INTERNATIONAL TRAVEL: PRIVILEGE OR CONSTITUTIONAL RIGHT?

Freedom of movement is a fundamental constitutional right. In Paul v. Virginia, the court defined freedom of movement as the right of free ingress into other States and egress from them. Throughout most of U.S. history, a passport was not a legal requirement for leaving the United States . From 1861 to 1966, the Department of State required the execution of an Oath of Allegiance as a prerequisite to issuing a passport. Until 1966, The Passport Regulations Act mandated that each citizen's application for a passport was required to contain the applicant's affirmation of allegiance to the United States. It was not until 1952 that possessing a valid passport was generally made a legal requirement for leaving or entering the United States. This legal requirement remains today. See Woodward v. Rogers , 344 F. Supp. 974 (D.D.C. 1972). A passport is a control instrument for exiting and entering the country.

However, the exit procedure from the U.S. is very vulnerable and in need of reform. The lack of border controls at U.S. exit points creates multiple opportunities for abusing the system.

Border control on the exit from a country could help to prevent human trafficking, smuggling, and other forms of illegal activity. It would allow authorities to identify and track individuals who may threaten national security or have outstanding warrants for arrest. Most importantly, border control would help to ensure that a parent of a minor child does not take them overseas without the knowledge of the other parent or in violation of a court order. Besides this, border control upon exit from the country will not let people leave with unpaid debts such as child support, taxes, or fines. This is significant because these debts can impact other individuals and harm the economy. Placing border guards at points of exit will force liable parents to perform their obligations, such as paying their child support. Border control upon exit from the country is necessary to maintain the safety and security of both the country and its people, as well as to ensure that laws and regulations are being followed and court orders are being enforced.

Per the Passport Act of 1926, the U.S. Department of State may deny or revoke passports. In 1941 Congress enacted legislation extending the wartime passport requirement to include national emergencies. The 1941 statute was replaced in 1952 when Congress passed the Immigration and Nationality Act. The FTO Passport Revocation Act of 2015 amended the 1926 Passport Act and authorized the U.S. Department of State to refuse to issue a passport to some categories of U.S. citizens.

The most common reasons for the Department of State to refuse to issue a passport are for the purposes of foreign policy or national security, criminal conduct, or in cases where the applicant is seeking to escape the toils of the law. The U.S. government, in exercising discretion, can directly restrict the international travel of Americans who solely have U.S. citizenship. However, this measure alone does not stop unauthorized departure from the country because it is rare for a passport to be revoked, and many people who are not authorized to leave the country, still have valid U.S. passports. Additionally, individuals who have two or more passports from different countries can use their non-U.S. passports to leave the country illegally even if their U.S. passport has been revoked.