Mar 08 2024

US passports and freedom of international travel

As we mark twenty years since the creation of this website for the Identity Project, perhaps it’s time to assess the state of freedom of movement in the USA and for US citizens.

We’ve been reporting, in more detail than anyone else, on changes in policies and practices that affect our right to travel freely. But sometimes the big picture can get lost in the details. Incremental changes can be more significant, in the long term and in the aggregate, than might be apparent  if we focus on any single step along the way.

Travel is restricted by (1) requirements to have, carry, and show ID to cross international borders or travel by common carrier; (2) restrictions on issuance of passports, driver’s, licenses, and state IDs used or needed for travel; and (3) ID-linked blacklists and controls that allow travel only by government permission and restrict who is given permission to travel.

These mechanisms for control of movement operate differently for international travel than they do for movement within the USA.

Let’s look first at U.S. passports and international travel. (We’ll look at domestic travel within the U.S without ID, or without Federally-approved ID, in later articles.)

Can a US citizen travel internationally without a passport? Do they have a right to a passport — and if not, which US citizens can and can’t get a US passport? What is the legal basis for these restrictions, or what would be the legal basis for challenging them?

Historically, passports were a convenience, not a necessity, for international travel. They still aren’t required for international travel by any international treaty, and they weren’t always required by US law and regulations, for US citizens entering or leaving the US, until 2009.

Earlier court cases upheld denial or revocation of passports at the discretion of the Secretary of State, on the basis that a US citizen didn’t “need” a passport to leave or return to the US and that the US government wasn’t required to facilitate their travels.

Federal regulations promulgated in 2009 changed the rules by explicitly forbidding any US citizen from entering or leaving the US without a valid, current US passport. And with the globalization of passport requirement by other countries, it’s increasingly unlikely that, even if a US citizen could leave the US without a passport, they would be allowed to enter any other country without a passport. A passport is no longer a mere convenience. It’s now, in most cases, both a de jure and a de facto requirement for international travel.

It seems obvious that this legal change eliminated the basis for earlier court decisions upholding State Department discretion in issuing US passports. But so far as we can tell, no court has considered the validity of the post-2009 legal situation in which passports are required for all crossing of US borders by US citizens, especially in light of the US Constitution or US obligations pursuant to international human rights treaties on freedom of movement, the right to leave one’s country, and the right to return.

As it became harder and harder to travel internationally without a passport, Congress has enacted a series of measures seeking to use the “discretionary” power to grant or withhold passports as a tactic to coerce or extort compliance by US citizens, or punish them for noncompliance, with other laws unrelated to citizenship or travel.

First, in 1996, a law was enacted, 42 U.S. Code § 652(k), denying passports to anyone reported to the State Department by the Department of Health and Human Services as having been reported to HHS by a state agency as being more than $2,500 in arrears in child support payments.

Despite the obvious potential for errors in this multi-step “game of telephone” reporting scheme, the law included a special provision, 42 U.S.C § 652(k)(3), designed to frustrate any attempt to challenge passport denials under this law:

The Secretary and the Secretary of State shall not be liable to an individual for any action with respect to a certification by a State agency under this section.

Federal courts have upheld the application of this law in two cases, Weinstein v. Albright, 261 F. 3d 127 (2nd Cir. 2001), and Eunique v. Powell, 281 F.3d 940 (9th Cir. 2002).

Both of those cases, obviously,  came before the categorical ban on entering or leaving the US without a passport came into effect in 2009. Neither of these decisions addressed the right to travel under international law. A footnote to the decision in Eunique v. Powell noted that, “On appeal, Eunique raises the new claim that Congress violated international law when it enacted § 652(k). We do not hear issues raised on appeal for the first time.”

While all of the judges deciding these two cases agreed on the existence of a Constitutional right to travel, they differed on the importance of that right and thus on the standard the government needs to meet to justify restrictions on that right.

Those differences were most clear in the decision in Eunique v. Powell. One member of the three-judge panel thought the government need only show that there is some “rational basis” for restricting the right to travel in furtherance of some legitimate government purpose. A second concurring judge thought the right to travel is a more important right, such that restriction on this right should be subject to “intermediate scrutiny”. And a third dissenting member of the panel wrote that the right to international travel is a fundamental right, such that restrictions on this right should be subject to “strict scrutiny”.

This extreme divergence of opinions is indicative of  the lack of clear precedents on this issue. That leaves each judge who hears one of these cases free to form, and to articulate, their own first impression of how it should be analyzed.

This dissenting opinion by Judge Andrew Kleinfeld is, we think, perhaps the clearest relatively recent judicial statement of the fundamental Constitutional importance of the right to travel.

HHS, which as noted above compiles the child support blacklists provided by state agencies and passes them on the State Department, found that denial of passports was more effective than it expected. That’s evidence, we would argue, that the right to a passport is more important, and deserves a higher level of protection, than the government wants to admit.

According to the HHS Office of Child Support Services (OCSS):

OCSS received authority to initiate the Passport Denial Program as part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Back then, the Passport Denial Program promised to be a revolutionary new enforcement tool to help children and families get their past-due support. Today the program is much more successful than the child support community ever imagined.

Inspired by this debt-collection windfall, Congress next added a section to another unrelated section of the statute book, 26 U.S. Code § 7345,  effective in 2015, to deny a US passport to any US citizen reported to the State Department by the IRS as having been assessed $50,000 or more (increasing each year in step with the cost of living) in unpaid taxes.

That law was challenged, but upheld by the 10th Circuit Court of Appeals in 2021, as we discussed at that time, in the case of Maehr v. Dept. of State.  In 2022, the Supreme Court decided not to review the 10th Circuit’s decision. But the petition for certiorari to the Supreme Court in Maehr v. Dept. of State,  despite not raising any of the potential issues of international law, gives an excellent Constitutional argument for the right to travel.

In 2016, Congress added a slightly different provision to yet another article of the U.S. Code, 22 U.S.C. § 212a, requiring that all passports of “registered sex offenders” be marked for life with a distinctive scarlet-letter-like identifier.  This law purports not to prevent international travel by these stigmatized US citizens, but the obvious intent of the special markings on their passports is to encourage other countries to deny them entry.

The Constitutionality of this law has yet to be tested. One lawsuit was dismissed as premature because the regulations to implement this law hadn’t been finalized yet. A later lawsuit in 2018 challenged only the procedures by which the regulations were issued,  and was dismissed without addressing the validity of the law itself.

The perceived success of passport-denial laws as debt-collection tools on behalf of other, unrelated Federal and state government agencies, and the willingness of courts to subject them to only the lowest level of “rational basis” scrutiny, has tempted Congress to consider expanding passport denial to other groups of US citizens, for other purposes.

In  2017, Congress came close to enacting a law to deny a US passport to any US citizen who the Secretary of State has “determined” is “a member of or otherwise affiliated with an organization the Secretary has designated as a foreign terrorist organization.” Neither that individual “determination” nor that organizational “designation” would be made by a judge, and sanctions based on mere “affiliation” would seem to raise First Amendment freedom-of-association issues.

That law didn’t pass in 2017, but has been reintroduced  in one form or another in each session of Congress. It’s currently pending as H.R. 775, the Passport Revocation Act.

Meanwhile, the same bill in 2015 that added the passport revocation provisions for tax liens added a provision for denial of passports to applicants who have a Social Security number but decline to provide  it to the State Department on their passport application.

In line with the longstanding desire of the State Department for “discretion” in passport issuance, this law and its implementing regulations authorize, but do not require, the State Department to refuse passports to anyone who won’t disclose their Social Security number or submit a sworn statement that they don’t have a Social Security number:

The Department [of State] may refuse to issue a passport to an applicant who fails to provide his or her Social Security account number on his or her passport application.

Neither the law nor the implementing regulations establish any guidelines for the exercise of this discretion, leaving it vulnerable to arbitrariness and abuse.

What if you don’t have a Social Security number? According to the State Department’s passport FAQ:

If you would like to apply for a U.S. passport, and you don’t have a Social Security number, you will need to submit a statement, signed and dated, which includes the phrase, “I declare under penalty of perjury under the laws of the United States of America that the following is true and correct: I have never been issued a Social Security number by the Social Security Administration.”

This makes it clear that a Social Security number isn’t a qualification or indication of eligibility for a passport. As with so many other ID requirements, it’s not being used as a credential or proof of a qualification but as an enabler for control. Its function in this use case is to link passport applications to other government blacklists created by other agencies and used for purposes unrelated to passports or Social Security payments or benefits.fundamental right like freedom of movement.

This law went into effect in 2015, and US passports are valid for a maximum of 10 years. So the last of the passports issued in 2014 before Social Security numbers began to be demanded from passport applicants (or at least those applicants who have Social Security numbers) are expiring this year in 2024.

What legal options are available to those US citizens who haven’t previously provided their Social security number to the State Department, but who want a US passport?

The normal procedure for challenging the denial or withholding of a US passport is to file a lawsuit seeking a “writ of mandamus” from the court to compel the State Department to issue a passport (although the government has argued in some cases that challenges to passport denials should instead be brought under the Administrative Procedure Act). There have been numerous mandamus actions like this, but few precedential court decisions and none that we can find related to the demand for Social Security numbers.

The government’s response to many passport denial cases has been to issue passports to those who sue, and then try to get their lawsuits dismissed as “moot” to avoid having judges review their earlier passport denials.  This is similar to the government’s tactic of mooting challenges to travel and other blacklists by taking people off the blacklists after they sue. That practice is currently under review by the Supreme Court in FBI v. Fikre, with a decision due at any time.

(Notably, after the oral argument in this case in January 2024, the government filed an unusual letter of “clarification” with the Supreme Court, doubling down on its categorical refusal to tell even lawyers with security clearances why it has blacklisted their clients, even if it might sometimes share some of its secret derogatory information about their clients with Federal judges, without possibility of cross-examination or rebuttal.)

A US citizen prohibited from leaving the US without a US passport could also seek an injunction prohibiting the government from enforcing the law against leaving or returning to the US without a passport. Such an injunction might create a legally useful precedent, but in practice would probably be a largely pyrrhic victory, since no other country would be likely to admit a US citizen with no passport, except as an applicant for asylum.

So far as we can tell, a mandamus action to force the government to issue a passport without demanding a Social Security number (if it exists) would be a case of first impression. So would any challenge to passport denial based on international law or the changed factual circumstances since the 2009 prohibition on leaving or entering the SS without a passport, even to or from Mexico or Canada by land.

A case of first impression sometimes has better prospects than a case that challenges bad precedents, but it’s always a gamble. Not every potential test-case plaintiff or lawyer wants to take that risk. But until someone tests these laws, and the US government’s interpretations of them, in court, the government will go on with its business as usual, asserting arbitrary authority to decide which US citizens can or can’t get US passports or travel abroad.

3 thoughts on “US passports and freedom of international travel

  1. Hi Edward. I am the Petitioner in CASE NO: 8-23-cv-00070-CJC-ADS asking the court for a Writ of Mandamus in the instance in which you write. One unsupported line in a huge Obama omnibus bill requires “your” SSN to be provided, whether you have one or not. This forces a citizen to accept federal programs and adhesions he may not wish to have. I am not happy with the way my case was handled by my attorney, nor that I was forced to comply in order to travel, but had no other choices.
    Thank you for the good work you are doing!

  2. The “American” (of the 50 states) should not expect to be able to enter a foreign country without a passport but they should expect to be able to enter the 50 states without a passport? What defines a U.S. citizen? What is U.S. or the U.S.? And the “States”? What is United States? These are all legal terms. What does the passport represent? Who is the issuing authority? What is their legal foundation and authority? Is it just a cabal of people who control the gates and you have to get “their” documentation to travel according to “their” rules and regulations? With the “United States of America” having nothing to do with it?

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