with whom
EDGERTON, Chief Judge,concurs (dissenting) .
The Secretary of State says his regulations, pursuant to which he denies passports to persons who “support the Communist movement,” are a valid exercise of discretion delegated to him by the President. I think they are invalid because (1) the President did not undertake to delegate the discretion the Secretary claims and (2) the President himself did not have this discretion.
For many years the Secretary of State has claimed an unlimited discretion to deny passports.1 During the greater part of our history, when a passport was merely a comfort to the traveller, but not a necessity,2 his claim went unchallenged. Since 1941, however, a passport has been a travel necessity,3 and when the Secretary began denying or revoking passports on such grounds as “activities contrary to the best interests of the United States,” or Communist membership or support, applicants turned to the courts for relief.4
Bauer v. Acheson, D.C.1952, 106 F.Supp. 445, was the first reported case. There the Secretary based his authority on the President’s inherent foreign relations power, and on the provision of 22 U.S.C.A. § 211a that the Secretary “may grant * * * passports * * * under such rules as the President shall designate and prescribe * * The court held there was no authority to refuse or revoke a passport without notice and hearing. Less than two months later and presumably as a result of that decision, the Secretary promulgated the regulations now before us, declaring Communist supporters ineligible for passports and es*580tablishing a notice and hearing procedure.5 Until then, the only substantive passport qualification ever imposed by any statute6 or regulation was citizenship.7
As authority for his new regulations, the Secretary relied on 22 U.S.C.A. § 211a,8 the same statute he had relied on in Bauer. He continued this reliance in later cases. In the present ease he says: “In the light of the broad language of this statute, there is no occasion here to determine whether the President’s plenary executive power over foreign affairs in itself furnishes sufficient authority to the Secretary to deny passports to American citizens in accordance with the reasonable standards prescribed by him.”9 But he adds that “if some additional source of authority were needed, it is supplied by the travel control statutes which Congress has repeatedly enacted”;10 and “the language of the [travel control] statute makes it plain that during [a proclaimed emergency] this authorization becomes incorporated, in effect, into § 211a itself.”
But in Stewart v. Dulles, 100 U.S.App. D.C.-, 248 F.2d 602, briefed and argued after the present case and now awaiting decision, the Secretary conceded that § 211a “confers no substantive power,” and he “assume [d]” that he “had no authority to impose this kind of direct restraint upon travel.” “It was for this very reason,” he said, “that Congress enacted what is now 8 U.S.C.A. § 1185, authorizing the President, in times of war or national emergency, to use his inherent powers in the field of passport issuance as a means of directly controlling the travel of citizens.” The argument now is that (1) 22 U.S.C.A. § 211a and the inherent executive power, though ineffective to control travel, give the Secretary discretion as to passport issuance; and (2) under 8 U.S.C.A. § 1185, upon proclamation of an emergency by the President, any person to whom the Secretary, in his discretion, refuses a passport, may not leave the country. Thus, the Secretary claims that Congress has delegated to him, through the President, the power to establish categories of persons ineligible to leave the country.
I.
The Claimed Delegation
The authority conferred on the President by 22 U.S.C.A. § 211a was exercised through Executive Order No. 7856, on March 31, 1938.11 The Executive Order designated only one general category of passport eligibility, that created by 22 U.S.C.A. § 212, namely, persons who are citizens of the United States. 22 C.F.R. § 51.2 (1949). Beyond that, the order confined itself to specifying the formal requirements of the passport application (e.g., the type and size of photographs to be attached), *581id., § 51.23q, and the evidence of citizenship to be furnished, and providing for amendment, renewal and extension of passports and specifying the fees to be collected. In addition, it authorized the Secretary of State, “in his discretion to refuse to issue a passport * * *” and “to make regulations * * * additional to the rules in this part and not inconsistent therewith.” Id., §§ 51.-75, 51.77. Pursuant to this latter authority, the Secretary, on the day of the President’s order, issued Departmental Order 749, promulgating the Department’s regulations, consisting merely of procedural implementation of the President’s rules.12
The regulations in question in the present case, which the Secretary added four years later and after the Bauer decision, were the first attempt, by regulations issued under 22 U.S.C.A. § 211a, to affect anything more than procedure or form.13 In view of the purely procedural nature of the President’s rules, his accompanying grant to the Secretary of authority to make “additional * * * and not inconsistent” regulations confers no power to create substantive disqualifications.
Nor did the President’s Proclamation No. 3004,14 making operative the travel control provision of 8 U.S.C.A. § 1185, give the Secretary this authority. Section 1185 prohibits departure from the United States without a valid passport during a proclaimed emergency, “except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe * * When the proclamation was issued, regulations existing under an earlier proclamation were in force, providing generally that no person could enter or leave the country without a valid passport, except for travel to and from certain countries. 22 C.F.R. §§ 53.1-53.9 (1949). Proclamation No. 3004 did not undertake to grant power to the Secretary to control travel by establishing additional categories of passport ineligibility. It merely declared that departure and entry would be subject to the already established travel control regulations, 22 C.F. R. §§ 53.1-53.9, referring to them specifically and incorporating them into the proclamation,15 It added an authorization to the Secretary “to revoke, modify or amend such regulations as he may find the interests of the United States to require.” This authorization, like the authorization of Executive Order No. 7856 to issue “additional” passport regulations, must be read in its context. Thus read, it grants the Secretary discretion of the type already exercised in his existing travel control regulations, namely, to determine which parts of the world can be visited by Americans only if they have passports, but not to determine which Americans are to receive passports.
Thus neither Executive Order No. 7856, which confers upon the Secretary authority received by the President under 22 U.S.C.A. § 211a, nor Proclamation No. 3004, which confers upon the Secretary authority the President holds under 8 U.S.C.A. § 1185, undertakes to delegate to the Secretary any power to create substantive passport disqualifications.
*582Nor could the President delegate such power, for neither statute conferred it upon him.
II.
The President’s Statutory Power
A. The Passport Statutes Do Not Purport to Confer the Power Here Claimed.
Section 211a of 22 U.S.C.A. says nothing about categories of ineligibility. Indeed, the Secretary concedes that the purpose of the Act of August 18, 1856,16 from which § 211a derives, was to prohibit passport issuance by anyone other than the Secretary of State. Nothing in the legislative history of the 1856 statute suggests that the words “may grant and issue” confer power to set up substantive categories of ineligibility. From the little that history reveals, it appears that the purpose of Congress was merely to control the procedure of passport issuance.17 Fairly read § 211a grants the Executive only such discretion as may be necessary for elaborating a procedure for issuing passports, e.g., as to the type and quantum of evidence of citizenship.18 And so the statute was read by our Presidents in former times.19
Nor did 8 U.S.C.A. § 1185 authorize the President to create such substantive passport disqualifications as are contained in the regulations before us. Subsection (a) of § 1185 did not purport to give the President power to establish criteria for restricting anyone’s right to travel. It merely authorized him to invoke restrictions set forth in the statute if he found that “those provided otherwise than by this section” were inadequate to protect the public safety. Moreover, when the Act was first adopted in 1918 and when it was reenacted in 1941,20 there were no restrictions on citizens’ travel “provided otherwise than by this section.” What Congress had in mind, therefore, in § 1185(a), was the problem of movements of aliens, not citizens. And Congress set forth, in subparagraphs (1) through (7) of subsection (a), a system of exit and entry permits to control movements of aliens.
It is subsection (b) of § 1185 which is relevant to citizens. That subsection provided that, upon issuance of the President’s proclamation, “it shall, except as otherwise provided by the President, and subject to such limitations and exceptions as the President may authorize and prescribe, be unlawful for any citizen to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid passport.” Thus citizens were forbidden to travel without passports, but the President was authorized to establish conditions and exceptions to this prohibition. But the subsection did not authorize the President to decide which categories of citizens might receive passports.
Though neither 22 U.S.C.A. § 211a nor 8 U.S.C.A. § 1185 explicitly confers the authority the Secretary claims, he urges us to read them through a wide lens and find in them a congressional intent to authorize his regulations. His contention comes to this, that Congress has by implication, though not expressly, authorized the Executive to decide which Americans shall be confined within our boundaries. In my opinion such an intention may not be read into the statutes because (1) it would conflict with other expressions of congressional policy and (2) it would raise grave constitutional doubts.
*583B. The Secretary’s Reading of the Statutes Conflicts with Congressional Policy.
Almost a century ago, Congress declared that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness,” and decreed that “any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.” 15 Stat. 223-224 (1868), R.S. § 1999, 8 U.S.C. § 800 (1940).21 Although designed to apply especially to the rights of immigrants to shed their foreign nationalities, that Act of Congress “is also broad enough to cover, and does cover, the corresponding natural and inherent right of American citizens to expatriate themselves.” Savorgnan v. United States, 1950, 338 U.S. 491, 498 note 11, 70 S.Ct. 292, 296, 94 L.Ed. 287 22 The Supreme Court has held that the Citizenship Act of 1907 and the Nationality Act of 1940 “are to be read in the light of the declaration of policy favoring freedom of expatriation which stands unrepealed.” Id., 338 U.S. at pages 498-499, 70 S.Ct. at page 296. That same light, I think, illuminates 22 U.S.C.A. § 211a and 8 U.S.C.A. § 1185. Since expatriation is today impossible without leaving the country,23 the policy expressed by Congress in 1868 and never repealed precludes a reading of the passport and travel control statutes which would permit the Secretary of State to prevent citizens from leaving.
The Secretary’s construction of the statutes would impinge also upon the Internal Security Act of 1950.24 Congress there made it unlawful for a member of a Communist organization to apply for or use a passport, but only after such organization has registered under the Act or has been finally ordered to do so. Neither of those events has occurred.25 Moreover, the prohibition was circumscribed by procedural safeguards not found in the Secretary’s “Communist supporter” regulations involved here; and it was substantively limited to “members” of the proscribed organization, whereas the Secretary’s regulations apply “regardless of the formal state of [the applicant’s] affiliation with the Communist party * * *.”26 These declarations of congressional policy make it unlikely that by other statutes Congress intended to authorize a different policy.27 “The legislative process is especially qualified and the administrative process is especially unfit for the determination of major policies that depend more upon emotional bent and political instincts than upon investigation, hearing and analysis.” Davis, Administrative Law 57 (1951).
I would not construe the statutes as conferring upon the Secretary by implication broad powers which they do not explicitly confer, United States v. Minker, 1956, 350 U.S. 179, 190, 76 S.Ct. 281, 100 L.Ed. 185, especially when serious restraints on liberty are entailed. Ex parte Endo, 1944, 323 U.S. 283, 299-300, 65 S.Ct. 208, 89 L.Ed. 243.
*584C. The Secretary’s Reading of the Passport Statutes Is Constitutionally Doubtful.
The broad construction the Secretary would have us place on the passport statutes would raise grave constitutional doubts.28 Statutes must be construed narrowly if to do so avoids a serious constitutional question. United States v. Rumely, 1953, 345 U.S. 41, 46, 73 S.Ct. 543, 97 L.Ed. 770; United States v. Witkovich, 353 U.S. 194, 77 S.Ct. 779, 1 L.Ed.2d 765.
We recognized in Shachtman that the individual’s right to travel is a natural right protected by the Constitution.29 Since denial of a passport now abridges that right, passport applicants are entitled to both the procedural30 and substantive31 safeguards of the Fifth Amendment. The broad interpretation urged by the Secretary would require us to decide whether it is consistent with due process of law, and with First Amendment rights,32 to deprive an individual of so large a part of his liberty under the standards and procedures the Secretary employs; and whether, if Congress possesses such power, it may validly delegate to the Secretary or the President a “discretion * * * unconfined and vagrant * * * [not] canalized within banks that keep it from overflowing.” 33
The word “Communist” is not an incantation subverting at a stroke our Constitution and all our cherished liberties. If today the threat of Communism justifies confining within our boundaries any citizen who will not swear that he is not a Communist,34 tomorrow the same *585logic will justify control of movement from one state to another, for that is no less useful in communication than travel abroad. By no great extension of the court’s reasoning, an oath can be required as a condition to the enjoyment of every other right we have. Food, clothing, shelter, education, recreation— all help to sustain the individual, develop his powers, and make him a more dangerous antagonist.
The due process problem is not avoided by reliance upon Galvan v. Press, 1954, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; nor the First Amendment problem by reliance upon American Communications Ass’n v. Douds, 1950, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925.
In holding in Galvan that Congress could constitutionally provide for deportation of an alien who becomes a Communist after entry, the Supreme Court said: “The power of Congress over the admission of aliens and their right to remain is necessarily very broad, touching as it does basic aspects of national sovereignty, more particularly our foreign relations and the national security.” 35 The greater power which the Government possesses in respect of aliens36 may legitimatize treatment which could not lawfully be directed against citizens. Galvan provides no constitutional basis for banishing a citizen who becomes a Communist.
So far as the First Amendment problem is concerned, whether we apply the “clear and present danger test,”37 or some aspect of the “reasonable relation” test,38 we are engaged in weighing the individual’s need to be free against the Government’s need to restrain him. Each case is bound to turn on the nature of the freedom involved, the public detriment it conflicts with and the type of restraint imposed. It is unlikely that a case arising in one context will determine a case arising in another. Douds falls far short of determining our present problem.
In Douds the Court upheld the constitutionality of § 9(h) of the National Labor Relations Act, 29 U.S.C.A. § 159 (h), withdrawing N.L.R.B. privileges from unions whose officers fail to submit non-Communist affidavits. The Court found that, since unions are clothed by Federal law with great powers for good or evil, “the public interest in the good faith exercise of that power is very great.” 339 U.S. at pages 401-402, 70 S.Ct. at page 686. It observed that (1) “Section 9(h) touches only a relative handful of persons, leaving the great majority of persons of the identified affiliations and beliefs completely free from restraint,” id. 339 U.S. at page 404, 70 S.Ct. at page 687; (2) there is no constitutional right to occupy the position of a labor leader in the sense that “the loss of [the] particular position [would be] the loss of life or liberty,” id. 339 U.S. at page 409, 70 S.Ct. at page 689; (3) § 9(h) imposes no direct restraint on freedom of belief or association, since its “discouragements” operate “only against the combination of [particular] affiliations or beliefs with occupancy of a position of great power over the economy of the country,” id. 339 U.S. at pages 403-404, 70 S.Ct. at page 686 ;39 and (4) *586§ 9(h), if not complied with, makes it not impossible, but only more difficult for unions to remain effective, id. 339 U.S. at page 390, 70 S.Ct. 679.40
Whether travel by Communists is a danger on a par with their occupancy of powerful union offices is at least questionable. Prevention of travel does not prevent communication. Conspirators could still use the mails, cables, telephones, radio and, not least, foreign embassies and consulates in the United States. The discomfiture of a few individuals who would have to send messages rather than make speeches 41 may not, in the constitutional balancing process outweigh the citizen’s right to travel. On the other side of the scales, it appears that (1) the passport statutes, unlike that in Douds, touch not a handful of persons, but many thousands (in the Secretary’s view, as many thousands as he may choose to suspect); (2) unlike the statute in Douds, these involve a constitutionally protected right to travel; (3) they not only impose what Douds called an indirect restraint on First Amendment rights by “discouragement” of freedom of belief and association, but also directly affect the right to travel which may itself be a First Amendment right;42 and (4) these statutes make travel not difficult, but impossible.
If the design of the passport statutes, in depriving an individual of the right to travel, is to prevent him from making statements abroad critical of or embarrassing to our policies, or offensive to our political taste, they are the very type of legislation the First Amendment forbids. Thomas v. Collins, 1945, 323 U.S. 516, 65 S.Ct. 315; Near v. Minnesota, 1931, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357.43 If the statutes bar travel on account of “political affiliations and beliefs,” they are expressly condemned in Douds: “[such] circumstances [are] ordinarily irrelevant to permissible subjects of govermnment action.” 339 U.S. at page 391, 70 S.Ct. at page 680. It is most frequently argued, in justification of the power the Secretary claims, that travel of Communists may serve to promote an international conspiracy. Whether, under the Douds44 reasoning, that possibility justifies these regulations and puts to rest the constitutional doubts that arise is open to serious question.
Another alleged reason for abrogating the constitutional right to travel is that the American abroad may not only talk, but may also act in ways that conflict with our policies and interests and tend to cause international incidents. The Secretary of State embodies that reason in § 51.136 of his regulations,45 which is *587not invoked in this case.
During a recent visit to the United States by a foreign chief of state at the invitation of the President, an American mayor declared that the guest was unwelcome in his city. That announcement could hardly have been more prejudicial to our foreign relations if the mayor had been abroad when he made it. Yet no one has suggested that he could constitutionally have been prevented from making his announcement. At home our citizens are as free to do lawful acts as they are to speak their minds. The expectation that they may do things abroad which violate no laws is, I think, an insufficient basis for abrogating their right to leave the country.
If it is the fear of illegal conduct which purportedly justifies travel restriction, a factor which may tip the constitutional scale is “the availability of more moderate controls than those which the state has imposed.” Mr. Justice Frankfurter, concurring in Dennis v. United States, 1951, 341 U.S. 494, 542, 71 S.Ct. 857, 95 L.Ed. 1137, quoting Freund, On Understanding the Supreme Court. There are penal sanctions against the commission or the attempt or conspiracy to commit espionage, sabotage, treason, sedition and subversion.46 The Internal Security Act deals with conspiracies to do anything which would substantially contribute to the establishment of a foreign-directed totalitarian dictatorship.47 For persons who become or remain members of the Communist Party with knowledge, of its violent objectives, we have the Communist Control Act of 1954.48 We have statutes dealing with persons who act as agents of a foreign government,49 or those who have “correspondence” with a foreign government with intent to influence its measures in relation to disputes or controversies with our Government, or to defeat the measures of the United States.50 Our law even prohibits leaving the country with intent to avoid prosecution or punishment for certain listed offenses or to avoid giving testimony in certain criminal proceedings.51 In that they require proof of criminality and provide trial by jury, these statutes, despite their severe penalties, are more moderate controls than those the Secretary imposes. He claims that the peril involved in the possible machinations of such persons would justify a statute permitting him to deprive them of the right to travel even though he has no evidence which would justify prosecuting them under any of the penal statutes. I think it very doubtful that a statute could constitutionally grant the power to confine citizens to the country in such circumstances.52
*588Section 1732 of 22 U.S.C.A. calls upon the President to “use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release” of an American citizen “unjustly deprived of his liberty by or under the authority of any foreign government.” The majority says that since “an American with Communist affiliations” who gets into trouble abroad through his “political indiscretion” may invoke this statute, the Secretary of State must have the power to prevent the citizen from going abroad. But the 'American who becomes embroiled with foreign authorities can only request the aid of his Government; he cannot compel it. United States ex rel. Keefe v. Dulles, 1954, 94 U.S.App.D.C. 381, 384-385, 222 F.2d 390, 393-394, certiorari denied, 1955, 348 U.S. 952, 75 S.Ct. 440, 99 L.Ed. 743.
That the purported need to confine citizens to the country is claimed to spring from emergency conditions does not dispense with their constitutional rights.53 Mr. Justice Jackson pointed out in his concurring opinion in Youngstown Sheet & Tube Corp. v. Sawyer, 1952, 343 U.S. 579, 649-650, 72 S.Ct. 863, 877, 96 L.Ed. 1153:
“The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.”
The constitutional questions I have discussed are, in my view, not before us for decision. I mention them, as the Supreme Court said in Ex parte Endo, 1944, 323 U.S. 283, 299-300, 65 S.Ct. 208, 217, 89 L.Ed. 243, “* * * not to stir the constitutional issues which have been argued at the bar but to indicate the approach which [I] think should be made to an Act of Congress or an order of the Chief Executive that touches the sensitive area of right specifically guaranteed by the Constitution. * * * We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used.”
III.
The President’s Inherent Power
The Secretary of State has always treated it as a matter within his own discretion whether he would give a travelling citizen a document surrounding him with the aura of this Government’s protection and commending him to other governments. In Shachtman we noted the authorities “which have recognized a great breadth of Executive authority and discretion” in this regard.54 But, we *589pointed out: “Now it is unlawful for a citizen to travel to Europe and impossible to enter European countries without a passport.”55 The question is whether the Executive has power, by withholding a passport, to confine a citizen within the United States. The Constitution grants no such power. But the Secretary purports to find it in “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations * * United States v. Curtiss-Wright Export Corp., 1936, 299 U.S. 304, 320, 57 S.Ct. 216, 221.
Numerous cases both before and after Curtiss-Wright support the proposition that the President has broad powers in the field of foreign relations. But there is a great gulf between the powers involved in those cases and the power the Secretary claims here. Those cases all relate in some direct fashion to the Executive’s traditional power to do things which depend upon negotiations with foreign sovereignties or which bear directly upon our relations with foreign governments. What the Court upheld in Curtiss-Wright was the President’s “power to negotiate with foreign governments.” 56 It sustained delegation to the President of the function of declaring an embargo of munitions sales, because the function was to be exercised “after consultation with the governments of other American Republics and with their cooperation, as well as that of such other governments as [the President] may deem necessary * * 57 The other cases have recognized that it is for the Executive, or the Executive with Congress, free from judicial interference, to deal with such matters as recognition of foreign governments,58 assessment of treaty obligations,59 resolution of disputed sovereignties,60 acquisition of new lands,61 exclusion62 or expulsion 63 of aliens, imposition of emergency controls over alien property,64 establishment of an international war crimes tribunal65 allocation of an international air route,66 or creation of an interna*590tional “Mixed Claims Commission,”67 None of the “foreign affairs” cases, it^ has been observed, “involved a situation where the Executive action was specifically directed at restraining the freedom of a particular individual.”68 Chief Justice Marshall, describing those Executive powers which are beyond judicial control and citing the foreign affairs power as an example, said: “The subjects are political: they respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.” 69 Mar-bury v. Madison, 1803, 1 Cranch 137, 166, 2 L.Ed. 60. A characteristic of the political power which is to be exercised free of judicial interference is its “lack of satisfactory criteria for a judicial' determination.” Coleman v. Miller, 1939, 307 U.S. 433, 454-455, 59 S.Ct. 972, 982, 83 L.Ed. 1385.70 By this test I think it clear that the power the Secretary asserts here is not a political power.71
The Secretary finds authority to abridge the right to travel in what Curtiss-Wright recognized as an inherent executive power to deal with “a situation entirely external to the United States, and falling within the category of foreign affairs * * *.” 299 U.S. at page 315, 57 S.Ct. at page 218. Extending to internal affairs the President’s inherent power over external affairs has dangerous implications.72 *591Those implications have caused some authorities to shrink from the inherent power doctrine as from something “revolutionary and subversive of our constitutional system”;73 or to anticipate from it a carry-over to our national government of all the royal prerogatives which ancient common law associated with the foreign affairs powers of the King of England;74 or to fear that it “would, at a stroke, equip the Federal Government with every power possessed by any other sovereign State.” 75
In our complex world there are very few purely internal affairs. Foreign problems cast their shadows on the domestic scene and internal events influence foreign policy. The Department of State has declared that “There is no longer any real distinction between ‘domestic’ and ‘foreign’ affairs.76 If that is so, the inherent power doctrine could produce an extension of the executive power beyond any limits heretofore conceived; and the President, through his Secretary of State could preempt the internal security functions of Congress.
But the Supreme Court has confined the inherent foreign affairs power within accountable limits.77 I am convinced from my review of the authorities and my study of history that the power here claimed by the Secretary is beyond those limits. Curtiss-Wright declares that an extra-constitutional foreign relations power passed to the President from the British Crown. To say that all the powers of the Crown devolved upon the President would, of course, be inconsistent with the basic principle that every *592branch of the national government has only a limited power, and Curtiss-Wright does not even suggest such a thing.78
The British Crown had a prerogative to confine subjects to the realm by writs ne exeat regno,79 But it was not one of the prerogatives which devolved upon our President. It had its roots in the Crown’s earliest constitutional controversies with the clergy80 and the barons.81 By the year 1382, restraints against clerics and notables were relaxed, but a prohibition was placed upon unlicensed departure from the realm by the common subjects of the King. 5 Rich. II, c. 2, §§ 6, 7. In 1607 that prohibition was repealed, 4 James I, c. 1, so that ostensibly freedom of travel was restored, except to persons covered by special statutes.82 It is undeniable, however, that the Crown continued to exercise its prerogative to confine subjects to the realm, at least until about one hundred years before our Revolution.83
The manner in which British kings employed ne exeat was in some ways strikingly similar to our State Department’s present policies and practices. The writ first used “to hinder the clergy from going to Rome * * *, was afterward extended to laymen machinating and concerting measures against the state * * 84 At one time the class confined to the realm included “all archers and artificers, lest they should instruct foreigners to rival us in their several trades and manufactures.”85 Bacon says the writs were issuable “in respect of attempts prejudicial to the King and State: (in which case the Lord Chancellor will grant them upon prayer of any of the principal Secretaries, without cause, or upon such in~ formation as his Lordship shall think of weight) * * *.86
The power to confine subjects to the realm, though it had fallen into disuse,87 *593was still part of the king’s prerogative when we became an independent nation. The draftsmen of our Constitution were familiar with it through Blackstone, “that handbook of the American revolutionary.” 88
Blackstone divided the prerogatives of the Crown into two general categories: those relating to “intercourse with foreign nations”; and those relating to “domestic government and civil polity.” 1 Commentaries (Wendell’s ed. 1854) 252. It is the first branch of the royal prerogative to which Curtiss-Wright refers and upon which the Secretary here relies.
“With regard to foreign concerns,” says Blackstone, “the king is the delegate or representative of his people. * * * In the king, therefore, as in a center, all the rays of his people are united * * *.”89 Ibid. The king’s foreign affairs prerogative included the following components: (1) “the sole power of sending embassadors to foreign states, and receiving embassadors at home,” id. at 252-56; (2) making “treaties, leagues and alliances with foreign states and princes,” id. at 256; (3) “making war and peace,” id. at 256-57; (4) issuing “letters of marque and reprisal,” id. at 257-59; and (5) granting “safe conducts” or “passports” to aliens coming to the realm, id. at 259-60.90
The foreign affairs prerogative did not include the power to confine subjects to the realm. This was part of the domestic prerogative having to do with military affairs. Id. at 265. Blackstone says, id. at 262:
“The king is considered * * * as the generalissimo, or the first in the military command, within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community; and the principal use of government is to direct that *594united strength in the best and most effectual manner, to answer the end proposed. Monarchial government is allowed to be the fittest of any for this purpose; it follows, therefore, from the very end of its institution, that in a monarchy the military power must be trusted in the hands of the prince.”
And, “because that every man ought of right to defend the king and his realm, therefore the king, at his pleasure, may command him by his writ that he go not beyond the seas, or out of the realm, without license * * Id. at 265.
Since the king’s ne exeat power was part of his domestic military prerogative, rather than his foreign affairs prerogative, Curtiss-Wright lends no support to a theory that the power devolved upon our President.
It is plain that our Constitution, with respect to things military, conveyed to Congress most of the powers which were the king’s prerogative,91 leaving the President only the command function. The President’s military power, said Hamilton, “would amount to nothing more than the supreme command and direction of the military and naval forces, a first General and admiral of the Confederacy ; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies; all of which, by the Constitution under consideration, would appertain to the legislature.” The Federalist, No. 69 (Ford ed. 1898), p. 460.92 Since the American citizen does not owe the President such a duty of defense as the British subject owes his monarch, there is no basis for implying a grant to the President of the ne exeat power which might be necessary to enforce such a duty. We owe our duties to the nation, not to its chief executive.93
The notion that the President possesses inherent military power to deal with internal affairs involving private rights was disposed of in Youngstown Sheet & Tube Co. v. Sawyer, 1952, 343 U.S. 579, 72 S.Ct. 863. The Court ruled that it could not “with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production.” Id. 343 U.S. at page 587, 72 S.Ct. at page 867. Mr. Justice Douglas concurring, declared that “our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs.” Id. 343 U.S. at page 632, 72 S.Ct. at page 888, Mr. Justice Jackson added: “That military powers of the Commander in Chief were not to supersede representa*595tive government of internal affairs seems obvious from the Constitution and from elementary American history. * * * [The President’s] command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative Congress.” Id. 343 at pages 644, 645-666, 72 S.Ct. at pages 874, 875-885.94
At the time of Youngstown our Armed Forces were engaged in active combat in Korea. The record before the Court contained a number of affidavits by high Government officials, typical of which was that of the Secretary of Defense, which stated:
“ * * * any curtailment in the production of steel even for a short period of time will have serious effects on the programs of the Department of Defense which are essential to national security. A work stoppage in the steel industry will result immediately in serious curtailment of production of essential weapons and munitions of all kinds; if permitted to continue it would weaken the defense effort in all critical areas and would imperil the safety of our fighting men and that of the nation.”
Chief Justice Vinson, dissenting, thought “the uncontroverted affidavits in this record amply support the [President’s] finding that ‘a work stoppage would immediately jeopardize and imperil our national defense.’ ” Id. 343 U.S. at page 679, 72 S.Ct. at page 935. He also cited our numerous international undertakings — United Nations, Korea, Truman Plan, Marshall Plan, North Atlantic Treaty Organization and Mutual Security — all of which might be imperilled if the President’s seizure were not upheld. Id. 343 U.S. at pages 668-672, 72 S.Ct. 929-931. He found support for the seizure not only in the President’s military power and in his foreign relations power, id. 343 U.S. at pages 679, 681, 72 S.Ct. 934, 935, but also in the fact that the emergency required emergency action. Id. 343 U.S. at pages 668, 708-710, 72 S.Ct. 948-949. The Court, however, repudiated these views. It held that the seizure of steel mills involved in labor strife was within Congress’ “exclusive constitutional authority * * * in both good and bad times.” Id. 343 U.S. at pages 588-589, 72 S.Ct. 867.
The military power has in the past been argued to be broad enough to subject to court-martial civilians who obstruct the successful prosecution of hostilities.95 But as Professor Edmund M. Morgan pointed out: “Every act of treason would, by this reasoning, be punishable by court-martial, and the third section of article III of the constitution would have no field of operation.”96 When, during World War I, legislation was offered to subject all spies to court-martial, on the theory that the whole of the United States was a war zone, President Wilson said: “I think that it is not only unconstitutional, but that in character it would put us upon the level of the very people we are fighting and and affecting to despise.” 97
*596IV.
Conclusion
My conclusions are that (1) the President has not delegated to the Secretary of State the power to decide which Americans may travel and which may not; (2) neither of the two statutes relied on by the Secretary as a source of such power — 22 U.S.C.A. § 211a and 8 U.S.C.A. § 1185 — grants the power, in terms, either to the President or to the Secretary; (3) a construction of either or both of the statutes as granting the power would conflict with other expressions of congressional policy and would raise constitutional doubts of the utmost gravity, especially to the extent that eligibility is made to depend upon matters of political belief and association; (4) since the power was not conferred by statute, the President does not possess it, for it is not one of the powers inherent in his office.
The broad power to curtail the movements of citizens of the United States, to the extent that our Government possesses it, is vested in Congress, not in the President. Travel is being controlled today for purposes of internal security. To call it a matter of foreign relations is mere pretense. Whether our internal security requires the drastic measure of restricting travel and, if so, to what extent and by what criteria and procedures is for Congress to decide. If and when Congress acts, there will presumably be hearings, reports and debates which may serve to limit what Congress elects to do and may help to interpret what it does. The constitutionality of any such measure will, of course, depend on its provisions and the circumstances in which it is enacted.
The question before us is whether the Secretary of State has power to establish such substantive criteria for travel as are here involved. We need not decide and I do not say that there are no circumstances under which the Secretary may restrain a citizen’s travel. Whether he may deny a passport to prevent a flight from justice98 or in aid of the enforcement of some specific law, e. g., the Universal Military Training and Service Act,99 are questions that may arise in other cases. In any event, the exercise of such powers would be a far cry from the Secretary’s present undertaking.
. See 3 Hackworth, Digest of International Law § 268 (1942).
. Shachtman v. Dulles, 1955, 96 U.S.App.D.C. 287, 289-290, 225 F.2d 938, 940-941.
. Actually the first requirement of a passport for travel was during World War I. Act of May 22, 1918, 40 Stat. 559, 22 U.S.C.A. §§ 223-226b, Proclamation No. 1473, Aug. 8, 1918, 40 Stat. 1829. These controls expired March 3, 1921. Pub.Res. No. 64, 41 Stat. 1359. By Act of June 21, 1941, 55 Stat. 252, 22 U.S.C.A. § 223, Congress amended the 1918 Act to apply during a proclaimed emergency and, on November 14, 1941, the President issued Proclamation No. 2523, 55 Stat. 1696, U.S.Code Cong.Service 1941, p. 883, restoring travel controls which have remained in effect since then. The 1941 statute was replaced by § 215 of the Immigration and Nationality Act of 1952, 66 Stat. 190, 8 U.S.C.A. § 1185, and on January 17, 1953, the revised statutory authority was invoked by Proclamation No. 3004, 67 Stat. 031, U.S. Code Cong. and Adm.News 1953, p. 915.
In addition to being legally required as an exit permit, a passport has become a practical necessity because foreign countries have increasingly been requiring it as a condition to entry. See Shachtman v. Dulles, 96 U.S.App.D.C. at page 290, 225 F.2d at page 941; Bauer v. Acheson, D.C., 1952, 106 F.Supp. 445, 451; Comment, 61 Yale L.J., infra note 28, at pages 171-172.
. See, for example, Bauer v. Acheson, supra note 3; Dulles v. Nathan, 1955, 96 U.S.App.D.C. 190, 225 F.2d 29; Shaehtman v. Dulles, supra note 2; Boudin v. Dulles, 1956, 98 U.S.App.D.C. 305, 235 F.2d 532; Robeson v. Dulles, 1956, 98 U.S.App.D.C. 313, 235 F.2d 810, certiorari denied, 1956, 352 U.S. 895, 77 S.Ct. 131, 1 L.Ed.2d 86; Dayton v. Dulles, 1956, 99 U.S.App.D.C. 47, 237 F.2d 43.
. 17 Fed.Reg. 8013, Sept. 4, 1952, 22 C.F.R. §§ 51.135-51.143 (1957 Supp.).
. Section 6 of the Internal Security Act of 1950, 64 Stat. 993, 50 U.S.C.A. § 785, which makes it a crime for a “member of [a Communist] organization” to apply for or use a passport, is inoperative until such an organization has registered or been finally ordered to do so. Neither of these events has occurred. Communist Party v. Subversive Activities Control Board, 1956, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003, reversing, 1954, 96 U.S.App.D.C. 66, 223 F.2d 531.
. The Act of May 30, 1866, 14 Stat. 54, disqualified noncitizens. By Act of June 14, 1902, 32 Stat. 386, the law was amended to disqualify persons not owing allegiance to the United States, “whether citizens or not.” The amendment was designed to cover citizens of Puerto Rico, Hawaii, and the Philippines. 35 Cong. Rec. 5697-99, 6588-89, 57th Cong., 1st Sess. (1902). The statute is now codified as 22 U.S.C.A. § 212. For convenience, the class of eligibles will be referred to herein as “citizens.”
. 22 C.F.R. p. 98 (1957 Supp.); 17 Fed.Reg. 8013.
. See also the Secretary’s brief in Boudin v. Dulles, supra note 4, at p. 16.
. Supra note 3.
. 3 Fed.Reg. 799, 22 C.F.R. §§ 51.1-51.77 (1949).
. 22 C.F.R. §§ 53.101-51.134 (1949); and see source note at p. 103. “A study of the executive order and the departmental order indicates that the chief element in the discretion exercised by the Secretary of State concerned the type of proof required to establish citizenship or allegiance.” Note, 41 Geo.L.J., infra note 28, at 76.
. See Department of State, The American Passport, ch. IV (1898); Exec.Order No. 654, June 13, 1907; Exec.Order No. 4359-A, Dec. 19, 1925; Exec.Order No. 4382-A, Feb. 12, 1926; Exec.Order No. 4488, Aug. 3, 1926; Exec.Order No. 5860, June 22, 1932; Exec.Order No. 6650, March 23, 1934.
. Supra note 3.
. The regulations involved in this case, which were also in existence when the proclamation was issued, were not referred to directly or indirectly.
. 11 Stat. 60; reenacted in substantially the same form by the Act of July 3, 1926, c. 772, § 1, 44 Stat. 887. The language of the original act was “shall be authorized to grant” rather than “may grant,” but the effect is the same.
. Comment, 23 U.Chi.L.Rev., infra note 28, at 272 n. 25; Doman, A Comparative Analysis: Do Citizens Have the Right to Travel, 43 A.B.A.J. 307, 308 (1957).
. The original 1856 Act, 11 Stat. 60, combined the present § 211a with the present § 212 which disqualifies non-citizens.
. Supra note 13.
. Supra note 3.
. This act, though no longer included in the United States Code, has not been repealed and is still in effect. Savorgnan v. United States, 1950, 338 U.S. 491, 498-499, 70 S.Ct. 292.
. See also op. cit. supra note 1, p. 163.
. 8 U.S.C.A. §§ 1481 and 1483; Savorgnan v. United States, 338 U.S. at page 503, 70 S.Ct. at page 298.
. Supra note 6.
. Ibid.
. In the last session of Congress, legislation was introduced by Representative Walter, which would have amended the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. to provide for a passport review procedure and would have denied passports to persons under Communist discipline in much the fashion now employed by the State Department. The bill died in committee. H.R. 9991, 102 Cong.Rec. 4266, 84th Cong., 2d Sess., March 15, 1956.
. See Note, 41 Geo.L.J., infra note 28, at page 89.
. Comment, The Passport Puzzle, 23 U. Chi.L.Rev. 260 (1956); Note, Passports and Freedom of Travel: The Conflict of a Right and a Privilege, 41 Geo.L.J. 63, 88 (1952); Note, “Passport Denied”: State Department Practice and Due Process, 3 Stan.L.Rev. 312 (1951); Parker, The Right to Go Abroad: To Have and to Hold a Passport, 40 Va.L.Rev. 853, 870 (1954); Passport Refusals for Political Reasons: Constitutional Issues and Judicial Review, 61 Tale L.J. 171 (1952).
. 96 U.S.App.D.C. at page 290, 225 F.2d at page 941. See also Williams v. Fears, 1900, 179 U.S. 270, 274, 21 S.Ct. 128, 130, 45 L.Ed. 186, referring to “freedom of egress from the state.”
. Dayton v. Dulles, supra note 4; Boudin v. Dulles, supra note 4; Bauer v. Acheson, supra note 3; see also Dulles v. Nathan, supra note 4, remanding Nathan v. Dulles, D.C.1955, 129 F.Supp. 951, for vacation of judgment and dismissal of complaint on ground of mootness.
. Shachtman v. Dulles, supra note 2; see Kraus v. Dulles, 1956, 98 U.S.App.D.C. 343, 235 F.2d 840.
. In saying in the Communist Party case “that the Government may validly decline” a passport to a Communist, this court was referring to the passport in its aspect as a documentary assurance of “the protection and good offices of American diplomatic and consular officers abroad,” 1954, 96 U.S.App.D.C. 66, 90, 223 F.2d 531, 555, and not as an exit permit indispensable to travel. As for the latter aspect of a passport, i. e., whether a restriction upon liberty to travel is constitutional, the court said, “ * * * we need not, and do not, enter upon consideration of that question * * *.” 96 U.S.App.D.C. at page 91, 223 F.2d at page 556. Later in Shachtman, the court did consider that question and concluded, as we have already seen, that there is a constitutionally protected right, supra note 29; but how much protection springs from the First Amendment has not been determined.
. Mr. Justice Cardozo dissenting in Panama Refining Co. v. Ryan, 1935, 293 U.S. 388, 440, 55 S.Ct. 241, 256, 79 L.Ed. 446. The Secretary argues that standardless delegation is not invalid in a field where the Executive possesses inherent power, citing United States v. Curtiss-Wright Export Corp., 1936, 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255. As I shall show, however, the delegation problem cannot thus be avoided, for the authority here claimed is not encompassed within the President’s inherent power in the field of foreign relations.
. The majority finds “nothing new or novel about requiring an applicant for a permit or a license to supply pertinent information under oath.” [248 F.2d 574] But the analogy sought to be established founders upon the hard fact that the passport applicant does not seek a permit or a license — he seeks to *585implement a constitutionally protected right. The requirement of the affidavit is also sought to be defended by analogy to ordinary pleading rules. But this analogy also collapses. Pleadings may be in the alternative; they may be inconsistent or hypothetical; they are not under oath. A defendant is not required to submit to a test oath as a qualification of his right to receive justice.
. 347 U.S. at page 530, 74 S.Ct. at page 742.
. See discussion at note 90 infra and related text.
. Thomas v. Collins, 1945, 323 U.S. 516, 532, 65 S.Ct. 315, 323, 89 L.Ed. 430.
. Dennis v. United States, 1951, 341 U.S. 494, 510, 71 S.Ct. 857, 95 L.Ed. 1137, adopting the statement of Chief Judge Hand below, United States v. Dennis, 2 Cir., 1950, 183 F.2d 201, 212.
. See also the concurring opinion of Mr. Justice Jackson.
. That some unions have remained powerful and effective without the privileges of the Labor Relations Act is common knowledge.
. One of the individuals who has sought in vain for many years to go abroad was recently reported to have sent a “cordial message of greetings” to the Soviet Union which was published in the Communist Party newspaper Pravda, and broadcast by the Moscow radio. N.Y. Times, Jan. 2, 1957, p. 16, col. 6. “Spies and traitors do not usually travel abroad. Rather, they remain inconspicuously at home, as recent unfortunate cases have amply demonstrated.” Parker, op. cit. supra note 28 at 873.
. Wyzanski, Freedom to Travel, The Atlantic Monthly, Oct. 1952, 66, 68.
. Ibid.
. See also Communist Party v. Subversive Activities Control Board, supra note 32.
. “Limitations on issuance of passports to certain other persons. In order to promote and safeguard the interests of the United States, passport facilities, except for direct and immediate return to the United States, will be refused to a person when it appears to the satisfaction of the Secretary of State that the person’s activities abroad would: (a) violate the laws of the United States; (b) be prejudicial to the orderly conduct of foreign relations; or (c) otherwise be prejudicial to the interests of the United States.” 22 C.F.R. § 51.136 (Supp. 1957).
. 18 U.S.C. §§ 371, 791-97, 2151-56, 2381-90.
. 50 U.S.C.A. § 783.
. Id., § 843.
. 18 U.S.C. § 951.
. Id., § 953.
. It has been observed that, since the common law attributes to personal liberty, according to Blackstone, “the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclinations may direct,” “the distinction between restriction to a jail, to a city, to a state, or to a nation is merely one of degree.” Comment, 61 Yale L.J. supra note 28, at 190; see also Doman, op. cit. supra note 17 at 310.
Constitutional safeguards are “especially necessary where the occasion of detention is fear of future misconduct, rather than crimes committed.” Mr. Justice Jackson, dissenting in Shaughnessy v. U. S. ex rel. Mezei, 1953, 345 U.S. 206, 225, 73 S.Ct. 625, 97 L.Ed. 956. In other legal systems, as Mr. Justice Jackson points out, other considerations may govern. He cites the testimony of Hermann Goring at the Nuremburg trials:
“ * * * those who had committed some act of treason against the new state, or those who might be proved to have committed such an act, were naturally turned over to the courts. The others, however, of whom one might expect such acts, but who had not yet committed them, were taken into protective custody, and these were the people who were taken to concentration camps. * * * Likewise, if for political reasons * * * someone was taken into *588protective custody, that is, purely for reasons of state, this could not be reviewed or stopped by any court.” Id. 345 U.S. at pages 225-226, n. 8, 73 S.Ct. at page 636.
. Id., § 1073.
. The Emergency Detention Act of 1950 i(Title II of the Internal Security Act), ;to deal with “fifth column” problems, authorizes the President, in time of invasion, declared state of war or insurrection in aid of a foreign enemy, to proclaim an “Internal Security Emergency” and to apprehend and detain persons as to whom there is reasonable ground to believe that they “probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage.” 50 U.S.C.A. §§ 812, 813, 64 Stat. 1021 (1950). The original bill, S. 4130, 81st Cong., 2d Sess. (1950), had contained provisions authorizing detention during such “cold war” emergencies as an “imminent invasion” or a eongressionally declared emergency, but these provisions were eliminated because of doubtful constitutionality. Note, The Internal Security Act of 1950, 51 Col.L.Rev. 606, 651 (1951).
. 96 U.S.App.D.C. at page 289, 225 F.2d at page 940.
. 96 U.S.App.D.C. at page 290, 225 F.2d at page 941.
. Mr. Justice Clark concurring in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at page 661 n. 3, 72 S.Ct. at page 883. See the authorities collected in Z & F Assets Realization Corp. v. Hull, 1940, 72 App.D.C. 234, 114 F.2d 464.
. 48 Stat. 811 (1934).
. United States v. Palmer, 1818, 3 Wheat. 610, 633-634, 4 L.Ed. 471; Jones v. United States, 1890, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691; Oetjen v. Central Leather Co., 1918, 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726; United States v. Belmont, 1937, 301 U.S. 324, 330, 57 S.Ct. 758, 81 L.Ed. 1134; United States v. Pink, 1942, 315 U.S. 203, 229, 62 S.Ct. 552, 86 L.Ed. 796; Latvian State Cargo & Passenger S.S. Co. v. McGrath, 88 U.S. App.D.C. 226, 188 F.2d 1000, certiorari denied, 1951, 342 U.S. 816, 72 S.Ct. 30, 96 L.Ed. 617.
. Ware v. Hylton, 1796, 3 Dall. 199, 260, 1 L.Ed. 568; Doe ex dem. Clark v. Braden, 1853, 16 How. 635, 657, 14 L.Ed. 1090; Terlinden v. Ames, 1902, 184 U.S. 270, 22 S.Ct. 484, 46 L.Ed. 534; Ivancevic v. Artukovic, 9 Cir., 1954, 211 F.2d 565, 573.
. Foster v. Neilson, 1829, 2 Pet. 253, 307-309, 7 L.Ed. 415; Williams v. Suffolk Ins. Co., 1839, 13 Pet. 415, 10 L.Ed. 226; In re Cooper, 1892, 143 U.S. 472, 12 S.Ct. 453, 36 L.Ed. 232; The Kodiak, D.C.Alaska 1892, 53 F. 126.
. Wilson v. Shaw, 1907, 204 U.S. 24, 27 S.Ct. 233, 51 L.Ed. 351; Mr. Justice Frankfurter, dissenting in United States v. California, 1947, 332 U.S. 19, 45, 67 S.Ct. 1658, 91 L.Ed. 1889.
. United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317.
. Carlson v. Landon, 1952, 342 U.S. 524, 534, 72 S.Ct. 525, 96 L.Ed. 547; Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 587-590, 72 S.Ct. 512, 96 L.Ed. 586.
. United States v. Von Clemm, 2 Cir., 1943, 136 F.2d 968, 970.
. Mr. Justice Douglas, concurring in Koki Hirota v. McArthur, 1949, 338 U.S. 197, 208, 69 S.Ct. 1238, 93 L.Ed. 1902.
. Chicago & Southern Air Lines v. Waterman Steamship Corp., 1948, 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568.
. Z & IP Assets Realization Corp. v. Hull, 1940, 72 App.D.C. 234, 114 F.2d 464, 466, affirmed, 1941, 311 U.S. 740, 61 S.Ct. 351, 85 L.Ed. 288.
. Comment, 61 Yale L.J. at 187. The Chicago & Southern Air Lines case, supra note 66, is not an exception. The Court there held that the President’s selection of one applicant over another for an international air route was not to be interfered with, because “both as Commander-in-Chief and as the Nation’s organ for foreign affairs, [he] has available intelligence services whose reports are not and ought not to be published to the world.” 333 U.S. at page 111, 68 S.Ct. at page 436. “The Court evidently was assuming that any secret information the President may have relied upon was in the nature of legislative facts and not adjudicative facts — that the information pertained to international relations and not to qualifications of the particular applicants. * * * Thus an applicant for a license is entitled to a trial type of hearing on issues of fact concerning his qualifications but not necessarily on issues of fact concerning need for the service or conditions in the territory to be served.” Davis, The Requirement of a Trial-Type Hearing, 70 Harv.L.Rev. 193 at pages 264, 275 (1956).
. That the executive power with respect to passports is not of this conclusive character was settled in Perkins v. Elg, 1939, 307 U.S. 325, 349-350, 59 S.Ct. 884, 83 L.Ed. 1320.
. See also the Chicago & Southern Air Lines case, supra note 66, 333 U.S. at page 111, 68 S.Ct. 431.
. “The validity of restrictions on the freedom of movement of particular individuals, both substantively and procedurally, is precisely the sort of matter that is the peculiar domain of the courts.” Comment, 61 Yale L.J. at page 187. The Secretary’s position that “the issuance and denial of passports is within the field of conducting foreign policy” has been described by one commentator as “[a] strange, and to this writer’s knowledge, unique position among the countries with democratic and constitutional background.” Doman, op. cit. supra note 17, at page 309.
. Madison wrote to Jefferson in 1798:
“The management of foreign relations appears to be the most susceptible of abuse of all the trusts committed to a Government, because they can be concealed or disclosed, or disclosed in such parts and at such times as will best suit particular views; and because the body of the people are less capable of judging and are more under the influence of prejudices, on that branch of their affairs, than of any other. Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.” Padover, The Complete Madison (1953) 257-58.
Mr. Justice Jackson, concurring in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at page 642, 72 S.Ct. at page 873, declared:
“ * * * no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is *591unknown, can vastly enlarge Ms mastery over the internal affairs of the country by Ms own commitment of the Nation’s armed forces to some foreign venture.”
. Patterson, In re the United States v. The Curtiss-Wright Corporation, 22 Texas L.Rev. 286 (1944).
. Goebel, Constitutional History and Constitutional Law, 38 Col.L.Rev. 555, 571-72 (1938). In token that Ms fears are not fanciful, Professor Goebel cites Den. ex dem. Murray v. Hoboken Land & Improvement Co., 1855, 18 How. 272, 276-277, 15 L.Ed. 372, where Mr. Justice Curtis, in upholding the right of the Solicitor of the Treasury Department to proceed by distraint, without judicial process, against the property of a defalcating customs collector, reasoned that the taking was not without due process of law because at common law the Exchequer could use the writ of extendi facias to seize the “goods of the King’s debtor * * * without requiring any previous inquisition * *
. 1 Willoughby, The Constitution of the United States 92 (2d ed. 1929); see also Leviton, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s Theory, 55 Yale L.J. 467, 493 (1946). See the concurring opinion of Mr. Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at page 641, 72 S.Ct. at page 873, replying to the Government’s argument that the vesting of “The Executive Power” in the President is a grant of all possible executive power: “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their now Executive in his image.” One of the evils denounced in the Declaration may have been the King’s attempt to prevent emigration to the colonies. Note, 41 Geo. L.J., supra note 28, at 70. Even in the earliest colonial period, Charles I, in the exercise of the royal prerogative to confine the subject to the realm, issued a proclamation against taking passage to America, because some who were going were “ ‘idle and refractory persons’ who wished to live out of reach of authority.” 10 Holdsworth, History of English Law 390 (1938).
. Our Foreign Policy, Department of State Publication 8972, General Foreign Policy Series 26, Sept. 1950, p. 4.
. Supra notes 58-67. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at page 587, 72 S.Ct. at page 867, the Court said, dealing with the analogous question of the extent of the President’s military power: “Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities,” See also text at notes 95-97, infra.
. A specific royal prerogative, in its devolution upon our national government, may be divided between tbe executive and legislative branches. See, e. g., 1863, 10 Ops. Att’y Gen. 452.
. See Note, 41 Geo.L.J. at 64-70.
. From the struggles of Henry II with Thomas & Becket emerged, in 1164, the fourth article of the Constitutions of Clarendon prohibiting ecclesiastics from . leaving the realm without the king’s permission.
. John’s struggle with the barons culminated, in 1215, in Magna Carta which provided in c. 42:
“It shall be lawful in future for anyone (excepting always those imprisoned or outlawed in accordance with the law of the kingdom, and natives of any country at war with us, and merchants, who shall be treated as [otherwise] provided) to leave our kingdom and to return, safe and secure by land and water, except for a short period in time of war, on grounds of public policy — reserving always the allegiance- due to us.”
This provision did not survive John. It was omitted from the confirmation of the Charter in 1217 and the definitive proclamation by Henry III in 1225 which is the Charter’s present statutory form. Supra note 79 at 67-68; Goebel, op. cit. supra note 74, at 573-74 n. 51.
. Largely affecting children sought to be sent abroad for Catholic education. Supra note 79, at 69.
. Goebel, op. cit. supra note 74, at 573-74 n. 51; 10 Holdsworth, op. cit. supra note 75, at 391-92.
. 1 Blackstone, Commentaries (Wendell’s ed. 1854) 266 n. 22.
. Id. at 265-66.
. Ordinances, No. 89, quoted in Beames, Ne Exeat Regno (1st Amer. ed., 1821) 17. In form, the writ commanded the subject “that he go not beyond the seas or out of the realm without a license” upon the stated ground that “we are given to understand that you design to go privately into foreign parts and intend to prosecute there many things prejudicial to us * * Provision was made whereby the subject could apply to Chancery for a license. Parker, op. cit. supra note 28, at 867.
. The writ ne exeat has continued to be employed only as a private equitable remedy to prevent flight of creditors. Supra note 85; Parker, op. cit. supra note 28 at 867-68. In its aspect as a private equitable remedy, it was imported into our law. 1 Stat. 334 (1793) ; Judicial Code § 261, 36 Stat. 1162 (1911), 28 U.S.C. § 376 (1940); now covered by Rule 64, Fed.R.Civ.P., *59328 U.S.C., see Notes of Advisory Committee. The royal prerogative still exists in England, but whether it may be exercised in time of peace is doubtful. Note, 41 Geo.L.J. at 70.
. Rutland, The Birth of the Bill of Rights 11 (1955). “Blaekstone’s Commentaries are accepted as the most satisfactory exposition of the common law of England. At the time of the Federal Constitution it had been published about twenty years, and it has been said that more copies of the work had been sold in this country than in England, so that undoubtedly the framers of the Constitution were familiar with it.” Schick v. United States, 1904, 195 U.S. 65, 69, 24 S.Ct. 826, 827, 49 L.Ed. 99. Professor Crosskey refers to the Commentaries as “that great ‘best-seller’ of the eighteenth century” and points out that some of the members of the Constitutional Convention were on the subscription list of the original American edition in 1772. Politics and the Constitution, Yol. 1, p. 411, and Vol. 2, p. 1326, n. 3 (1953).
. Cf. John Marshall, in an address to the House of Representatives in 1800: “The President is the solo organ of the nation in its external relations, and its sole representative with foreign nations.” 10 Annals of Congress, 6th Cong., 1st Sess., col. 613 (1800).
. The “passports” referred to in this part of the prerogative are merely “safe conducts” which were issued to visiting strangers “under the king’s sign-manual,” rather than by one of “his embassadors abroad.” Id at 259. This part of the foreign affairs prerogative has been carried over to our Government. See United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317: “The exclusion of aliens is a fundamental act of sovereignty * * * [which] stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” See also Carlson v. Landon, 1952, 342 U.S. 524, 534, 72 S.Ct. 525, 96 L.Ed. 547; Harisiades v. Shaughnessy, 3952, 342 U.S. 580, 587-589, 72 S.Ct. 512, 96 L.Ed. 586; and Galvan v. Press, 1954, 347 U.S. 522, 530, 74 S.Ct. 737, 98 L.Ed. 911. The majority’s reliance upon Galvan to support a power to control the movements of citizens is thus misplaced. See text at note 36 supra.
So far as the rest of the royal prerogative over foreign affairs is concerned, the power to make war and to issue letters of marque and reprisal were confined by our Constitution to the legislative branch, and the sending of ambassadors to and making of treaties with other nations were given to the President, but with a role preserved for the Senate.
. E. g., “to raise and support Armies,” “to provide and maintain a Navy,” “to make Rules for the Government and Regulation of the land and naval Forces,” the various militia powers, and the authority to legislate with respect to places “for the Erection of Forts, Magazines, Arsenals, Dock-Yards and other needful Buildings.” Constitution, Art. I, § 8.
. Professor Crosskey points out that St. George Tucker, a Jeffersonian, in his 1803 edition of Blackstone, noted that “the student c[ould] not fail to have remarked how many of the most important prerogatives of the British Crown [had been] transferred from the executive OMthority, in the United States, to the supreme national council in Congress." Op. cit. supra note 88 at 415. Orosskey concludes as to the military prerogative: “So, in this whole field in which the powers of the King were so very great- — the field of authority from which, if , from any, the Convention may have feared a future American monarchy might conceivably arise — the ‘supremacy’ of Congress was most carefully and amply provided: apart from the bare ‘command’ in actual action and administration, all the foregoing authorities of the English King, as ‘generalissimo,’ were specifically transferred to Congress or subjected, in the plainest terms, to Senatorial or Congressional control.” Id. at 427.
. A cognate of the writ ne exeat is the writ available to the king to recall a subject to the realm from abroad. Supra note 84 at 266. To the extent that this prerogative power passed to our Government, it is lodged not in the President but in Congress. See Blackmer v. United States, 1932, 284 U.S. 421, 437-438, 52 S.Ct. 252, 76 L.Ed. 375.
. The executive absolutism implicit in the royal prerogative has its counterpart in modern systems of government which, though formally representative, differ from ours in basic philosophy. Thus, under the Venezuelan theory of “cesarismo democrático,” the president is “democracy personified, the nation made man” and his “influence and power * * extend to all levels of government. * * ” Lott, Executive Power in Venezuela, 50 The American Political Science Review 422, 425, 440 (1956).
. Winthrop, Military Law and Precedents (2d ed. 1920) 103.
. Morgan, Court Martial Jurisdiction Over Non-Military Persons Under the Articles of War, 4 Minn.L.Rev. 79, 106 (1920).
. Rankin, When the Civil Law Fails (1939) 138-39.
. Cf. 18 U.S.C. § 1073.
. Act of June 24, 1948, 62 Stat. 604, 50 U.S.C.A.Appendix, § 451 et seq.