Maehr v. U.S. Department of State ( 2021 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 20, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
JEFFREY T. MAEHR,
Plaintiff - Appellant,
v. No. 20-1124
UNITED STATES DEPARTMENT OF
STATE, including Secretary of State
Antony Blinken*, in his official capacity,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:18-CV-02948-PAB-NRN)
_________________________________
Bennett L. Cohen (Sean R. Gallagher and Megan E. Harry with him on the briefs),
Polsinelli PC, Denver, CO, for Plaintiff - Appellant.
Kathleen E. Lyon, Attorney (Richard E. Zuckerman, Principal Deputy Assistant Attorney
General, Joshua Wu, Deputy Assistant Attorney General, Francesca Ugolini, Attorney,
Arthur T. Catterall, Attorney, and Jason R. Dunn, United States Attorney with her on the
brief), Tax Division, U.S. Department of Justice, Washington, D.C., for Defendant -
Appellee.
__________________________________
*
* Pursuant to Fed. R. App. P. 43(c)(2) Mike Pompeo is replaced by Antony Blinken as
appellee in this case.
_________________________________
Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and PHILLIPS,
Circuit Judge.
_________________________________
PER CURIAM
In this appeal, we affirm the judgment of the district court. This disposition is
addressed in two opinions: one by Judge Lucero, and one by Judge Matheson.
Parts I, II, and III of Judge Lucero’s opinion constitute the unanimous opinion of
the court. Part I provides relevant background. Part II concludes the district court had
subject-matter jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702. Part III rejects
Mr. Maehr’s arguments concerning the Privileges and Immunities clauses and the
common law principle of ne exeat republica.
Judge Matheson’s opinion, joined by Judge Phillips, is the majority opinion on
Mr. Maehr’s substantive due process challenge. On this issue, Judge Lucero concurs in
the judgment in Part IV of his opinion.
LUCERO, Senior Circuit Judge.
Six years ago, the federal government instituted a new approach to encourage
delinquent taxpayers to pay up: threaten to withhold or revoke their passports until their
tax delinquency is resolved. No nexus between international travel and the tax
delinquency needs be shown; the passport revocation serves only to incentivize
2
repayment of the tax debt. We are the first circuit to review the constitutionality of this
approach.
Appellant Jeffrey T. Maehr is one of the Americans caught in the snares of this
scheme. He challenged the lawfulness of the United States Department of State’s
revocation of his passport, arguing that it violates substantive due process, runs afoul of
principles announced in the Privileges and Immunities clauses,1 and contradicts caselaw
concerning the common law principle of ne exeat republica. The district court rejected
all three of his challenges. We affirm the district court on each of these arguments.
I
In 2015, Congress passed and the President signed into law the Fixing America’s
Surface Transportation Act (“FAST Act”), Pub. L. 114-94, 129 Stat. 1312 (2015), an
omnibus transportation bill that included a provision permitting the denial or revocation
of passports for taxpayers with significant tax debts. Under the FAST Act, if a taxpayer
is subject to a delinquent federal tax debt of $50,0002 or more, the IRS may certify the
delinquency to the Secretary of the Treasury, who in turn transmits the certification to the
Secretary of State. I.R.C. § 7345. The Secretary of State is thereafter prohibited from
issuing a new passport to the taxpayer and is authorized, though not required, to revoke a
1
Maehr finds support for this theory in both the Privileges and Immunities Clause
of Article IV, Section 2 and the Privileges or Immunities Clause of the Fourteenth
Amendment. We refer to them collectively as “the Privileges and Immunities clauses.”
2
This amount is adjusted for inflation beginning in 2016.
3
previously issued passport.3 22 U.S.C. § 2714a(e)(1), (2). These consequences remain
with the taxpayer until any of several circumstances occur, such as full satisfaction of the
tax debt, entry into an installment agreement with the IRS, or a finding that the original
certification was erroneous. I.R.C. § 7345(c).
The scheme’s rationale appears to have been simply to use the threat of passport
revocation as an incentive for tax compliance. No direct connection between tax
delinquency and international travel, such as evidence the delinquent taxpayer is
secreting assets overseas, is required to effect a passport revocation. Review of the
legislative history also yields no evidence that passport revocation was aimed at, for
example, thwarting delinquent taxpayers from fleeing the country or evading tax
collection. See Michael S. Kirsch, Conditioning Citizenship Benefits on Satisfying
Citizenship Obligations, 2019 U. Ill. L. Rev. 1701, 1712 (2019) (“[T]he GAO Report,
upon which the FAST Act limitations are based, did not explicitly mention [an anti-
fleeing rationale], focusing instead on the tax compliance incentives associated with the
passport limitations.”). Rather, a straightforward incentive mechanism—making tax
delinquency more painful by inhibiting one’s ability to enter or exit the country—
explained why the Senate Finance Committee “believe[d] that tax compliance [would]
3
For ease of reference, we will refer to both the denial of new passports and the
revocation of passports previously issued as “revocation.”
4
increase if issuance of a passport is linked to payment of one’s tax debts.” S. Rep. No.
114-45, 57 (2015).
Passport revocation under the FAST Act is thus an example of a species of tax
penalties known as collateral sanctions. “Unlike traditional tax penalties that require
noncompliant taxpayers to pay money to the taxing authority, collateral tax sanctions
require noncompliant taxpayers to forfeit a nonmonetary government benefit or service.”
Joshua D. Blank, Collateral Compliance, 162 U. Pa. L. Rev. 719, 728 (2014). They
“increasingly apply to individuals who have failed to obey the tax law,” perhaps because
they “can promote voluntary tax compliance more effectively than the threat of additional
monetary tax penalties.” Id. at 720. States and the federal government impose a variety
of collateral tax sanctions, ranging from diminished housing assistance to the cancelling
of driver’s licenses. Id. at 739-40. Passport revocation had not been used to thwart tax
delinquency until the FAST Act, but it has been used in the context of non-payment of
child support. See 42 U.S.C. § 652(k).
Appellant Jeffrey T. Maehr is among the many4 Americans whose tax delinquency
rendered him subject to passport revocation under the FAST Act. Despite a number of
4
According to the IRS, some 436,400 taxpayers qualified for passport revocation
under § 7345 as of April 2018. Nat’l Taxpayer Advocate, Objectives Report to Congress,
FY 2019, vol. 1, at 80.
5
challenges to a 2011 IRS tax assessment,5 Maehr owes approximately $250,000 in taxes.
In 2018, the IRS certified Maehr’s tax delinquency, and the State Department
subsequently revoked Maehr’s passport. Maehr then filed a complaint challenging the
authority of the Department of State to revoke passports on the basis of tax debts.6
The district court granted the Department of State’s motion to dismiss for failure
to state a claim. It concluded that it would have subject-matter jurisdiction on the basis
of the writ of mandamus if, and only if, the Department of State acted unconstitutionally
in revoking Maehr’s passport. Because the district court held that passport revocation
under the FAST Act is supported by a rational basis and not otherwise unconstitutional, it
dismissed Maehr’s claim for want of jurisdiction. This appeal followed.
II
After spilling a great deal of ink thrashing out the issues of subject-matter
jurisdiction and sovereign immunity before the district court, the parties appear to have
settled on a mutually satisfactory resolution. Both Maehr and the Department of State
now identify 28 U.S.C. § 1331 as a basis for the district court’s subject-matter
5
See, e.g., Maehr v. Comm’r of Internal Revenue, 480 F. App’x 921 (10th Cir.
2012); Maehr v. United States, 767 F. App’x 914 (Fed. Cir. 2019). Though he continues
to dispute his tax assessment, Maehr stipulates for purposes of this appeal that he owes
the amount in question to the IRS.
6
Due to a suggestion made by the presiding magistrate judge, pro bono counsel
agreed to represent Maehr in this case of first impression. We thank the pro bono counsel
for their help with this matter.
6
jurisdiction and 5 U.S.C. § 702 of the Administrative Procedure Act (APA) as an
applicable waiver of sovereign immunity. We conclude the same.
Because Maehr seeks an injunction ordering the Department of State to return his
passport, we are asked to “exercise[] [our] traditional powers of equity . . . to prevent
violations of constitutional rights.” Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225,
1231 (10th Cir. 2005). These powers flow from the long-recognized “jurisdiction of
federal courts to issue injunctions to protect rights safeguarded by the Constitution.” Bell
v. Hood, 327 U.S. 678, 684 (1946). “Bell v. Hood held that suits for relief directly under
the Constitution fall within [the] grant of jurisdiction” provided by § 1331. Simmat, 413
F.3d at 1232. “Section 1331 thus provides jurisdiction for the exercise of the traditional
powers of equity in actions arising under federal law.” Id. The district court therefore
had jurisdiction under § 1331, and we have appellate jurisdiction under 28 U.S.C. § 1291.
Sovereign immunity is no bar to our or the district court’s exercise of jurisdiction.
Section 702 of the APA waives sovereign immunity for actions “stating a claim that an
agency . . . acted or failed to act . . . under color of legal authority.” “This waiver is not
limited to suits under the Administrative Procedure Act.” Simmat, 413 F.3d at 1233. It
is therefore applicable to a claim that the Department of State acted unconstitutionally by
7
revoking Maehr’s passport.7 Consequently, the district court was free to exercise the
jurisdiction conveyed by § 1331.
Without the benefit of briefing from either party on the applicability of § 702, the
district court was left to determine whether jurisdiction and waiver of sovereign
immunity was properly founded on a theory of mandamus, see 28 U.S.C. § 1361, or on
the judicial review created by passport revocation itself, see § 7345. Our resolution of
jurisdiction and sovereign immunity on the basis of § 1331 and § 702, respectively,
obviates any need to consider that debate. We turn to the merits.
III
The opinion of the court is unanimous as to two of the arguments raised by Mr.
Maehr. The first concerns the Privileges and Immunities clauses; the second relies on the
common law principle of ne exeat republica. Each will be addressed in turn.
A
Maehr contends that the Privileges and Immunities Clause of Article IV, Section 2
and the Privileges or Immunities Clause of the Fourteenth Amendment encompass the
right to international travel and thereby limit the federal government’s ability to restrict
7
While § 702 does not appear to have been briefed to the district court by either
party as a means of avoiding sovereign immunity, there is no issue with regards to
forfeiture of the argument. “[F]ederal courts have an independent obligation to ensure
that they do not exceed the scope of their jurisdiction, and therefore they must raise and
decide jurisdictional questions that the parties either overlook or elect not to press.”
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011).
8
such travel. His argument is implausible. These clauses apply to states, not the federal
government, and Maehr can articulate no way around this fact. Even if the clauses could
somehow constrain the federal government, no Supreme Court decision has ever
interpreted these clauses as at all relevant to a right to international travel.
As even Maehr admits, the Privileges and Immunities clauses apply only to the
states, not to the federal government. Maehr is right to so concede because the limited
applicability of the clauses to states is well-settled. See Slaughter-House Cases, 83 U.S.
36, 77 (1872) (“[The Privileges and Immunity Clause’s] sole purpose was to declare to
the several States, that whatever those rights, as you grant or establish them to your own
citizens . . . the same . . . shall be the measure of the rights of citizens of other States
within your jurisdiction.”); Pollack v. Duff, 793 F.3d 34, 41 (D.C. Cir. 2015) (collecting
cases). Because this case concerns a federal statute enforced by federal actors, the
clauses are of no relevance.
To evade this unavoidable conclusion, Maehr asks us to make a leap: we should
consider the Privileges and Immunities clauses “reverse incorporated” against the federal
government. For this proposition he cites Bolling v. Sharpe, 347 U.S. 497 (1954) and its
progeny, which held that the federal government’s duty to avoid segregation and other
racial classifications cannot be any less stringent than that of the states. Yet these cases
addressed only racial discrimination; they were not written so broadly as to encompass all
“constitutional civil rights protections,” as Maehr claims. They were also rooted in
different constitutional provisions and a significantly different context. “[T]he central
9
purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating
from official sources . . . .” McLaughlin v. Florida, 379 U.S. 184, 185 (1964). Bolling’s
reverse incorporation was necessary to avoid the “unthinkable” result that the District of
Columbia could continue its policy of school segregation in the wake of Brown v. Board
of Education merely because it fell under the federal government’s umbrella. 347 U.S. at
500. In contrast, reverse incorporation of the Privileges and Immunities clauses would be
not only novel but also devoid of any support from the clauses’ text or context.
Even if the Privileges and Immunities clauses applied to the federal government,
they would be of no import in this case because the right to international travel is not a
privilege or immunity encompassed by the clauses. Maehr is correct that the scope of
these clauses, as limited by the Slaughter-House Cases, does include the “right to travel.”
See Zobel v. Williams, 457 U.S. 55, 78-81 (1982) (O’Connor, J., concurring). But that
right to travel has always been interpreted to mean interstate travel, never international
travel—an unsurprising fact given the clauses’ limited application to states, which lack
any role in the regulation of international travel. The entirety of Maehr’s argument to the
contrary appears to be that in Saenz v. Roe, 526 U.S. 489 (1999), the Court referred to
“the right to travel” as a privilege of citizenship without explicitly differentiating between
interstate and international travel, and defined this right in broad terms as “the right to go
from one place to another.” Id. at 500. But just two pages earlier, the Court mentioned
that the constitutional right in question was the “right to travel from one state to another.”
Id. at 498 (quotation omitted). This makes sense: the case was about a California statute
10
that limited the welfare benefits available to out-of-state citizens who had recently moved
to California. Maehr does not provide any further explanation of how he finds a right to
international travel in the text or caselaw of the Privileges and Immunities clauses.
The Privileges and Immunities clauses do not apply to the federal government and
do not protect any right to international travel. For either of these reasons, the district
court was correct to reject the argument.
B
The writ of ne exeat republica is “a form of injunctive relief ordering the person to
whom it is addressed not to leave the jurisdiction of the court or the state.” United States
v. Barrett, 2014 WL 321141, *1 (D. Colo. Jan. 29, 2014). It is essentially “a form of civil
arrest” that can be used to confine a person to the country, a particular jurisdiction, or
even his house. Aetna Cas. & Sur. Co. v. Markarian, 114 F.3d 346, 349 (1st Cir. 1997).
The Internal Revenue Code permits its use to enforce tax obligations. I.R.C. § 7402. Our
circuit has never announced a standard for the issuance of ne exeat writs, but other courts
have invoked the four-factor test for preliminary injunctions. See, e.g., Barrett, 2014 WL
321141, at *7.
Maehr contends that a similar standard should apply to passport revocation under
the FAST Act given that scheme’s similar purpose to ne exeat writs issued under I.R.C.
§ 7402. He cites United States v. Shaheen, 445 F.2d 6 (7th Cir. 1971), which vacated a
ne exeat writ issued against a delinquent taxpayer that barred him from leaving the
jurisdiction because he intended to depart the United States. The court, after noting that
11
the right of international travel is constitutionally protected, explained that when “relief
impinges upon a constitutionally protected personal liberty, . . . the Government has the
burden of demonstrating that [it] is a necessary, and not merely coercive and convenient,
method of enforcement.” Id. at 10–11. Maehr urges that a similar burden should apply
to passport revocation under the FAST Act.
Writs of ne exeat differ significantly from FAST Act passport revocations in three
ways. First, the scope of ne exeat is much broader, restricting freedom of movement
domestically as well as internationally. Second, writs of ne exeat can be issued even if
the underlying tax debt is contested by the taxpayer, see, e.g., Shaheen, 445 F.2d at 10,whereas the FAST Act requires that the taxpayer’s rights to challenge a contested liability
have lapsed or been exhausted prior to passport revocation. I.R.C. § 7345(c). Third, ne
exeat is an essentially equitable common law remedy that has been codified in statute,
making it sensible that courts have required showings of evidence paralleling those
required for preliminary injunctions. Passport revocation under the FAST Act, in
contrast, is a purely statutory and legal scheme with built-in due process protections.
Ne exeat is readily distinguishable from passport revocation under the FAST Act.
The caselaw governing ne exeat is therefore inapplicable to this case. We affirm the
district court’s rejection of this argument.
IV
Maehr contends that the revocation of his passport based on his tax delinquency
amounted to an infringement of his right to international travel in violation of substantive
12
due process. I ultimately agree with my colleagues that Maehr inadequately briefed the
issue to permit the resolution that I conclude the law otherwise requires. Because of the
importance of the right at stake, I write this part separately to provide an analysis of the
intersection of substantive due process and the right of international travel.
“[A]djudication of substantive due process claims may call upon the Court in
interpreting the Constitution to exercise that same capacity which by tradition courts
always have exercised: reasoned judgment. Its boundaries are not susceptible of
expression as a simple rule.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 849
(1992). Substantive due process “has represented the balance which our Nation, built
upon postulates of respect for the liberty of the individual, has struck between that liberty
and the demands of organized society.” Id. at 850 (quoting Poe v. Ullman, 367 U.S. 497,
542 (1961) (Harlan, J., dissenting)). “This ‘liberty’ is not a series of isolated points,” but
rather a “rational continuum” that recognizes “that certain interests require particularly
careful scrutiny of the state needs asserted to justify their abridgment.” Poe, 367 U.S. at
543 (Harlan, J., dissenting).
Ordinarily, this continuum collapses into two poles. If a liberty interest protected
by the Due Process Clause is deemed fundamental, it is reviewed under strict scrutiny,
meaning any infringement must be “narrowly tailored to serve a compelling state
interest.” Reno v. Flores, 507 U.S. 292, 302 (1993). A liberty interest less than
fundamental generally receives rational basis review, which demands only that a
governmental infringement on the interest “be rationally related to legitimate government
13
interests.” Washington v. Glucksberg, 521 U.S. 702, 728 (1997); see also Dias v. City
and Cty. of Denver, 567 F.3d 1169, 1181 (10th Cir. 2009).
I would not lightly step away from the default options governing substantive due
process claims, but neither would doing so blaze an entirely new trail. There are
significant exceptions in Supreme Court caselaw to the typical framework for substantive
due process claims. Perhaps the most notable emerges from abortion caselaw, in which
the Supreme Court has fashioned an “undue burden” standard that breaks from both strict
scrutiny and rational basis. See Casey, 505 U.S. at 874 (1992). The Court explained that
such a standard is an “appropriate means of reconciling the State’s interest with the
woman’s constitutionally protected liberty.” Id. at 876. Similarly, in Obergefell v.
Hodges, the Court held that the right to marry is fundamental but struck down laws that
barred same-sex couples from exercising this right without applying strict scrutiny. 576
U.S. 644, 675-76 (2015). Though the default, the two-tiered approach to substantive due
process claims is not rigidly adhered to by the Supreme Court.
In order to determine the appropriate level of scrutiny to use in evaluating a
substantial infringement on international travel, I am guided by several sources and
authorities. I proceed with “careful respect for the teachings of history” and “solid
recognition of the basic values that underlie our society.” Moore v. City of East
Cleveland, 431 U.S. 494, 503 (1977) (quotation omitted). “History and tradition guide
and discipline” the inquiry. Obergefell, 576 U.S. at 664. And although my research
14
leads me to no authority that squarely controls the outcome of this inquiry, I look to
Supreme Court precedent that speaks to the question at issue.
A
That the right to international travel is deeply woven into our history and tradition
is hard to deny. The Magna Carta established that it “shall be lawful for any man to leave
and return to our kingdom unharmed and without fear, by land or water, preserving his
allegiance to us, except in time of war, for some short period, for the common benefit of
the realm.” 1215 Magna Carta, Section 42. Similar notions appear in Blackstone: “By
the common law, every man may go out of the realm for whatever cause he pleaseth,
without obtaining the king’s leave . . . .” Sir William Blackstone, Commentaries on the
Laws of England, Book I, Ch. 7 at 265.8 The colonists carried this tradition forward by
citing British restraints on movement both between the colonies and beyond as causes for
the Revolutionary War. See Kahn, International Travel at 285-86.
Nor did the American commitment to freedom of movement abate after its
founding. Movement between the United States and Canada, for example, was both
commonplace and protected by treaty. See Treaty of Amity, Commerce and Navigation
(Jay Treaty), Eng.-U.S., art. III, Nov. 19, 1794, 8 Stat. 116, 117. “[F]reedom of travel
was in the nineteenth century a dominant theme in our foreign policy.” Charles E.
8
I note, however, that this right “waxes and wanes over the course of English
legal history.” Jeffrey Kahn, International Travel and the Constitution, 56 UCLA L. Rev.
271, 339 n.371 (2008).
15
Wyzanski, Jr., “Freedom to Travel,” Atlantic Monthly 67 (Oct. 4, 1952). As Nathaniel
Hawthorne wrote while serving as American consul to Liverpool in the 1850s, “Sitting
. . . in the gateway between the Old World and the New, where the steamers and packets
landed the great part of our wandering countrymen, and received them again when their
wanderings were done, I saw that no people on earth have such vagabond habits as ours.”
Our Old Home: A Series of English Sketches (1863). Hawthorne was not alone in
enshrining travel as a distinctly American characteristic. “The American is a migratory
animal. He walks the streets of London, Paris, St. Petersburg, Berlin, Vienna, Naples,
Rome, Constantinople, Canton, and even the causeways of Japan, with as confident a step
as he treads the pavements of Broadway.” Robert Tomes, “The Americans on Their
Travels,” Harper’s New Monthly Magazine 31 (1865). In both law and the popular
imagination, international travel was accorded special import.
Only in the twentieth century did the American federal government begin
imposing significant regulations on international travel. See Kahn, International Travel
at 313-17. Even then, supporters of these regulations made clear that they conceived of
their efforts as in harmony with the Anglo-American tradition of protecting the right of
international travel. For example, when the Deputy Under Secretary of State testified
before the Senate Committee on Foreign Relations regarding proposed watershed
passport legislation, he explained, “I find nothing in the legislation which the
administration has proposed on this subject in contradiction to the principles stated in the
Magna Carta. The policy of our Government is to promote the travel of its
16
citizens. . . . However, as recognized in the Magna Carta the State has an obligation for
the common good to exercise some controls over passports in times of war and national
emergency.” Passport Legislation: Hearing on S. 2770, S. 3998, S. 4110, and S. 4137
Before the S. Comm. on Foreign Relations, 85th Cong. 19 (1958) (statement of Robert D.
Murphy, Deputy Under Secretary of State, Dep’t of State). Thus even as the federal
government expanded its control over international travel, it did so in recognition of the
American tradition with which its efforts were in tension and argued that its limitations fit
within the narrow historic exceptions to unfettered travel. Tax compliance incentives
were certainly not of a piece with those exceptions.
At a more fundamental level, the right to international travel seems to me a
prerequisite for the freedom guaranteed by the Constitution. It is true that a large
percentage of Americans manage to live substantially free lives without ever traveling
internationally.9 Indeed, in our culture, international travel is often viewed as more of a
luxury than a right, much less a bedrock right undergirding our nation’s ordered liberty.
That said, freedom to leave one’s country and explore the world beyond national borders
strikes me as a deep and fundamental component of human liberty. It is for good reason
that such freedom has been called “a natural right,” Shachtman v. Dulles, 225 F.2d 938,
9
A recent survey found that 40% of Americans had never left the United States.
John Bowden, Survey: 11 Percent of Americans Have Not Traveled Outside Home State,
The Hill (May 3, 2019), https://thehill.com/policy/transportation/441989-11-percent-of-
americans-have-not-traveled-outside-their-state-survey.
17
941 (D.C. Cir. 1955) and “a necessary attribute of democratic society,” Leonard B.
Boudin, The Constitutional Right to Travel, 56 Colum. L. Rev. 47, 49 (1956). To permit
the government power to deny its citizens access to the outside world without a strong
reason to do so seems inimical to the liberty that is every American’s birthright. Further,
if I imagine America in the absence of the right, with the citizenry entirely deprived of
the right of international travel and the borders closed to all, it would be impossible to
consider our country truly free. These considerations lead me to conclude that the right
to international travel is implicit in the basic liberty protected by due process.
Moreover, the right to travel internationally is all but indispensable for the
exercise of another long-established right: the right of expatriation, or the right to quit
one’s country and renounce one’s citizenship. In 1868, Congress enacted legislation to
protect this right, declaring, “[T]he right to 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 . . . .” Act of July 27, 1868, 15 Stat. 223. It therefore “declared inconsistent
with the fundamental principles of this government” any governmental action that
“denies, restricts, impairs, or questions the right of expatriation.” Id. at 224; see also
Mackenzie v. Hare, 239 U.S. 299, 309 (1915) (“In 1868 Congress explicitly declared the
right of expatriation to have been and to be the law.”). Expatriation is contingent on exit.
If the right of expatriation is deeply woven into our country’s history, so too is the
concomitant right to travel beyond our borders.
18
In light of the “history and tradition [that] guide and discipline” the inquiry,
Obergefell, 576 U.S. at 664, there is strong reason to conclude that the right of
international travel cannot be substantially limited without passing muster under some
form of heightened scrutiny.
B
History and tradition establish the importance of the right to international travel,
importance which suggests heightened scrutiny of incursions on that right. Supreme
Court precedent bolsters that suggestion.
Two cases illustrate the importance the Court has ascribed to international travel.
In similar cases, the Supreme Court twice struck down the State Department’s denials of
passports to Communists on the basis of their political affiliations. Kent v. Dulles, 357
U.S. 116 (1958); Aptheker v. Sec’y of State, 378 U.S. 500 (1964). Though these cases
implicated First Amendment protections as well as the right to international travel, the
Court’s analysis was not circumscribed by that context; its reasoning repeatedly
highlighted the importance of the right to international travel.
Kent, a case concerning the denial of passports to Americans on the basis of their
alleged Communist beliefs, 357 U.S. at 117-19, emphasized history and tradition in its
evaluation of international travel: “Freedom of movement across frontiers in either
direction, and inside frontiers as well, was a part of our heritage.” 357 U.S. at 126. This
heritage suggested the profound import of freedom of movement both within and across
borders, which “may be as close to the heart of the individual as the choice of what he
19
eats, or wears, or reads. Freedom of movement is basic in our scheme of values.” Id.While the Court in Kent declined to decide the case on the basis of the constitutional
protections afforded the right to international travel, relying instead on statutory grounds,
it indicated that by doing so, it avoided “important constitutional questions.” Id. at 130.
This dictum hinted at the heightened review that the Court would later bring to bear when
the constitutional question was squarely presented.
Six years after Kent was decided, the Court turned to the constitutional dimensions
of the right to international travel in Aptheker. In Aptheker, the Court considered the
constitutionality of a statute that made it a crime for a member of a Communist
organization to attempt to use or obtain a passport. 378 U.S. at 507. The Court
determined that statutes that impose substantial restrictions on the right to international
travel were to be evaluated under the following standard: “Even though the
governmental purpose be legitimate and substantial, that purpose cannot be pursued by
means that broadly stifle fundamental personal liberties when the end can be more
narrowly achieved.”10 Id. at 508 (quotation omitted). In more ways than one, the statute
10
The context for this statement makes clear that the “fundamental personal
libert[y]” at issue was the right to international travel rather than any First Amendment
right. Preceding that statement was this: “Although previous cases have not involved the
constitutionality of statutory restrictions upon the right to travel abroad, there are well-
established principles by which to test whether the restrictions here imposed are
consistent with the liberty guaranteed in the Fifth Amendment.” Id. at 507-08. There is
no indication from this context that the Court viewed the standard it announced as
contingent on travel restrictions also burdening First Amendment rights.
20
enacted by Congress did not achieve its end by way of narrow means. See id. at 512-14.
“The prohibition against travel is supported only by a tenuous relationship between”
means and ends, and “[t]he broad and enveloping prohibition indiscriminately excludes
plainly relevant considerations.” Id. at 514. Moreover, Congress had “within its power
less drastic means of achieving the congressional objective.” Id. at 512 (quotation and
footnote omitted). The statute was therefore “unconstitutional on its face.” Id. at 514.
From these two cases, I discern several features of the standard to be applied to
international travel limitations. When such a limitation is substantial, it is not
automatically justified by virtue of its underlying governmental purpose being
“legitimate,” or even “substantial.” Id. at 508 (quotation omitted). The limitation must
also be tailored. Aptheker identifies a number of considerations that bear on whether a
limitation is sufficiently tailored, including how “broadly” a liberty interest is “stifle[d],”
whether “less drastic means of achieving” the governmental purpose were available, and
whether the limitation “indiscriminately excludes plainly relevant considerations.” Id. at
508, 512, 514 (quotation omitted).
My colleagues note that dictum from a later Supreme Court case, Regan v. Wald,
468 U.S. 222 (1984), described the First Amendment interests at stake in Kent and
Aptheker as “controll[ing].” Id. at 241. We are indeed free to consider, though need not
be controlled by, subsequent Court “elaboration” of its earlier cases. See Indep. Inst. v.
Williams, 812 F.3d 787, 793 (10th Cir. 2016). But contradictory dictum is not
elaboration: That characterization is belied by the reasoning actually employed in those
cases. The Supreme Court has nowhere indicated that it no longer considers Kent and
Aptheker good law. It therefore remains binding precedent.
21
Subsequent Supreme Court decisions concerning international travel have not
undermined the force of Kent and Aptheker. I consider three in detail: Zemel v. Rusk,
381 U.S. 1 (1965); Califano v. Aznavorian, 439 U.S. 170 (1978); and Haig v. Agee, 453
U.S. 280 (1981).
Zemel addressed location-specific international travel restrictions made in light of
national security concerns. In Zemel, the Court upheld the Department of State’s
prohibition on travel to or within Cuba without specific authorization, a prohibition
issued in the immediate aftermath of the Cuban missile crisis. 381 U.S. at 3, 16. After
citing Kent and Aptheker for the protection afforded travel by the Due Process Clause,
the Court explained that “the fact that a liberty cannot be inhibited without due process of
law does not mean that it can under no circumstances be inhibited.” Id. at 14. “The
requirements of due process are a function not only of the extent of the governmental
restriction imposed, but also of the extent of the necessity for the restriction.” Id.(footnote omitted). The need to limit travel to Cuba in the early days of the Castro
regime was, in the view of the Court, severe: “[T]he restriction which is challenged in
this case is supported by the weightiest considerations of national security . . . .” Id. at
16. Those “weightiest considerations” sufficed to justify the Cuba-specific restrictions on
international travel. Id.Aznavorian concerned incidental burdens on international travel. The Aznavorian
Court upheld a statute that conditioned Supplemental Security Income benefits on the
beneficiary’s presence within the United States against a claim that the statute violated
22
the right to international travel. 439 U.S. at 171, 175. Significantly, the Court
distinguished the case before it from Kent, Aptheker, and Zemel because the statute in
question did not have “nearly so direct an impact on the freedom to travel internationally
as occurred in” those three cases. Id. at 177. Had the Court been reviewing Kent and
Aptheker under a rational basis standard, those cases likely would have passed muster
under that relaxed review. Instead, the Court emphasized that the statute before it “does
not limit the availability or validity of passports,” but instead “merely withdraws a
governmental [welfare] benefit . . . after an extended absence from this country.” Id. In
light of the merely “incidental” burden on international travel occasioned by the statute, it
was enough that “the provision [was] rationally based.” Id. at 177-78.
Agee, like Zemel, is a case in which international travel was restricted by reason
of paramount national security concerns. After Philip Agee, a former CIA agent, began a
campaign to disclose confidential information, including the identities of undercover CIA
agents and sources, the Secretary of State revoked his passport. Agee, 453 U.S. at 283-
86. The Court upheld this revocation on constitutional grounds. “[T]he freedom to travel
abroad with a ‘letter of introduction’ in the form of a passport issued by the sovereign is
subordinate to national security and foreign policy considerations; as such, it is subject to
reasonable governmental regulation.” Id. at 306. Revocation of a passport used to
jeopardize national security was such a reasonable governmental regulation. “It is
‘obvious and unarguable’ that no governmental interest is more compelling than the
security of the Nation.” Id. at 307 (quoting Aptheker, 378 U.S. at 509). The Court
23
further emphasized that passport revocation was no broader a means of achieving this
paramount governmental interest than necessary: “Restricting Agee’s foreign travel,
although perhaps not certain to prevent all of Agee’s harmful activities, is the only
avenue open to the Government to limit these activities.” Id. at 308.
I read these three cases as entirely in accordance with the standard hinted at in
Kent and announced in Aptheker. Zemel and Agee both arose in the context of
significant threats to national security, with the former coming in reaction to the
harrowing days of the Cuban missile crisis and the latter a response to a public disclosure
campaign that jeopardized the lives of CIA assets. In both cases, the Court characterized
the governmental interest served by the travel restriction as profound: “the weightiest
considerations” in Zemel, “no governmental interest more compelling” in Agee. 381
U.S. at 16; 453 U.S. at 307. Notwithstanding the supreme import of the governmental
interest being advanced, the travel restrictions in each case swept no more broadly than
necessary. The travel restriction in Zemel was limited to Cuba and permitted individual-
specific exceptions, while the passport revocation in Agee was “the only avenue open to
the Government to limit [Agee’s] activities.” 453 U.S. at 308. In both cases, the
opinions paid heed to the strength of the governmental interest and the tailoring of means
to ends that Aptheker requires. Aznavorian, meanwhile, addressed only an “incidental
effect” on international travel by a statute not primarily aimed at restricting it. 439 U.S.
at 177. The statute therefore did not “broadly stifle” international travel, unlike the
restrictions addressed by Aptheker. 378 U.S. at 508.
24
My review of Supreme Court precedent discerns a standard that clearly falls
somewhere between rational basis and strict scrutiny. As I read it, the rule the Supreme
Court has both announced and remained faithful to is as follows: substantial restrictions
on international travel must advance a “legitimate and substantial” interest and must not
sweep much more broadly than necessary. Aptheker, 378 U.S. at 508 (quotation
omitted). That rule closely resembles the language used to describe intermediate
scrutiny.11 See Clark v. Jeter, 486 U.S. 456, 461 (1988) (“To withstand intermediate
scrutiny, a statutory classification must be substantially related to an important
governmental objective.”); United States v. Reese, 627 F.3d 792, 802 (10th Cir. 2010)
(“To pass constitutional muster under intermediate scrutiny, the government has the
burden of demonstrating that its objective is an important one and that its objective is
advanced by means substantially related to that objective.” (quotation omitted)).
Before determining whether intermediate scrutiny is the appropriate standard to
apply, I attend to substantive due process caselaw governing the different levels of
scrutiny.
11
It also resembles strict scrutiny insofar as that standard has actually been
applied. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (“[W]e wish
to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact.’” (quotation
omitted)); see also Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical
Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 795-96 (2006).
The rigidity and inconsistency of the current substantive due process regime suggests to
me the infirmity of this atextual approach to the unenumerated constitutional rights. See
generally Joel Alicia and John D. Ohlendorf, Against the Tiers of Constitutional Scrutiny,
Nat’l Affs. 72 (Fall 2019).
25
C
I readily acknowledge that substantive due process claims are generally evaluated
under either of two tiers of scrutiny: strict scrutiny or rational basis. But this bifurcated
analytical scheme did not arise within and has not been applied to international travel.
This context requires a less simplistic, far more sophisticated analysis. My review
indicates that the two-fold approach is in significant tension with the procedure the
Supreme Court developed in Kent and Aptheker and carried forward in Zemel,
Aznavorian, and Agee. Those cases neither reject the proposition that international travel
is a fundamental right nor do they diminish international travel by declaring it subject to
mere rational basis review. Instead, they weave a much finer fabric. To pass
constitutional review, laws limiting international travel may not require a compelling
governmental interest, as strict scrutiny would demand. But on the other hand, the
Court’s cases do not consign international travel to the cavernous abyss of rational basis
review.
The importance attached to international travel both historically and culturally is
in discord with the typically forgiving evaluation that rational basis review entails.
Freedom to cross borders has deep roots into antiquity. In Anglo-American legal history,
the liberty to explore lands beyond national borders is a significant aspect of human
freedom. The right to exit is itself a safeguard against governmental incursions on other
rights and has found legal protection dating far back into our nation’s past. Though
26
Supreme Court authority more than these considerations primarily shape my analysis, I
am mindful of the historical protection due international travel.
Intermediate scrutiny is the best way to remain faithful to both the full spectrum of
Supreme Court caselaw and the role of international travel in the history of our nation
and its conception of a well-ordered liberty. It is the appropriate standard under which to
review substantial restrictions on international travel. Such a holding might appear to be
a departure from the garden-variety two-tiered approach to substantive due process, but it
best accords with the international travel cases which form the jurisprudential foundation
of our review.12
As explained by my colleagues, appellant Maehr did not brief the intermediate
scrutiny standard in a manner adequate to permit resolution on the basis of intermediate
scrutiny in this case. Maehr did not advocate for intermediate scrutiny; instead, his
argument was that international travel is a fundamental right. Appellee Department of
State advocated for rational basis review as the appropriate standard. For reasons
12
This accordance is further suggested by the openness shown by other courts to
intermediate scrutiny for international travel restrictions. See, e.g., Eunique v. Powell,
302 F.3d 971, 978 (9th Cir. 2002) (McKeown, J., concurring) (“Given the importance of
international travel . . . intermediate scrutiny should be the benchmark.”); Malhan v.
Tillerson, 2018 WL 2427121, at *5 (D.N.J. May 30, 2018) (“The Court . . . finds that
both rational basis review and intermediate scrutiny are met” by a passport revocation
statute for non-payment of child support); Risenhoover v. Washington Cty. Cmty. Servs.,
545 F. Supp. 2d 885, 890 (D. Minn. 2008) (“Assuming arguendo that the Government
needs an important reason to interfere with an individual's right to international travel
. . . .”).
27
explained above, I do not agree that either is the proper standard of review in cases
involving international travel. Because neither party advocated for what I consider to be
the proper standard, I must leave the judgment of the district court undisturbed. For
procedural reasons, then, I concur in the judgment.
V
The judgment of the district court is AFFIRMED.
MATHESON, Circuit Judge.
Mr. Maehr argues that international travel is a fundamental right protected by the
Fifth Amendment Due Process Clause and that the revocation of his passport thus must
be reviewed under strict scrutiny. Supreme Court case law constrains us to affirm the
district court’s dismissal of the substantive due process claim.1
I. DISCUSSION
A. Legal Background
Due Process Framework
The Fifth Amendment provides that “[n]o person shall . . . be deprived of life,
liberty, or property, without due process of law.” U.S. Const. amend. V. The substantive
due process doctrine “bars certain government actions regardless of the fairness of the
1
As explained in the per curiam introduction, Judge Phillips joins this separate
opinion, which is thus the opinion of the court on Mr. Maehr’s substantive due process
claim. Judge Lucero concurs only in the judgment affirming dismissal of that claim.
28
procedures used to implement them.” Abdi v. Wray, 942 F.3d 1019, 1027 (10th Cir.
2019) (quotation omitted). The Supreme Court has found substantive due process
violations when (1) government action infringes a “fundamental right” without a
“compelling government interest,” see Washington v. Glucksberg, 521 U.S. 702, 720-21
(1997) (quotation omitted), or (2) government action deprives a person of life, liberty, or
property in a way that “shocks the conscience,” see Cnty. of Sacramento v. Lewis, 523
U.S. 833, 846-47 (1998).
In our circuit, “we apply the fundamental-rights approach when the plaintiff
challenges legislative action, and the shocks-the-conscience approach when the plaintiff
seeks relief for tortious executive action.” Halley v. Huckaby, 902 F.3d 1136, 1153 (10th
Cir. 2018). We apply the fundamental rights approach when, as here, the plaintiff
challenges “the concerted action of several agency employees, undertaken pursuant to
broad government policies,” which is “akin to a challenge to legislative action.” See
Abdi, 942 F.3d at 1027-28 (emphasis omitted).
Under the fundamental rights framework developed in Glucksberg, our analysis
has three steps. First, we “must determine whether a fundamental right is at stake either
because the Supreme Court or the Tenth Circuit has already determined that it exists or
because the right claimed to have been infringed by the government is one that is
objectively among those ‘deeply rooted in this Nation’s history and tradition’ and
‘implicit in the concept of ordered liberty’ such that it is ‘fundamental.’” Abdi, 942 F.3d
at 1028 (quoting Glucksberg, 521 U.S. at 720-21).
29
Second, we “must determine whether the claimed right—fundamental or not—has
been infringed through either total prohibition or ‘direct and substantial’ interference.”
Id. (alteration omitted) (quoting Zablocki v. Redhail, 434 U.S. 374, 387 (1978)).
Third, we apply the appropriate level of scrutiny. See id. “If a legislative
enactment burdens a fundamental right, the infringement must be narrowly tailored to
serve a compelling government interest.” Dias v. City & Cnty. of Denver, 567 F.3d 1169,
1181 (10th Cir. 2009) (citing Glucksberg, 521 U.S. at 721). In other words, we apply
strict scrutiny. See id. “But if an enactment burdens some lesser right, the infringement
is merely required to bear a rational relation to a legitimate government interest.” Id.(citing Glucksberg, 521 U.S. at 728); see also Reno v. Flores, 507 U.S. 292, 305 (1993)
(“The impairment of a lesser interest . . . demands no more than a ‘reasonable fit’
between governmental purpose . . . and the means chosen to advance that purpose.”).
The parties do not dispute that the revocation of a passport substantially interferes
with the ability to travel internationally. We thus must determine whether (1)
international travel is a fundamental right, and (2) the legislation here passes the
applicable level of scrutiny.
Fundamental Rights
a. General background
The Supreme Court has recognized a narrow category of rights that are,
“objectively, deeply rooted in this Nation’s history and tradition and implicit in the
concept of ordered liberty such that neither liberty nor justice would exist if they were
30
sacrificed.” Glucksberg, 521 U.S. at 720-21 (quotations and citations omitted). These
fundamental rights include “the rights to marry, to have children, to direct the education
and upbringing of one’s children, to marital privacy, to use contraception, to bodily
integrity, and to abortion.” Id. at 720 (citations omitted).
When it comes to recognizing new fundamental rights, the Supreme Court has
counseled judicial restraint “because guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended.” See Collins v. City of Harker Heights, 503
U.S. 115, 125 (1992); see also Glucksberg, 521 U.S. at 720. So “identifying a new
fundamental right subject to the protections of substantive due process is often an uphill
battle, as the list of fundamental rights is short.” Seegmiller v. LaVerkin City, 528 F.3d
762, 770 (10th Cir. 2008) (alteration and quotation omitted). The plaintiff bears the
burden of demonstrating a right is fundamental. See id.b. Interstate travel
Long ago, the Supreme Court explained the right of interstate travel is inherent in
the fact that “[t]he people of these United States constitute one nation.” See Crandall v.
Nevada, 73 U.S. 35, 43 (1867). Other rights—for example, to petition the federal
government at the “seat of government” or to access “the courts of justice in the several
States”—would be frustrated if interstate travel were impeded. See id. at 44. In the
modern era, “[t]he right of interstate travel has repeatedly been recognized as a basic
constitutional freedom.” Mem’l Hosp. v. Maricopa Cnty., 415 U.S. 250, 254 (1974).
31
Though this “right finds no explicit mention in the Constitution, . . . freedom to
travel throughout the United States has long been recognized as a basic right under the
Constitution.” Id. at 758; see also Saenz v. Roe, 526 U.S. 489, 498 (1999) (“The word
‘travel’ is not found in the text of the Constitution. Yet the ‘constitutional right to travel
from one State to another’ is firmly embedded in our jurisprudence.” (quoting United
States v. Guest, 383 U.S. 745, 757 (1966)). The right is “fundamental to the concept of
our federal union.” Guest, 383 U.S. at 757. Laws burdening the right of interstate travel
are therefore subject to strict scrutiny. See Shapiro v. Thompson, 394 U.S. 618, 634
(1969), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974); Dunn v.
Blumstein, 405 U.S. 330, 338-39 (1972).2
B. Analysis
Under Supreme Court precedent, (1) the right of international travel is not
fundamental, and (2) the statute here passes rational basis review.
2
As we recognized in Abdi, “the textual source of the right has been the subject of
some debate.” 942 F.3d at 1029. The Supreme Court has found support for the right in
the Fifth and Fourteenth Amendment Due Process Clauses, see Jones v. Helms, 452 U.S.
412, 418 (1981), the Fourteenth Amendment Privileges or Immunities Clause, see
Edwards v. California, 314 U.S. 160, 178 (1941) (Douglas, J., concurring), the Article IV
Privileges and Immunities Clause, see Bray v. Alexandria Women’s Health Clinic, 506
U.S. 263, 277 (1993) (citing Paul v. Virginia, 75 U.S. 168, 180 (1869)), and the Interstate
Commerce Clause, see Guest, 383 U.S. at 759. It also has found an Equal Protection
Clause violation when a durational residence requirement penalized the right of interstate
travel. See Mem’l Hosp., 415 U.S. at 269-70. The textual source of the right of interstate
travel is not material here. For our purposes, it is sufficient that the right is
“fundamental,” Guest, 383 U.S. at 757; Abdi, 942 F.3d at 1028, and restrictions on it are
subject to strict scrutiny, see Dunn, 405 U.S. at 338-39.
32
International Travel Is Not a Fundamental Right
Mr. Maehr has not shown that, within the “binary fundamental-versus-ordinary
categorization” of rights within the substantive due process framework, see Aplt. Br. at
36, international travel falls on the fundamental side. We (a) recount the primary cases
Mr. Maehr relies on, (b) discuss more recent cases from the Supreme Court, and (c)
explain why the Supreme Court’s cases do not support Mr. Maehr’s position.
a. Kent, Aptheker, and Zemel
Mr. Maehr primarily relies on three Supreme Court cases.
First, in Kent v. Dulles, 357 U.S. 116 (1958), the Supreme Court, on statutory
grounds, held Congress had not delegated to the Secretary of State the power to deny
passport applications to alleged communists. See id. at 129-30. The Court noted in dicta
that “[t]he 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,” and “[t]ravel abroad, like
travel within the country, may be necessary for a livelihood.” See id. at 125-26. It
reserved the question of whether it would be constitutional for the Secretary of State to
“withhold passports to citizens because of their beliefs or associations.” See id. at 130.
Second, in Aptheker v. Secretary of State, 378 U.S. 500 (1964), the Court
addressed the constitutional question reserved in Kent. See id. at 505-07. The statute at
issue in Aptheker made it a crime if “any member of a Communist organization which
has registered or has been ordered to register . . . attempts to use or obtain a United States
passport.” Id. at 509. The statute applied “whether or not the member actually knows or
33
believes that he is associated with what is deemed to be a [Communist] organization.”
See id. at 509-14. The Court found the statute
swe[pt] too widely and too indiscriminately across the liberty
guaranteed in the Fifth Amendment. The prohibition against
travel is supported only by a tenuous relationship between the
bare fact of organizational membership and the activity
Congress sought to proscribe. The broad and enveloping
prohibition indiscriminately excludes plainly relevant
considerations such as the individual’s knowledge, activity,
commitment, and purposes in and places for travel. The
section therefore is patently not a regulation narrowly drawn
to prevent the supposed evil, yet here, as elsewhere, precision
must be the touchstone of legislation so affecting basic
freedoms.
Id. at 514 (quotation and citations omitted).
The Court also found the statute could not be applied constitutionally to the
plaintiffs. See id. at 515-17. It noted that “freedom of travel is a constitutional liberty
closely related to rights of free speech and association.” Id. at 517.
Third, in Zemel v. Rusk, 381 U.S. 1 (1965), the Court affirmed the constitutionality
of the Secretary of State’s refusal to validate passports of United States citizens bound for
Cuba for reasons of foreign policy and national security. See id. at 3, 13, 16. The Court
seemed to suggest the right of international travel is comparable to the right of interstate
travel. It observed that travel within the United States can be restricted to a specific area
for the sake of “the safety and welfare of the area or the Nation as a whole. So it is with
international travel.” See id. at 15-16.
34
b. Recent trends
Since 1978, the Supreme Court has been more restrained about constitutional
protection for international travel than it was in Kent, Aptheker, and Zemel.
In Califano v. Aznavorian, 439 U.S. 170 (1978), the Court applied rational basis
review to uphold a statute that prohibited a Social Security recipient from receiving
benefits after spending time abroad, a prohibition which had “an incidental effect on
international travel.” See id. at 171, 177-78. Referring to Kent, Aptheker, and Zemel, the
Court noted, “The freedom to travel abroad has found recognition in at least three
decisions of this Court,” but there is a “crucial difference between the freedom to travel
internationally and the right of interstate travel.” Id. at 175-76. The latter “is virtually
unqualified,” while the “‘right’ of international travel has been considered to be no more
than an aspect of the ‘liberty’ protected by the Due Process Clause of the Fifth
Amendment.” Id. (quotation omitted). The Court held that “legislation which is said to
infringe the freedom to travel abroad is not to be judged by the same standard applied to
laws that penalize the right of interstate travel,” id. at 176-77—that is, strict scrutiny.
In Haig v. Agee, 453 U.S. 280 (1981), the Court reiterated this distinction between
the fundamental right of interstate travel and a lesser right to travel internationally. In
reviewing the Secretary of State’s revocation of a former CIA employee’s passport for
reasons of national security, the Court stated that “the freedom to travel outside the
United States must be distinguished from the right to travel within the United States.” Id.
at 282-89, 306 (1981).
35
In Regan v. Wald, 468 U.S. 222 (1984), the Court upheld a federal regulation
prohibiting travel to Cuba. See id. at 244. Citing Aznavorian and Agee, it observed that
“[i]n [Kent], the constitutional right to travel within the United States and the right to
travel abroad were treated indiscriminately,” but “[t]hat position has been rejected in
subsequent cases.” Id. at 241 n.25.
c. Conclusion
We disagree with Mr. Maehr that the Supreme Court’s cases establish a
fundamental right to travel internationally.
When analyzing Supreme Court cases, we must interpret older ones “in light of
more recent Supreme Court elaboration.” See Independence Inst. v. Williams, 812 F.3d
787, 793 (10th Cir. 2016). The Court’s more recent decisions subordinate the “freedom”
to travel internationally to the “right” of interstate travel. See Agee, 453 U.S. at 306(emphasis omitted). Without direction from the Court to do otherwise, we decline to
place international travel among those rare rights that are “implicit in the concept of
ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”
See Glucksberg, 521 U.S. at 721 (quotations omitted).
Moreover, the Supreme Court’s language that most supports Mr. Maehr’s position
comes from Kent and Aptheker, in which First Amendment rights were at stake. Indeed,
the Supreme Court has suggested that “First Amendment rights . . . controlled in Kent and
Aptheker.” See Regan, 468 U.S. at 241; see also Lutz v. City of York, 899 F.2d 255 (3d
Cir. 1990) (“[I]n Regan . . . , the Court suggested that Kent and Aptheker should be
36
viewed as ‘controlled’ primarily by First Amendment concerns.” (quoting 468 U.S. at
241)). Mr. Maehr has not argued that his First Amendment rights are implicated in this
case.
Other circuits have concluded similarly in cases where a parent has challenged a
passport revocation for failure to make child support payments. After canvassing the
cases discussed above, a Ninth Circuit judge noted that “[a]t an early point in the
development of Supreme Court jurisprudence in this area, the Court seemed to suggest
that restrictions upon travel must be looked upon with a jaded eye,” but the Court has
since “suggested that rational basis review should be applied” to passport revocations that
do not raise First Amendment concerns. See Eunique v. Powell, 302 F.3d 971, 973-74
(9th Cir. 2002).3 Also, the Second Circuit summarily affirmed a district court’s
3
Judge Kleinfeld dissented, finding a fundamental right of international travel
subject to strict scrutiny. See Eunique, 302 F.3d at 979, 981. Judge McKeown
concurred. Though she agreed the Supreme Court “has not . . . declared international
travel to be a fundamental right,” she also said, “considering the nature of the right to
travel internationally, . . . intermediate scrutiny comes the closest to being the proper
standard when First Amendment concerns are not implicated.” Id. at 976.
We have never applied intermediate scrutiny to a substantive due process claim.
Guided by the Supreme Court’s “oft-stated reluctance to expand the doctrine of
substantive due process,” Chavez v. Martinez, 538 U.S. 760, 776 (2003), and the general
principal that “we rely on the parties to frame the issues for decision,” United States v.
Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (quotation omitted), we decline to do so
here.
Mr. Maehr has not argued, either in the district court or on appeal, that we should
apply intermediate scrutiny to the statute at issue. Rather, he seems to reject both a
rational basis and intermediate scrutiny approach. See Aplt. Br. at 45-46. He argues that
the right of international travel is “fundamental” within the substantive due process
framework’s “binary fundamental-versus-ordinary categorization.” Aplt. Br. at 36.
37
determination that a substantive due process challenge to a passport revocation was
subject to rational basis review. See Weinstein v. Albright, No. 00-cv-1193-JGK, 2000
WL 1154310, at *5-6 (S.D.N.Y. Aug. 14, 2000), aff’d, 261 F.3d 127, 133 (2d Cir. 2001).4
* * * *
Although Mr. Maehr has presented colorable arguments about the importance of
international travel as a matter of policy, he has not shown there is a fundamental right of
international travel by citing to cases from “the Supreme Court or the Tenth Circuit.” See
Abdi, 942 F.3d at 1028. In recent years, the Supreme Court has distanced itself from any
implication from Kent, Aptheker, and Zemel that constitutional protection for
international travel is on par with interstate travel. Aznavorian and Haig in particular
counsel against finding a fundamental right to travel internationally. “The doctrine of
judicial self-restraint requires us to exercise the utmost care whenever we are asked to
break new ground” in the area of substantive due process. See Collins, 503 U.S. at 125.
We decline to break new ground today.5
We thus need not address whether restrictions on international travel may be
subject to intermediate scrutiny.
4
A leading constitutional scholar agrees that the Supreme Court’s “[l]ater cases
have made it clear that only rational basis review is used for restrictions on foreign
travel.” Erwin Chemerinsky, Constitutional Law: Principles and Policies 940 (6th ed.
2019).
5
Mr. Maehr also has not convinced us that the right is fundamental based on the
history of Anglo-American law dating back to Magna Carta. We decline to find a
fundamental right from the thinly sourced 800-year history he presents. By comparison,
in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court relied on
38
Rational Basis Review
Because Mr. Maehr has not established a fundamental right of international travel,
we “must consider” whether the government’s actions taken under 26 U.S.C. § 7345 were
constitutional “under the less-exacting standards of rational basis review.” See
Seegmiller, 528 F.3d at 771-72.
Under rational basis review, we will uphold a law “if there is any reasonably
conceivable state of facts that could provide a rational basis for the [infringement].” See
FCC v. Beach Comm’cns, Inc., 508 U.S. 307, 313 (1993). This requires “no more than a
‘reasonable fit’ between governmental purpose . . . and the means chosen to advance that
purpose.” Flores, 507 U.S. at 305. “Our rational basis review is highly deferential
toward the government’s actions,” and “[t]he burden is on the plaintiff to show the
governmental act complained of does not further a legitimate state purpose by rational
means.” Seegmiller, 528 F.3d at 772.
The statute before us, 26 U.S.C. § 7345, passes rational basis review. As Mr.
Maehr concedes, the federal government has a legitimate interest in “conserving or
raising money” through taxes. See Aplt. Br. at 29. Congress’s decision to further this
legitimate interest by providing for revocation of passports for those who have a
“seriously delinquent tax debt,” 26 U.S.C. § 7345(a), is rational. For example, Congress
multiple amicus briefs and detailed historical arguments to determine the meaning of the
Second Amendment. See id. at 576-628.
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could rationally conclude that seriously delinquent taxpayers should be restricted from
leaving the country to prevent the secretion of assets overseas or to increase compliance.6
II. CONCLUSION
We affirm the district court’s dismissal of Mr. Maehr’s substantive due process
claim.
6
Under the statute, among other things, the “unpaid, legally enforceable Federal
tax liability” must exceed $50,000. 26 U.S.C. § 7345(b)(1)(B). We need not address
whether a statute that would revoke the passport of a nontaxpayer with a lower
outstanding unpaid tax liability, or that swept more broadly than this statute in other
ways, would pass rational basis review.
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