delegating too much authority over travel to an executive branch might interfere with the ability of individual Americans to travel. Trying to respect the ability of individuals to travel, responded security-minded advocates of powerful travel regulations, failed to consider the grave implications posed by a threatening geopolitical environment. “There are lots of cases in war time where, if you do not shoot first and then ask questions, we will have a repetition of the Tuscania incident,” asserted Warren Van Slye of the Naval Intelligence Bureau. “The harm in the individual case is trifling as compared to the danger to the country.”Footnote ⁹² As the Passport Division built its authority, it had to assure such risk-averse actors that it was as a hawkish defender of national security and an accurate judge of the foreign policy interests of the United States. As FDR's comments revealed, Shipley did just that.

It helped that Shipley shared a worldview with other representatives of the nascent security apparatus. Family and ideological ties bound Shipley to the counter-subversive state. One of her brothers, Alexander Bielaski, was director of a precursor to the FBI; the other, Frank, directed investigations for the Office of Strategic Service; a sister, Alice, had a thirty-year career with the Army's G-2 Division and the CIA. They seemed to share a world view. “One of the things I believe in,” boasted Shipley in 1953, “is refusing passports to communists.” In 1953, reflecting her reputation and her national security bona fides, Shipley was appointed chairperson of the Loyalty Security Appeals Board in the State Department—giving her all but the final word as to whether or not a State Department employee should be fired during the height of the Second Red Scare.Footnote ⁹³ Unsurprisingly, therefore, passports were denied to the same sorts of individuals who were otherwise pilloried and persecuted in the Second Red Scare. After their run-ins with the Hollywood Blacklist, Ring Lardner Jr., Donald Ogden Stewart, Edward G. Robinson, and Carl Foreman were all denied passports in the 1950s.Footnote ⁹⁴ Minor New Deal officials, such as Walter Packer and Charlotte Towles, similarly had their passports denied after being criticized by McCarthyite politicians.Footnote ⁹⁵

What underpinned these judgments, however, was not just security consciousness or a desire to punish or censor political dissidents (though that was certainly part of it). Rather, Shipley used her authority to regulate travel as part of an effort to ensure the perpetuation of only those forms of internationalism that aligned with her vision of American interests. Operating as a filter on the networks connecting Americans with the world and carefully allowing the travel of only approved Americans, passport denial was a mode of regulating internationalism. We should, in other words, take seriously the State Department's claim that it was conducting foreign policy when it denied passports to Americans. Those traveling for reasons compatible with America's foreign relations (as understood by the Passport Division) were granted passports; those traveling at cross-purposes were kept at home. As early as 1930, for instance, Russell Raymond Voorhes was denied a passport because he had been engaged in “active anti-American propaganda as well as participating in local politics” in Central America.Footnote ⁹⁶ Such concerns explain the curious practice of “grounding” one's dissidents rather than exiling them—if the issue were simply security, why not remove dissidents from the body politic?

The rise of passport denial thus testifies to a new, and quite explicit, State Department interest in controlling international connections and international image.Footnote ⁹⁷ It was no accident that the prime targets of passport denial were those Americans traveling internationally as part of anti-statist, or “un-American,” international projects: international communism, international science, pacifism, and international racial solidarity.Footnote ⁹⁸ It was telling, for instance, that the two most famous cases of passport denial targeted perhaps the two most famous black internationalists of the period: W.E.B. Du Bois and Paul Robeson. Shipley made the stakes perfectly explicit, telling Robeson that in speaking out about colonialism, he was “meddling in matters within the exclusive jurisdiction of the Secretary of State.” State Department legal briefs on the Robeson affair doubled down on this agenda. In 1952, noting that Robeson “has been for years extremely active politically on behalf of independence of the colonial peoples of Africa,” this interfered with the president's role as the “sole organ” in the “field of international relations.” While decolonization “may be a highly laudable aim,” State concluded, “the diplomatic embarrassment that could arise from the presence abroad of such a political meddler, traveling under the protection of an American passport, is easily imaginable.”Footnote ⁹⁹

Defining who was a “political meddler,” of course, was a fundamentally political matter, as revealed by Linus Pauling's difficulties with the Passport Division. A renowned chemist, who held, by the early 1950s, multiple honorary degrees as well as a Presidential Medal of Honor for World War II research on both medicine and explosives, Pauling was three times denied a passport in the early Cold War. The first time, Shipley denied him a passport to travel to speak at the Royal Society of London and to receive an honorary degree from the University of Toulouse because his travel “would not be in the best interests of the United States.” After the incident became the subject of international and domestic press criticism—Senator Wayne Morse (R-OR) gave a speech in the Senate excoriating the Passport Division's “tyrannical, arbitrary and capricious exercise of discretion”—Pauling was given a temporary, limited passport that allowed him to travel to England and France to give the lectures.Footnote ¹⁰⁰ Over the next year, Pauling received four such limited passports, but at the end of 1953, he was again refused a passport for a trip to give talks in Thailand, Japan, Israel, Greece, and India. (He was to “take part with Nehru in the dedication of a new science laboratory.”) A subsequent effort to travel to India, six months later, was also met with a refusal. This time, Shipley offered an explanation. Despite the fact that Pauling had signed repeated affidavits that he was not a member of the Communist Party, Shipley's office had knowledge of allegations that Pauling was a “concealed member of the Communist Party.” Shipley also listed twenty-three other allegations that Pauling had followed the Communist Party line—he had spoken at a rally against the hydrogen bomb, given a speech opposing the “witch-hunt and communist scare” of the Hollywood 10, called for the end of anti-Russian and anti-Communistic propaganda, claimed that there was no reason for dismissing a Communist as a professor, written a letter to the president asking for the commutation of the death sentence in the Rosenberg case, and so forth. As Pauling pointed out in an appeal of the charges, these were all activities that fell well within the exercise of his First Amendment rights. Nevertheless, on October 1, Shipley denied Pauling's appeal—her judgments about who was fit to travel were unchanging.Footnote ¹⁰¹

The next month, however, Pauling was awarded a Nobel Prize for Chemistry. On November 19, the State Department decided that Pauling could, in fact, be issued a passport to travel to Stockholm. The reversal revealed the arbitrary and discretionary power that underpinned passport denial. Asked by a congressional committee to explain why a passport had been issued to a man who had been considered a concealed Communist only weeks before, Scott McLeod, the head of State's Bureau of Security and Consular Affairs, attributed it to a “self-generated appeal” from within the department. “The people in the Department do read the newspapers,” McLeod explained. “We do not operate in a complete ivory tower down there. And when the announcement of the Nobel prize was made, I think that the question of his passport was then considered at a high level.”Footnote ¹⁰²

In short, passport denial remained a matter of political judgment. Cold War security officials needed to consider questions of image as well as security. To administer it effectively required not simply the draconian application of security laws; it also required the skilled assessments of a bureaucrat who had a reputation for fair-minded, accurate judgments and an expansive, flexible evaluation of the nation's foreign policy interests. As Shipley made her decisions about whose travel was in the “best interests” of the United States, she relied on her reputation for skilled judgment. “We have no standard practice where things can [go] through a machine,” Shipley explained of her decisions to issue student exchange passports in 1952—“You have to look at the students to see whether any of them are going to one of these communist countries.”Footnote ¹⁰³ Nevertheless, as this fear of communism revealed, Shipley's core values lay close to the counter-subversive ideals of the blooming Cold War security state, which helped build her legitimacy with other like-minded security officials.

Shipley's reputation for appropriately adjudicating travel policy decisions was directly aided by the Passport Division's notoriously opaque procedures. It could claim such political judgments as the application of technical expertise and skill by drawing on its reputation for bureaucratic efficiency. The division collected huge amounts of paperwork as it regulated travel, which it turned into a vast filing system that could be used as it screened for security risks. By the 1950s there were some 12 to 20 million index cards and folders stored in the Winder Building on the corner of 17th and F Streets in Washington, DC. Testifying to the lack of transparency about the division's practices, some journalists thought they were stored in sealed “upper floors” of the building, others in the basement—a “dank dungeon … rat and termite infested,” according the New York Times, “where files are stored, tied in tape. There they gather dust and get more and more out of date.”Footnote ¹⁰⁴ The Passport Division also had 80-odd investigators working in its twenty field offices who could look into suspicious applications.Footnote ¹⁰⁵ The sheer quantity of its files allowed the division to represent itself with considerable expertise when it came to adjudicating security risks—it had access to the information.

And while the Passport Division was meticulous in retaining its investigative records, it was far from transparent about its own processes—it didn't even order tabulating equipment that would allow it to keep accurate passport statistics until 1955.Footnote ¹⁰⁶ In part, this echoed the notorious secrecy of the FBI and of the security branches more broadly. It also reflected the practices of the early twentieth-century State Department—one of Shipley's mentors was Assistant Secretary of State Alvey Adee, who notoriously burned his papers at the end of his four-decade career at State.Footnote ¹⁰⁷ But the lack of transparency makes it very hard to determine exactly how many passports, in total, were being denied. (Even if a full census of passport denials existed, it would understate the impact of the practice—we will never know how many Americans, afraid to have their passports denied, decided never to apply for one.Footnote ¹⁰⁸)

The lack of transparency was particularly significant, however, because it gave the division considerable flexibility in representing its security activities to other branches of the government. Officials cited widely varied numbers of denials, possibly shifting their answers with the political winds. In 1952, for instance, Shipley claimed to have recently withdrawn “two hundred and some odd passports” and to be in the process of withdrawing a further 450, though she was vague as to the precise period.Footnote ¹⁰⁹ Six months later, Acheson claimed that only ninety-five passports had been denied in the previous twelve months, with a further ninety-five recalled.Footnote ¹¹⁰ In 1957, the Passport Division reported it had made 275 denials on the grounds of communism between 1952 and 1956; it also claimed that it had denied 8,213 passports in total in the previous year, of which only thirteen were on grounds of communism—but it also failed to provide a reason for 5,532 of the denials.Footnote ¹¹¹

In the absence of clear data or transparent procedures, Shipley was able to build an air of respect based on an intermingling of distinct modes of reputation—her security judgments appealed to political actors who shared her sense of national interests, and her logistical management won widespread praise. These were distinct forms of legitimacy, but the audience for both was the same. Shipley had the authority and reputation to build on early delegations of power to the Passport Division and become a leading advocate for further restrictions on travel, as well as the further enhancement of the national security state. In 1941, when she approached Congress testify that she needed new powers in a revised version of the Travel Control Act, she was warmly welcomed. “That opinion, coming from one whom I consider one of the most efficient public servants in the US,” fawned Representative John Martin Vorys (R-OH), “has great weight with me.”Footnote ¹¹² By the early Cold War, Shipley was able to advocate for policy not only in her own field but also more broadly in the security field. Pat McCarran said that many of the counter-subversive measures in the 1952 McCarran-Walter Act “came from the mind of Mrs. Shipley.” According to one Foreign Service Officer in 1953, immigration authorities checked in with “Ma [Shipley]” for “practically every important decision they make.”Footnote ¹¹³

The history of the Passport Division thus suggests the importance of personal and institutional reputation to the legitimacy of the early security bureaucracy. Scholars have long stressed the centrality of J. Edgar Hoover's reputation to the rise of the FBI, but that has appeared to be an idiosyncratic development, unsuitable to generalization.Footnote ¹¹⁴ However, the similarities between Hoover's FBI and Shipley's Passport Division—the long tenure, the personal authority, the reputation for efficiency and effectiveness, the opaque bureaucratic procedures, the files—suggest that such visible, symbolic bureaucratic figures may have been crucial handmaidens to the rise of the security state. Hoover and Shipley were able to leverage reputations for efficient management of vast bureaucracies and security-minded judgments about geopolitical threats to be entrusted with sweeping and expanding authority over their domains. Their authority helped define an increasingly large field of state activity and blossomed alongside it.

3. The Right to Travel

After decades of respect for Shipley's authority over the field of travel control, the 1950s did witness the emergence of challenges to the politics of passport denial. Significantly, these came primarily not from within the state, but from citizens who claimed that being denied a passport interfered with their constitutional rights. They thus turned to the courts, seeking to define and assert a right to travel. While these arguments that the Passport Division violated due process rights did bear some fruit in challenging the practice of passport denial on the grounds of political ideology, they were only partially successful in circumscribing the autonomy of Passport Division in the field of travel control. After decades of claims that the State Department needed discretion in the field of travel as part of its control over foreign policy, courts were inclined to defer to the legitimacy of some forms of travel control. Ideological tests for the issuance of passports were thus ruled illegitimate, seen as interferences with the rights of citizens. But area restrictions on travel were seen as legitimate components of bureaucratic policymaking. Narrating the history of legal challenges to the Passport Division's autonomy, this section thus reveals the ways that the early consolidation of the Passport Division's autonomy was able to withstand the subsequent development of rights claims in the field. It tells us something about the stickiness of bureaucratic autonomy in the field of foreign affairs and about the significance of timing in the articulation of rights claims. And as rights protections ended ideological restrictions, but not area restrictions, the legal history of passport denial reveals the bifurcated development of due process rights in the postwar U.S. state—citizens enjoyed due process rights in domestic fields, but not foreign affairs fields.

Given the ostensible commitments of the United States to liberal internationalism during the Cold War, many critics argued that passport denial was a hypocritical policy.Footnote ¹¹⁵ In 1948, when Irving De Witt Talmade, editor of foreign affairs for Scholastic Magazines, was denied a passport to travel to Palestine, he complained that it was “an infringement of the free flow of information principle of the United Nations which this country has pledged itself to uphold.”Footnote ¹¹⁶ Reginald Parker observed in the Virginia Law Review that excluding citizens from “going abroad and getting acquainted with the outer world is indeed the central meaning of the phrase ‘iron curtain.’”Footnote ¹¹⁷ Sen. Hubert Humphrey (D-MN) worried that passport denials might “irreparably damage our international standing by giving the impression that we do not practice at home what we preach abroad.”Footnote ¹¹⁸ Senator Wayne Morse, then a Republican, argued that the passport practices undermined democracy and transformed the United States into a “government by unchecked, arbitrary discretion”—he called for Acheson's resignation over the matter.Footnote ¹¹⁹ Even Whittaker Chambers was struck by the problem, writing to William Buckley that “the spectacle of an artist like Paul Robeson, denied a passport by his own government, makes us traduced of other nations.”Footnote ¹²⁰

Critics soon began to argue that being denied a passport was an interference with what was increasingly dubbed a “right to travel.” The Federation of American Scientists, for instance, claimed that the “passport should be recognized as a right of the U.S. citizen, not merely a privilege.”Footnote ¹²¹ Morse asserted that “although obtaining a passport is not a matter of absolute right, it is a very precious right.”Footnote ¹²² Law journals ran articles exploring “the constitutional right to travel” and the “right to go abroad.”Footnote ¹²³

Claiming that passport denial violated a constitutional right made perfect rhetorical and political sense in the early Cold War, but it was far from clear whether it had any legs as a legal claim. The State Department had long claimed that a passport was only a privilege, not a right.Footnote ¹²⁴ As recently as 1940, David Riesman had concluded that “no constitutional objection to the restrictions on travel seems tenable. The Supreme Court has ever been particularly solicitous to preserve the federal government's power in the international sphere.”Footnote ¹²⁵ In 1952, Judge Charles Wyzanski agreed, observing in the Atlantic that it was “an open question whether the Bill of Rights assures [the American citizen] the privilege of foreign travel.”Footnote ¹²⁶ Decades of deference to the State Department's power over travel policy meant that rights claims in the field faced an uphill battle.

Nevertheless, opponents of passport denial forged ahead in an effort to claim such a right to travel. They sought to establish it in different ways. Some referred back to classical texts, such as Clauses 41 and 42 of Magna Carta, which provided rights “to any person … to go out of our kingdom, and to return.” Alternatively, they turned to Blackstone's declaration that “everybody has, or at least assumes, the liberty of going abroad when he pleases.”Footnote ¹²⁷ Others turned to Supreme Court decisions which had recognized, in various ways, a right to free movement within the United States. In 1867, the Court had ruled unconstitutional a tax on those exiting the state of Nevada, because it interfered with the rights of national citizenship and one's ability to access the federal government. In a Gilded Age liberty of contract case concerning taxes on emigration agents, it had declared that the “right to locomotion … is a right secured by the Fourteenth Amendment.” And in 1941, the Court had ruled that Californian efforts to block the immigration of indigent Okies was an unconstitutional burden on interstate commerce.Footnote ¹²⁸ None of these logics necessarily applied to international travel. Still, opponents of passport control drew on these decisions to argue that a right to locomotion was a part of “liberty” under the Fifth Amendment.Footnote ¹²⁹ Others, however, preferred a different form of rights claim. They turned to the First Amendment, arguing that the ability to travel to gather information and meet with foreigners was essential to freedoms of expression and association.Footnote ¹³⁰ As Judge Wyzanski put it in the Atlantic, “travel does not differ from any other exercise of the manifold freedoms of expression…. in all these liberties the principal element is the stretching of the mind to accommodate the growing spirit.”Footnote ¹³¹

The first legal challenge to the passport regime simply combined all of these potential arguments. In 1950, Paul Robeson argued that when the secretary of state had relied on discretionary authority to deny him a passport, it had violated the First, Fifth, Ninth, and Tenth Amendments, as well as Article 1, Section 9, and Article 3 of the Constitution. In the face of State Department assertions of its unreviewable discretion over foreign affairs, the court dismissed, claiming a lack of jurisdiction.Footnote ¹³²

The next year, however, a more targeted legal challenge was more successful. In 1951, Anne Bauer, a naturalized American citizen who had previously worked for the Office of War Information and the U.S. Military Government in Occupied Germany and who now worked as a freelance journalist in Paris, had her passport revoked by the State Department. State provided no reasons for the decision, beyond the standard assertion that her activities were “contrary to the best interests of the U.S.” Without a passport, Bauer was essentially required to return to the United States. So she went to court, arguing that being denied a passport without a hearing violated her due process rights. The State Department responded, as it had in the Robeson case, that the issuance and revocation of passports fell solely within the domain of foreign affairs, which meant that the executive branch had “absolute discretion” in the matter. In a two to one decision in July, the U.S. District Court for the District of Columbia (hereinafter, the U.S. District Court for DC) sided with Bauer, drawing on domestic right to locomotion cases to recognize a constitutional right to travel internationally. (“It is difficult to see where, in principle, freedom to travel outside the United States is any less an attribute of personal liberty. Especially is this true today, when modern transportation has made all the world easily accessible.”) It was an admittedly narrow decision, one that still deferred to the bureaucratic autonomy of the Passport Division. Bauer had claimed only the right to a hearing, not a passport, and the ruling granted “wide discretion” to the State Department on passport matters. Still, it was significant that for the first time a court had ruled that State did not have “absolute discretion” in the field. As Eugene Gressman noted in the New Republic, State was “slowly realizing that it cannot continue to ridicule and ignore the constitutional right of American citizens to leave the US.”Footnote ¹³³

In light of the Bauer decision, as well as simultaneous public criticism of the first denial of Linus Pauling's passport, State announced new passport procedures on September 2, 1952. They were intended to provide due process in denial cases.Footnote ¹³⁴ Applicants who were denied passports now had the right to request a hearing with a passport official; if they were again denied a passport, they were provided with a right to appeal to the newly created Board of Passport Appeals. As legal commentators were quick to point out, these were largely superficial changes (a fact revealed when, in spite of the new rules, Pauling was again denied a passport). While appellants were now entitled to know the reasons their passports had been denied, State only had to inform them to the extent that “security limitations permit,” and appellants were provided no right to access confidential information used in the decision. The three-person Appeals Board was to be appointed by the secretary of state, and was to be only advisory; the secretary of state retained final, nonreviewable, decision-making authority in all cases. And State was careful to reserve to itself the right to deny passports for political reasons. The right to appeal, it declared, “would not be extended to communists and … passports would continue to be denied to persons who might work against United States foreign policy while abroad.”Footnote ¹³⁵ The new regulations authorized the secretary of state to deny passports when he believed the “person's activities abroad would 1) violate the laws of the U.S. 2) be prejudicial to the orderly conduct of foreign relations or 3) otherwise be prejudicial to the interests of the U.S.” The new regulations also outlined three broad and vague categories of “persons supporting the communist movement” who would be denied passports: persons who were members of the Communist Party, or who had recently left it; persons who were acting for the Communist movement and “who engage in activities which support” it; and persons “to whom there is reason to believe … are going abroad to engage in activities which will advance the Communist movement.” Before one could even appeal a decision, one had to sign an affidavit that one was not, and never had been, a member of the Communist Party.Footnote ¹³⁶

In all, the new procedures hardly impinged on the autonomy of Shipley's office. The secretary of state, observed Charles M. Whelan in the Georgetown Law Review, “has provided himself with a way of circumventing the requirements of due process.”Footnote ¹³⁷ According to the New Republic, the reforms did nothing more than “infiltrate the passport procedure with all the inanities and unfairness of the federal employee loyalty program.”Footnote ¹³⁸ It was no wonder that little use was made of the new procedures. Ten months after the ostensible creation of the Board of Appeals, Shipley explained that it hadn't even established its operating procedures—no appeals had yet made it that far.Footnote ¹³⁹

But passports continued to be denied for political reasons, and applicants continued to turn to the courts for relief. In the mid-1950s, a series of court decisions began to specify more closely what kind of hearing was necessary to ensure that Americans were not denied passports without due process. Otto Nathan, who had twice been denied a passport to travel to Switzerland to carry out his duties as executor of Albert Einstein's estate, won a court ruling in 1954 that State was required to offer him a formal hearing even if he had not exhausted his administrative remedies by going to the Appeals Board. State stalled and, in March 1955, was ordered first to issue the passport immediately and then, on appeal, to hold a hearing within four days. The day before the deadline, two and a half years since his initial application, Nathan's passport was issued—State apparently preferred that outcome to recognizing court-ordered reform of its procedures.Footnote ¹⁴⁰ On the same day that the U.S. Court of Appeals for the District of Columbia Circuit (hereinafter, the DC Circuit Court) had given State its four-day deadline, it had also ruled that Max Schachtman had been arbitrarily denied his right to a passport. Schachtman, chairman of the Independent Socialist League, had been denied a passport because that organization was listed on the Attorney General's List of Subversive Organizations. Schachtman argued that it was improperly listed, and that he deserved the right to a hearing on the merits of his particular case. The court agreed with him and ordered a hearing. As in the Nathan case, State issued Schachtman's passport rather than concede to the authority of the judiciary to dictate passport procedure.Footnote ¹⁴¹

Meanwhile, Leonard Boudin, Nathan's lawyer, had found himself denied a passport because he was allegedly a supporter of the Communist Party. When Boudin challenged the decision before the Passport Appeals Board, he was unsuccessful, not least because the evidence upon which the denial was made was confidential, and he could not therefore contradict it. In November 1955, the U.S. District Court for DC ruled that such a hearing was an “empty gesture” not a “reasonable regulation.” It ordered a new hearing within twenty days, in which the evidence used for the decision had to appear on the record. The DC Circuit Court backed away from this position, arguing only that due process required that Boudin be informed of the precise findings against him, as well as the sorts of evidence used in reaching them; if the evidence needed to be secret, the secretary need only explain why. Nevertheless, State once again issued the passport rather than comply with these requirements.Footnote ¹⁴²

By the end of 1955, then, the law of passport denial was precariously poised. Courts were increasingly finding that Americans had a Fifth Amendment right to travel. Because passports were required to travel abroad, their issuance or denial raised constitutional questions. Passport decisions were not purely political matters to be left to executive discretion, courts had decided, which meant that the judiciary had a role in evaluating whether due process was provided to citizens. For this reason, Leonard Boudin proclaimed the Nathan and Schachtman decisions a “significant victory”—“in the single month of June 1955, the subversion of a decade has been undone, and the operation of the Department has become subject to the rule of law.”Footnote ¹⁴³

But matters were more complex than that. State still claimed wide discretion in the field, arguing that it had the right to determine matters of foreign policy. When its prerogatives were challenged by the courts, it had responded by issuing passports rather than subjecting itself to court-ordered procedure—it could thus claim only to have exercised its own judgment in the cases. State was still adamant that it was acting properly in the national interest. In 1956, in fact, the chief of the Passport Legal Division argued that the “present attack on the passport policy is a part of a general Communist offensive against the security policies of the U.S. Govt.”Footnote ¹⁴⁴ And none of the 1955 decisions denied State discretion over the proper conduct of foreign affairs. Rather, each argued that undue process had interfered with constitutional rights beyond what was reasonably required for the conduct of foreign affairs. As the University of Chicago Law Review observed, this meant that decisions like Schachtman had a “fundamental ambiguity”—if passport regulations were reasonably related to the conduct of foreign affairs, how far did the constitutional rights of citizens extend?Footnote ¹⁴⁵

Even after the 1955 decisions, courts were still inclined to answer that question by prioritizing State's prerogatives over the rights of citizens. In 1956, Robeson had sued again for his passport, asserting that the entire passport appeals apparatus was an unconstitutional interference with a fundamental right. Because he had not first exhausted his administrative remedies, his case was dismissed.Footnote ¹⁴⁶ And in 1957, a federal Appeals Court upheld the denial of passports to two men who were suspected of Communist sympathies—Rockwell Kent and Walter Briehl. Briehl was a psychiatrist who had sought to travel to mental health conferences in Geneva and Istanbul, and Shipley had asked Briehl to sign a non-Communist affidavit before she issued him a passport. When Briehl refused, Shipley denied him a passport because it “has been alleged that you were a communist.” When Briehl appealed to the Passport Appeals Board, he again refused to sign the affidavit, and the Board declined to consider his case. Briehl thus took the matter to court where, represented by Boudin, he argued that because he was traveling for nonpolitical purposes, the political tests required for his passport were unconstitutional. In a 5–3 decision, the DC Circuit Court sided with the State Department. Because the passport regulations clearly stated that associations with communism were grounds for making such a determination, Briehl had not been subjected to “unfettered discretion.” Glossing earlier decisions in Schachtman and Boudin, the majority argued that while it was necessary to balance foreign policy prerogatives with individual rights, the secretary of state had clear authority to determine when “the reasonable requirements of national security and interest and the delicate characteristics of foreign relations outweigh the needs or desires of an individual to travel.” And, opined the court in a classic piece of Cold War jurisprudence, “unless all the major foreign and fiscal policies of this Government, under two administrations of opposing political parties, have been a gigantic fraud, it is the unequivocal duty of the Department of State to prevent international incidents which might arouse hostile activities.” Because an “adherent of the Communist movement, clothed with American citizenship … may readily create [such] incidents,” it was sensible to prevent suspected Communists from traveling. The secretary of state, concluded the court, “may preclude potential matches from the international tinderbox.” Briehl had no right to his passport; the court was willing to defer to the authority of the secretary of state over the field of international travel, which had been constructed over the previous decades. Citing foundational national security law cases from the late 1930s, the court argued that it lacked both the information and expertise to properly judge foreign affairs policy.Footnote ¹⁴⁷

But during the appeals process, Briehl's case had been combined with the nearly identical case of Rockwell Kent, an artist who had been denied a passport for suspected communism, and who had likewise refused to sign an affidavit. When the DC Circuit Court ruled against Briehl, it likewise ruled against Kent. Both men then appealed to the Supreme Court. Both Kent and Briehl were represented by Boudin, who had been seeking a test case to take to the Supreme Court. In Kent, he had found an ideal client—a famous middle-brow artist, a noted leftist, and a committed activist.Footnote ¹⁴⁸ By 1955 Kent had twice been denied a passport, in part because he refused to sign an affidavit as to whether he was (or had ever been) a Communist. (Kent was happy to explain that he was not a Communist—he was a socialist—but he rejected as unconstitutional the demand that he sign an affidavit.) Kent had nevertheless been offered an informal hearing in the Passport Office, in which officials had read into the record political passages from Kent's autobiography, It's Me O Lord, and then declined to reconsider his application.Footnote ¹⁴⁹

When the Supreme Court heard Kent's appeal in April 1958, it considered for the first time the legality of the entire passport apparatus. Previous court challenges had focused only on claiming certain procedural rights as the State Department exercised its authority over the travel of citizens. Now the court was asked to consider whether the State Department's authority over travel was itself legitimate. Apparently sensing which way the wind was blowing, the State Department's brief for the first time conceded that the right to travel was included in the Fifth Amendment. But it nevertheless maintained that its regulations sufficiently balanced individual liberty with the need to regulate international affairs.Footnote ¹⁵⁰

A five-judge majority decided that the regulations were illegitimate. But the opinion, written by William Douglas, did so in a curious manner. While recognizing a Fifth Amendment right to travel, Douglas argued that “we need not decide the extent to which it can be curtailed.” Instead, he focused on the “extent, if any, to which Congress has authorized its curtailment.” Conducting a selective historical review of passport legislation, Douglas concluded that Congress had not granted the secretary of state the power to curtail the travel of citizens because of concerns about their beliefs and association. Rather, according to Douglas, at the time the 1926 Passport Act had delegated authority over passports to the secretary of state, administrative practice for denial had “jelled only around” cases where applicants were not citizens or where they had committed a crime. Given that the 1952 Immigration and Nationality Act simply reproduced those rules without deliberation, it was the 1926 administrative practices that provided the context for Congress's intent when delegating. In times of war, Douglas conceded, Congress had provided broader discretionary powers to the State Department. But he took advantage of the slippery way that Congress had revised the emergency provisions of the Travel Control Act to argue that the wartime emergency had ended in 1953, and that the “national emergency” governing passport rules since then implied no such clear delegation of broad authority.Footnote ¹⁵¹

The four dissenting judges argued correctly that this was a misreading of the history and the law. The distinction Douglas drew between earlier emergency proclamations and the 1953 proclamation was clever, but largely invented by him—as we have seen, the confused transition from one emergency proclamation to another was far from a deliberate act of jurisprudential signaling. And in choosing to interpret the 1952 statute according to administrative practice in 1926, Douglas basically pretended that the previous two and half decades of passport politics had not happened—he left unmentioned, for instance, the Internal Security Act of 1950. Even granting him his 1926 baseline ignored the fact that the Passport Division had been denying passports to alleged subversives prior to 1926. It was significant that to construct a rights claim in the field, Douglas essentially felt the need to turn back the clock and consider the issue without weighing the authority that the Passport Division had accumulated over the previous decades. The more detailed legislative and administrative history of Justice Tom Clark's dissenting opinion led him, and Justices Burton, Harlan, and Whitaker, to conclude that Congress had happily delegated broad authority to the State Department—and they were the better historians.

Nevertheless, on the basis of his selective interpretation of the history, Douglas “hesitate[d] to find in this broad generalized power an authority to trench so heavily on the rights of the citizen.” And while Douglas clearly suggested that any such explicit delegation would pose “important constitutional questions,” and while the opinion all but announced his distaste for passport denial, he stopped short of dealing with the substantive relationship between the citizen's right to travel and the executive's right to conduct foreign policy.Footnote ¹⁵² Why the civil libertarian Douglas chose this path is unclear. But he most likely needed to focus on issues of overly broad delegation rather than constitutional rights to hold together a fragile majority.Footnote ¹⁵³

Indeed, regardless of its oddities, the Kent decision rendered the Passport Division's regulations invalid, making it possible for alleged radicals to receive a passport to travel abroad.Footnote ¹⁵⁴ On July 5, Kent received his passport and promptly visited the Soviet Union to see an exhibit of his art. He subsequently published Of Men and Mountains: Being an Account of the European Travels of the Author and His Wife, Sally, Following Their Release from Continental Imprisonment.Footnote ¹⁵⁵

Efforts were soon made to undo the impact of the ruling, taking advantage of the fact that Douglas had stopped short of finding that passport denial for political beliefs was unconstitutional. All that Congress needed to do was specifically delegate that authority to the State Department. The day after the decision, Francis Walter (D-PA), the head of House Un-American Activities Committee (HUAC), proposed a bill that would provide the secretary of state explicit discretion to deny and revoke passports.Footnote ¹⁵⁶ (Walter also criticized the decision to issue Kent's passport so quickly; he thought that the Passport Division should have waited the full twenty-five days until the court order came into force.Footnote ¹⁵⁷) On July 7, President Eisenhower sent a special message to Congress urging the passage of new legislation to restore the authority of the secretary of state to regulate travel. He argued that such authority was “essential for the orderly conduct of our foreign relation and basic to the maintenance of our own national security.” And in the wake of the Kent decision, he “emphasize[d] the urgency” of legislation to clarify that authority—“each day and week that passes without it exposes us to great danger.”Footnote ¹⁵⁸

Two days later, a bill prepared in the State Department was introduced to Congress. It was an effort to put the 1952 State Department passport regulations on a statutory basis, with two post-Kent adjustments to move matters in a more liberal direction—State could only bar passports when there were “substantial grounds” to believe the individual would pose a security or foreign relations risk, and it could only base its decision on the activities of individuals within the past ten years, not on their beliefs. In the eyes of some Republicans, such as Senator Bourke Hickenlooper (R-IA), that meant the bill was “not strong enough to protect the basic interests of the U.S.” (Hickenlooper, in fact, thought the State Department had been “over-lenient” in issuing passports in the past.) But for liberal critics of the Passport Division, the bill did nothing more than re-create the problem. Senator Morse, for instance, thought the bill “an illegal, unconstitutional house of legislative ill fame…. never, during my 13 years of service in the Senate, have I been so deeply moved by what I consider to be an inexcusable attack on constitutional guarantees as are to be found in the Administration's proposed passport bill.” Liberals wanted a different statute. Senator J. William Fulbright (D-AR) proposed a bill that would only allow the denial of a passport if the individual violated laws while abroad or had been ordered to register with the Subversive Activities Control Board. Morse, along with Hubert Humphrey, Thomas Hennings, and others, introduced a yet more liberal alternate, which would only allow passport denials during a state of war, not in “so-called national emergencies.” Given this splintering of opinion, it soon became clear that there was no way for a bill to be favorably reported out of committee. Congress did not re-establish a procedure for denying passports on political grounds; the Kent decision served to end an era.Footnote ¹⁵⁹

Still, the ambiguities of the Kent decision meant that it stopped well short of establishing a constitutional right to travel, as its author, Justice Douglas, soon found out. In June 1959, the State Department denied Douglas a passport to travel to China, where the mountain-climbing enthusiast intended to work on a story for National Geographic magazine. State had a blanket prohibition against traveling to China, with the partial exception of journalists. Despite the magazine assignment, State did not consider Douglas to really be a journalist, and his application to travel was thus denied.Footnote ¹⁶⁰ The denial, less than a year after Douglas's decision in Kent, revealed that the State Department's control over travel continued, albeit in a different mode. Rather than regulating the movement of individuals because of their political beliefs, State was now regulating the access of all individuals to certain parts of the world. It argued that it required autonomy in making such travel regulations in order to protect the national security and foreign policy interests of the United States.

The use of such “area restrictions” dated to the interwar period, when State had tried to restrict travel to Spain, Ethiopia, and China. FDR's 1938 executive order had explicitly provided the secretary of state the authority to restrict a passport for use in certain countries. Area restrictions subsequently blossomed in the Cold War. In 1952, the State Department declared that passports were not valid for travel to Albania, Bulgaria, China, Czechoslovakia, Hungary, Poland, Romania, or the USSR unless specifically endorsed. For good measure, it thus stamped all passports as invalid for travel in Soviet bloc countries. In 1955, the stamp was changed to restrict travel only to those nations with whom the United States lacked diplomatic relations—Albania, Bulgaria, and what it artfully dubbed “those portions of China, Korea and Vietnam under Communist control.” In 1956, in the wake of the Suez Crisis, the State Department temporarily stopped issuing passports to Egypt, Israel, Jordan, and Syria.Footnote ¹⁶¹

The courts were quick to clarify that these area restrictions were a more legitimate mode of travel restriction than the ideological tests of the pre-Kent era. In 1956, journalist and activist William Worthy had his passport revoked when he spent forty-one days reporting in China in defiance of State Department prohibitions. When he subsequently applied for a new passport, Worthy refused to swear that he would abide by future travel restrictions—he had also defied the ban on travel to Hungary—and so his passport was denied. Like Du Bois and Robeson, Worthy was a noted black internationalist and civil rights activist, and he was being denied the ability to report from the Communist world. So he argued that the denial was of a piece with the ideological policing of passports and likewise unconstitutional. But the DC Circuit Court ruled that the “point here presented in no wise resembles the matter decided by the Supreme Court in Kent v Dulles” because “no beliefs, associations, or personal characteristics are involved.” The denial of Worthy's passport was upheld. The Passport Division had spent decades arguing that it needed the ability to regulate the movement of individuals in order to manage foreign affairs, and the court adopted the same framing: “In foreign affairs, especially in the intimate posture of today's world of jets, radio, and atomic power, an individual's uninhibited yen to go and to inquire may be circumscribed. A blustering inquisitor avowing his own freedom to go and do as he pleases can throw the whole international neighborhood into turmoil.” The Supreme Court declined to hear Worthy's appeal, and six years later, it upheld the broader constitutionality of travel restrictions in a case brought by a citizen who sought a passport to travel to Cuba.Footnote ¹⁶²

While passport denial for ideological reasons thus ended in the late 1950s, area restrictions simultaneously emerged as a major instrumentality of travel control. The evolution of travel restrictions reveals an important feature of the mid-century American state. As Ira Katznelson has argued, the state in the early Cold War was “janus-faced”—as the modern procedural state was being constructed in areas of domestic policy to protect the rights of American citizens, expanding state functions in the realm of foreign relations were exempted from such procedural reform.Footnote ¹⁶³ The regulation of passports sat astride this division. The State Department had claimed unlimited discretion over passports as part of its authority over foreign affairs. Advocates of the right to travel, meanwhile, argued that the issuance of passports affected the rights of citizens and thus needed to conform with the norms of liberal proceduralism within the modern administrative state. For this reason, many sought to apply the provisions of the Administrative Procedure Act to the hearings and appeals process for passport denials.Footnote ¹⁶⁴ That meant distinguishing passports from the issue of foreign relations. “Most important,” in the mind of Hubert Humphrey, was that the “issuance or denial of passports would be divorced from the day-to-day operation of the government's foreign policies.”Footnote ¹⁶⁵

In the end, passport reformers succeeded in wrestling the passport into the domestic realm by extending a Fifth Amendment right to domestic locomotion into a right to international travel. As Douglas observed in Kent, passports were not really a form of foreign relations—the diplomatic “function of the passport is subordinate. Its crucial function today is control over exit. And … the right of exit is a personal right.”Footnote ¹⁶⁶ That was sufficient to strike down passport denial for ideological reasons. But passport reformers did not succeed in challenging the assumption that control over travel remained an instrumentality of foreign policy. That was a claim that had deep legitimacy after decades of Passport Division activity in the field; rights claims in the field came too late to challenge deeper assumptions that unfettered travel posed national security risks. As a result, travel regulation mutated in the late 1950s and early 1960s, but it did not end. Area restrictions remained legitimate forms of travel control—procedurally neutral vis-à-vis the individual citizen, justified by political and judicial deference to the foreign policy imperatives of the Cold War state. A similar process of change and continuity occurred in the bureaucracy. In 1955, Ruth Shipley had stepped down after twenty-eight years at the helm. Frances Knight, her hand-picked successor, began a reign that would last until the Carter administration. During those twenty-two years, Knight, a protégé of McCarthyite anti-communist networks and a darling of right-wing commentators, ran the Passport Division with a familiar blend of autonomy and authority—she was, in the words of Sanford Ungar, a “woman so powerful, cagey and persistent that she has often been compared with J. Edgar Hoover.”Footnote ¹⁶⁷

The story of Knight's tenure in the Passport Division, which must await another historian, revealed the surprising durability of the powers that Shipley had accrued. Under Shipley, power over the rights of American citizens to travel had pooled in the hands of one bureaucracy. Understanding how that happened provides new insight into the rise of the national security state. The powers of the Passport Division were constructed by a decades-long process that dated back to World War I and were mutually constituted by legislative deference, executive policymaking, and bureaucratic initiative. As these various branches of the state acted together, they created a self-reinforcing political logic that defined an increasingly large field of travel regulation and deferred to the policy judgments of Shipley as to the best ways to manage it. The motor that drove the process was Shipley's reputation for both hawkish monitoring of the foreign policy interests of the U.S. state and bureaucratic efficiency in the management of travel documentation—a reputation that was built, in part, by distinctly opaque procedures. The rise of the Passport Division thus reveals some surprising features of the early security state as it emerged by the early Cold War, particularly its interest in managing the mobility of American citizens, and the centrality of the personal reputation of its head to its legitimacy. Taken together, by the early Cold War travel control had emerged as a central feature of the national security state. Civil libertarians challenged this form of state power, arguing that it was unconstitutional and illegitimate. But they were only partially successful in rolling back powers of the Passport Division, which were too deeply entrenched by the time that rights claims emerged in the field. Civil libertarians succeeded in ending passport denial on ideological grounds, but they could not dislodge fundamental assumptions about the power of the state to regulate the international travel of American citizens. Shipley's Passport Division had remade the politics of the passport.