Earlier this month, as part of a lengthy and complex bill to reauthorize the US State Department,  the Chair of the House Foreign Affairs Committee, Rep. Brian Mast (R-FL) revived a proposal that had been rejected but came close to passage in 2017 to authorize the Secretary of State to summarily deny or revoke the passport of any US citizen on the basis of an extrajudicial determination by the Secretary that a US citizen has “knowingly aided, assisted, abetted, or otherwise provided material support to an organization the Secretary has designated as a foreign terrorist organization”.

The proposal drew immediate condemnation on both due process and First Amendment grounds. “Provide material support” has been interpreted to include making or amplifying statements supporting the political goals of a banned organization — i.e., free speech.

Last week, during markup of the State Department reauthorization bill, the Committee on Foreign Affairs approved an amendment sponsored by Rep. Mast to remove the passport denial and revocation provisions he himself had introduced a week earlier.

We’re pleased that this trial balloon went down in flames so quickly. But we’re disturbed that it was even introduced.

If there’s any silver lining in this episode, it’s that it’s proved a teachable moment to articulate the relationship between passports, travel, and the First Amendment.

We’re especially pleased by the comment of Rep. Joaquin Castro (D-TX):

Travel abroad is a form of expression and association.

In saying this, Rep. Castro recognized that, as we’ve always argued, to travel is “to assemble”, and to do so is an act directly protected by the First Amendment guarantee of “the right of the people… to assemble”.

Since 2009, when revised regulations removed exceptions for travel without passports across US land borders and within the Western Hemisphere, it has been “unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.” (8 US Code § 1185).

This means that revoking or denying issuance of  a US passport to a US citizen amounts to criminalizing any attempt by them to flee the US, or to return home if they are abroad.

This affects even dual or multiple citizens. It’s legal for a dual US citizen to enter or leave the US with another passport, although most immigration lawyers would recommend against doing so. But this is legal only if such a dual citizen has and carries with them (“bears”) a valid US passport when they use their non-US passport. So if a dual or multiple US citizen’s US passport is seized or invalidated, it becomes illegal for them to leave or try to leave the US, even using their valid non-US passport!

We think this law is unconstitutional on its face, and should be challenged and overturned. But so far as we can tell, it hasn’t been tested since the regulations were changed to make carrying a US passport requirement for all entry to, or exit from, the US by US citizens. When this law was previously upheld, it was on the basis — clearly no longer applicable — that a passport was merely a convenience, not a necessity for international travel.

As we noted when it was first considered in 2017, the proposal for extrajudicial passport denial or revocation would violate both international human rights treaty law on the freedom of movement and the First Amendment right to assemble.

As long as the law makes a US passport a prerequisite for a US citizen’s exercise of their right to leave or return to the US, a US passport is a right for every US citizen. Any provisions for revocation or denial of a passport should be subject to strict scrutiny, and decision to deny or revoke a US passport should be made by a judge, in accordance with Constitutional standards of both substantive and procedural due process.