dissenting.
I respectfully dissent.
*979Judge Fernandez’s opinion would hold that “rational basis review is the proper standard”1 for testing restrictions on a person’s right to leave the United States. The right to leave one’s country is too important to be subject to abridgment on so permissive a standard. The practical effect of consigning the right to travel to this lowly category of constitutional protection is to grant Congress plenary power to restrict it. Judge McKeown’s opinion would hold that “intermediate scrutiny should be the benchmark.”2 In my view, we are not at liberty to take either approach.
The Supreme Court laid down the principles that govern this case before it adopted the three pigeonholes now fashionable: rational basis, intermediate, and strict scrutiny. The holdings in the principal right to travel cases use the approach that dominated jurisprudence in the 1960s, when pigeonholes and drawing inferences based on the pigeonholes was considered a relic of earlier times. We must take these cases as they are. In this case, unlike those in which the Supreme Court has upheld restrictions on travel, the government has not offered a foreign policy or national security justification for the restriction, the government has not narrowly tailored the restriction to its purpose, and the apparent purpose of the restriction is to penalize past misconduct rather than to restrict travel as such. Thus the travel ban in this case is unconstitutional under controlling Supreme Court precedent. That Court can revise its approach if it so decides, but we can’t.3
The right to leave is among the most important of all human rights. In the Crito, Socrates explains his decision to stay in prison and accept the death penalty — rather than accept his friends’ arrangement of an escape — by the social contract formed when, though free to leave Athens with his property, he elected to stay and subject himself to its laws:
[W]e further proclaim to any Athenian by the liberty which we allow him, that if he does not like us when he has become of age and has seen the ways of the city, and made our acquaintance, he may go where he pleases and take his goods with him.... But he who has experience of the manner in which we order justice and administer the state, and still remains, has entered into an implied contract that he will do as we command him.4
Magna Carta established that subjects had a right to leave the kingdom and return.5 The exceptions to the right to travel abroad in Magna Carta were for “those imprisoned or out-lawed” and for “a short period in time of war,”6 a public policy reason relating to national security.
*980The Supreme Court held in Kent v. Dulles7 that the “right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment.”8 The Court held that curtailments of that right must be narrowly construed,9 because the right to travel is so “deeply engrained” in Anglo-American constitutional history.10 Judge McKeown’s opinion dismisses Kent, noting that it ultimately held only that the State Department’s ban on passports for Communists exceeded its statutory authority,11 not that the ban was unconstitutional. But this ignores why the Court resolved the case on statutory grounds, which was to avoid deciding a serious constitutional question: “Where activities or enjoyment, natural and often necessary to the well-being of an American citizen, such as travel, are involved, we will construe narrowly all delegated powers that curtail or dilute them.”12 Congress has described the right to emigrate as fun“fundamental” in the Jackson-Vanik Amendment,13 which pressures communist countries to let their people go:
To assure the continued dedication of the United States to fundamental human rights ... products from any nonmarket economy country shall not be eligible to receive nondiseriminatory treatment ... during the period beginning with the date on which the President determines that such country ... denies its citizens the right or opportunity to emigrate.14
In Europe in the 1930s and 1940s, for many citizens emigration or not meant life or death.
Ms. Eunique got caught by part of the “deadbeat dads” law,15 and cannot get a passport, because she has not been paying her ex-husband the $175 per month per child in child support that she agreed to pay when she divorced him. She was then in law school and “had thought that all lawyers earned a lot of money,” but “things have not turned out as I expected.” She has earned negligible net income from her law practice. She says that a Peruvian American friend has invited her to go to Peru to meet relatives who have a law firm there, and has suggested that her trip “could open up opportunities for the law firm to hire me when they need legal work in California.” Ms. Eunique is plainly derelict in her duty to pay child support, and was properly denied a passport, if the statute and regulation16 are constitutional.
The Supreme Court has dealt with three kinds of interference with the right to travel abroad: bans on travel by specific classes of persons;17 bans on travel to specific countries;18 and residency re*981quirements for government benefits that incidentally burden persons who travel abroad.19 The Court has held that incidental burdens on permitted travel need only have a rational basis,20 but has subjected restrictions on travel itself to much greater scrutiny.21 The Court has not formally stated the constitutional test, but its elements are clear. Travel restrictions must be justified by an important or compelling government interest and must be narrowly tailored to that end.22 Travel bans aimed at specific individuals or classes of individuals must be more narrowly tailored than bans aimed at specific countries.23
The statute and regulation in this case24 impose a direct restriction on travel, rather than an incidental burden, and must meet a higher standard of scrutiny than rational basis. They do not restrict travel to a specific country or region for reasons of national security or foreign policy, as in Zemel v. Rusk25 and Regan v. Wald.26 Instead, they restrict travel by a specific class of people from their own country. The Supreme Court has upheld such restrictions when a person’s activities threaten national security or foreign policy, as in Haig v. Agee,27 and has suggested that bans on travel by people “participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States” would also be proper.28 Had Eunique been held in contempt and ordered to stay in the United States and purge it, she might be “trying to escape the toils of the law” by traveling abroad. But the statute and regulation in this case only require that she be a debtor,29 not a fugitive, and so far as the record shows, that is all she is.
We should reverse the district court under Aptheker v. Secretary of State.30 The statute in that case denied passports to members of the Communist Party.31 The Communists lost in district court under rational basis review, but won in the Supreme Court because it applied a more stringent standard of review.32 Aptheker cannot be distinguished on the ground that *982it is a First Amendment case, as the other two opinions would do, because the Court expressly held that its disposition of the case under the Fifth Amendment made it unnecessary to review the First Amendment contentions.33 The Court held that the right to travel abroad is “an important aspect of the citizen’s liberty guaranteed in the Due Process Clause ...34 describing it as one of our “basic freedoms.”35 It therefore applied to the passport restriction the “familiar and basic principle” that “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”36 The “bare fact of organizational membership” in the Communist Party was too “tenuous” in its relationship to national security concerns to justify the breadth of the ban.37 The total ban “indiscriminately” ignored such “plainly relevant” factors as “the individual’s knowledge, activity, commitment, and purposes in and places for travel.”38 Accordingly, the Court held that the statute was “unconstitutional on its face” because it swept “too widely and too indiscriminately across the liberty guaranteed in the Fifth Amendment.” 39
Judge Fernandez’s opinion tries to dilute Aptheker by characterizing it as quaint, from “an early point in the development of Supreme Court jurisprudence in this area.”40 It’s binding. And 1964 is not so long ago as all that. A Court of Appeals is bound by Supreme Court decisions, even if it sees them as undermined by subsequent decisions.41 Aptheker is the law and it controls this case.
The ban on passports for “deadbeat dads” (and “deadbeat moms” as in this case) is less constitutionally defensible than the ban on passports for Communists held unconstitutional in Aptheker. In Ap-theker, there was a genuine national security concern, but the statute swept too broadly, embracing cases where that concern was highly attenuated. Since Magna Carta, national security concerns have justified limiting the right to travel outside the country. For parents in arrears on child support, there is no national security or foreign policy concern.
Zemel v. Rusk does not support the travel restriction in this case, because the restriction on travel to Cuba upheld there was based on the “weightiest considerations of national security.”42 Judge McKeown’s opinion says that Zemel “distinguished Kent because it dealt with passport denial based on political beliefs or associations.” That’s not quite correct. Zemel distinguished Kent because Kent involved denial of a passport based on a “characteristic peculiar to appellant,” but *983Zemel involved “foreign policy considerations affecting all citizens.” Unlike Kent, Zemel did not uphold a prohibition on traveling out of the United States, just one on travel to a particular hostile country.43 The case at bar is more like Kent than Zemel: the statute and regulation prohibit Ms. Eunique from traveling out of the United States based on her debtor status, a “characteristic peculiar” to her, rather than “foreign policy considerations affecting all citizens.”
Nor does Calif ano v. Aznavorian44 support the travel restriction in this case. The law in Aznavorian did not restrict travel at all, It just imposed an incidental burden on travelers by suspending their Supplemental Security Income payments while they freely traveled outside of the United States.45 The Court in Aznavorian explicitly distinguished passport restrictions from the “rational basis” review it gave the suspension of government benefits while abroad, noting that the law at issue “does not limit the availability or validity of passports.”46
Haig v: Agee is another national security case.47 It upheld the application of a regulation narrowly tailored to “cases involving likelihood of ‘serious damage’ to national security or foreign policy ...” to a former CIA agent who betrayed undercover CIA agents working abroad to hostile governments.48 Regan v.Wald is another travel-to-Cuba case, upholding that travel restriction (which allowed Americans freely to travel abroad, just not to that particular hostile country) because of “weighty concerns of foreign policy.”49 Wald, upheld a narrowly tailored travel restriction that supported the government’s important foreign policy and national security interests; 50 it did not recognize a “First Amendment exception” to an until-now non-existent rule of rational basis review for travel restrictions.
Our circuit precedents do not control this case. They sometimes speak of the right to travel as “fundamental,”51 sometimes not,52 and none uphold an across-the-board travel ban for other than foreign policy or national security reasons. Freedom to Travel Campaign v. Newcomb simply upheld a restriction on travel to a single country, Cuba53 — a restriction already upheld by the Supreme Court in Regan v. Wald54 — not on travel outside the United States. Freedom to Travel expressly avoids adopting a rational basis standard of review by saying “the government need only advance a rational, or at most important, reason....”55
The statute and regulations are more plainly overbroad here than in Aptheker. Judge Fernandez’s opinion suggests that “it makes sense to assure that those who do not pay their child support obligations remain within the country.”56 But the *984statute and regulation do not do require people to remain within the country. Someone fleeing the country to avoid collection attempts may flee to Mexico, Canada, and a number of other countries without a passport.57 This passport ban is more reasonably seen, in light of the penalties the states are required to impose for nonpayment of child support— “withhold[ing] or suspending], or ... restricting] the use of driver’s licenses, professional and occupational licenses, and recreational and sporting licenses of individuals owing overdue support”58 — not as a means of facilitating collection, but as a penalty for past nonpayment. After all, taking away a lawyer’s or other licensed professional’s license to practice makes her less able to pay her child support.
The passport ban is also overbroad because, as in Aptheker, it does not take into account individual reasons that might support a passport.59 For example, travel abroad would, in some businesses (importing) and some lines of professional work, be necessary to earning the money with which the parent would be able to pay child support. And it does not allow for considerations that would bear on the risk of a person traveling abroad to evade child support obligations. Were it tailored to avoiding such flight, then posting of security, owning assets fixed in the United States, or having a job or business in the United States could be considered in determining whether to issue a passport, just as they would be in a bail application. Judge McKeown’s opinion suggests that “the procedure for state certification to the federal government of delinquent child support apparently permits waiver of the restriction for business purposes and family emergencies”60 and faults Ms. Eunique for not having “even attempted to avail herself of the regulatory safe harbor.”61 Judge McKeown’s opinion refers to a procedure instituted by the California state agency responsible for child support collections, by which parents in arrears may, based on “extenuating circumstances,” request removal from the delinquency list sent to the federal government-and used to deny passports. This possible remedy is a creature of state law; it’s irrelevant to whether the federal law at issue in this case is narrowly tailored.
If Ms. Eunique were a murderer who had done her time, she could get a passport.62 But a person delinquent in paying child support is punished by denial of a passport. All debtors should pay their debts. Debts for child support have special moral force. But that does not justify tossing away a constitutional liberty so important that it has been a constant of Anglo-American law since Magna Carta, and of civilized thought since Plato. We should reverse.
There is a great deal of conduct that government requires or prohibits. Some is of overwhelming importance: you *985shouldn’t murder, steal, lie under oath. Some is of lesser importance, though still the result of considered policy choices: you should pay your debts, pay your taxes, refrain from speeding, refrain from smoking on airplanes. Violating any of these requirements justifies punishment.
But the right to leave one’s country is a very important guarantor of freedom (and in some countries, of life). That right is too important to let the government take it away as punishment to advance a government policy just because it is important. You can’t get a passport if you’re in arrears on your taxes? If you were ever convicted of drunk driving? If you didn’t obey a summons for jury service? That weighs our liberty too lightly. Yet the other two opinions would evidently allow that.
And in this case, the scheme says, ‘You can’t go to Paris if you haven’t paid your child support, but you can if all you did was commit murder.” The scheme also says, “Even though you can’t go to Paris, it’s OK to go to Mexico or Canada,”63 though enforcement will be just as difficult there as in Paris. Thus the scheme upheld does not provide a carefully tailored means of enforcing important legal objectives, just an unrelated and ineffective burden on an arbitrarily selected subset of people who don’t do what they’re supposed to do. Our liberty matters too much for that.
. Opinion at 974 (Fernandez, Circuit Judge)
. Concurring Opinion at 978 (McKeown, Circuit Judge)
. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) ("We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that '[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.' ") (quoting Rodriguez de Quijos v. Shearson/'American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)).
. Plato, Crito, in Plato: Selections 46 (Raphael Demos, ed., Charles Scribner's Sons 1955).
. Magna Carta, ch. 42, in Samuel E. Thorne et al, The Great Charter 129 (New American Library: Mentor Books, 1966).
. Id.
. 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958).
. Id. at 125, 78 S.Ct. 1113.
. Id. at 129, 78 S.Ct. 1113.
. Id. at 126, 78 S.Ct. 1113.
. Id. at 129, 78 S.Ct. 1113.
. Id., 78 S.Ct. 1113
. 19 U.S.C. § 2432(a) (1999).
. Id. See also 19 U.S.C. § 2439 (1999).
. 42 U.S.C. § 652(k) (1998); 22 C.F.R. § 51.70(a)(8) (2001).
. Id. § 652(k); 22 C.F.R. § 51.70(a)(8).
. See Kent, 357 U.S. at 117-18, 78 S.Ct. 1113 (regulation denying passports to Communists); Aptheker v. Secretary of State, 378 U.S. 500, 501-502, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964) (statute denying passports to Communist Party members); Haig v. Agee, 453 U.S. 280, 281, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (regulation denying passports to persons whose activities abroad endanger national security or the foreign policy).
. Zemel v. Rusk, 381 U.S. 1, 3-4, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965) (regulation invalidating passports for travel to Cuba); Regan v. Wald, 468 U.S. 222, 224, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984) (regulation banning most economic transactions in connection with travel to Cuba).
. Califano v. Aznavorian, 439 U.S. 170, 171-72, 99 S.Ct. 471, 58 L.Ed.2d 435 (1978) (statute denying Supplement Security Income benefits to persons outside of the United States for certain periods of time).
. Aznavorian, 439 U.S. at 177-78, 99 S.Ct. 471.
. See Aptheker, 378 U.S. at 514, 84 S.Ct. 1659; Zemel, 381 U.S. at 14-16, 85 S.Ct. 1271; Agee, 453 U.S. at 306-308, 101 S.Ct. 2766; Wald, 468 U.S. at 240-243, 104 S.Ct. 3026
. See Aptheker, 378 U.S. at 514, 84 S.Ct. 1659 (quoting Cantwell v. Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)).
. Compare Aptheker at 514, 84 S.Ct. 1659 (holding unconstitutional a travel restriction on Communist Party members) and Agee, 453 U.S. at 308, 101 S.Ct. 2766 (upholding a travel restriction on a former CIA agent who traveled abroad exposing CIA agents to hostile governments) to Zemel, 381 U.S. at 16, 85 S.Ct. 1271 (upholding restriction on travel to Cuba) and Wald, 468 U.S. at 242, 104 S.Ct. 3026 (same).
. 42 U.S.C. § 652(k); 22 C.F.R. § 51.70(a)(8).
. 381 U.S. at 16, 85 S.Ct. 1271.
. 468 U.S. at 242, 104 S.Ct. 3026.
. 453 U.S. at 308, 101 S.Ct. 2766.
. Id. at 290, 101 S.Ct. 2766 (1981) (quoting Kent, 357 U.S. at 127, 78 S.Ct. 1113) (internal quotation marks omitted).
. See 42 U.S.C. § 652(k); 22 C.F.R. § 51.70(a)(8).
. 378 U.S. at 516, 84 S.Ct. 1659.
. Id. at 501-502, 84 S.Ct. 1659.
. JtZ. at 516, 84 S.Ct. 1659.
. Id. at 504, n. 4, 84 S.Ct. 1659.
. Id. at 500, 84 S.Ct. 1659 (quoting Kent v. Dulles, 357 U.S. 116, 127, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958)) (internal quotation marks omitted).
. Id. at 514, 84 S.Ct. 1659.
. Id. at 508, 84 S.Ct. 1659.
. Id. at 514, 84 S.Ct. 1659.
. Id., 84 S.Ct. 1659 .
. Id., 84 S.Ct. 1659
. Opinion at 973 (Fernandez, Circuit Judge).
. See Agostini, 521 U.S. at 237, 117 S.Ct. 1997 ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”) (citation and internal quotation marks omitted).
. 381 U.S. at 16, 85 S.Ct. 1271.
. Id. at 3, 85 S.Ct. 1271.
. 439 U.S. 170, 99 S.Ct. 471, 58 L.Ed.2d 435 (1978).
. Id. at 171-72, 99 S.Ct. 471.
. Id. at 177, 99 S.Ct. 471.
. 453 U.S. at 307, 101 S.Ct. 2766.
. Id. at 306-308, 101 S.Ct. 2766.
.468 U.S. at 242, 104 S.Ct. 3026.
. Id. at 242-43, 104 S.Ct. 3026.
. In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1309 (9th Cir.1982).
. Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1439 (9th Cir.1996).
. Id.
. 468 U.S. at 244, 104 S.Ct. 3026.
. 82 F.3d at 1439.
. Plurality Opinion at 975.
.Generally, a citizen may not "depart from or enter” the United States unless she "bears a valid United States passport,” 8 U.S.C. § 1185(b) (1997), 22 C.F.R. § 53.1 (2001), but the President may specify exceptions, 8 U.S.C. § 1155. The main exception is for travel "between the United States and any country, territory, or island adjacent thereto in North, South, or Central America excluding Cuba ...," 22 C.F.R. § 53.2(b) (2001), with "United States” meaning any territory subject to the United States' jurisdiction, 22 C.F.R. § 50.1(a) (2001).
. 42 U.S.C. § 666(a)(16) (1998).
. See 378 U.S. at 510-11, 84 S.Ct. 1659.
. Concurring Opinion at 976 (McKeown, Circuit Judge).
. Id. at 976.
. See 22 C.F.R. §§ 51.70, 51.71 (2001).
. See note 57 supra.