Notes of the Month

Three Vital Court Decisions

1. The Shachtman Case

From New International, Vol.21 No.2, Summer 1955, pp.71-72.
Marked up up by Einde O’Callaghan for ETOL.

The Court of Appeals on June 23 handed down a unanimous decision in favor of Shachtman’s appeal against the State Department’s denial of his right to a passport that is both momentous and historic in its consequences.

The Court held that the “denial of a passport accordingly causes a deprivation of liberty that a citizen otherwise would have. The right to travel, to go from place to place as the mean’s of transportation permit, is a natural right subject to the rights of others and to reasonable regulation under the law. A restraint imposed by the Government of the United States upon this liberty, therefore, must conform with the provision of the Fifth Amendment that “No person shall be ... deprived of ... liberty ... without due process of law.”

The court found that due process was denied to Shachtman and that the Secretary of State acted “arbitrarily,” relying only upon the fact that the Independent Socialist League was on the Attorney General’s list.

Five main points in Attorney Joseph L. Rauh’s brief were accepted by the court:

It found that the Secretary of State did not use his discretionary powers in relying solely on the Attorney General’s listing, but acted arbitrarily.
It found that the listing of the Attorney General, initially made to apply to government employment, has no competency for passport purposes.
It took note of the fact that the ISL was placed on the Attorney General’s list without notice, hearing or opportunity to rebut, and therefore denied Shachtman his rights under the due process clause of the Constitution.
It found that the denial of a passport was on the basis of the listing only, and not because of any independent determination that Shachtman might commit acts of “misconduct” abroad.
It took particular note that the Attorney General has denied a hearing to the ISL.

In his concurring opinion, Chief Judge Edgerton of the Court of Appeals added, in part:

“1. The League is ‘an anti-Communist educational organization.’

“2. The Passport Division knew plaintiff has tried and failed to get the Attorney General to give the League a hearing.

“3. The premise that a man is not fit to work for the Government, does not support the conclusion that he is not fit to go to Europe. The Attorney General’s list was prepared for screening Government employees, not passport applicants.

“4. Even in connection with screening Government employees, membership in a listed organization was intended to be only an inconclusive item of evidence.

“5. In other connections, the list has not even any ‘competency to prove the subversive character of the listed associations ...’” (Emphasis mine – A.G.)

The decision is not only notable for what it set down as law in passport cases, but even more, for the manner in which it has pointed up the problems created by the insupportable uses of the Attorney General’s list and the failure of the Attorney General to grant hearings of any kind for seven years!

The next issue of the New International will carry a full review of the case and analysis in detail of this great decision by the Court of Appeals.

A.G.

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