Standing for passport holders (and maybe owners)

|The Volokh Conspiracy |

Will Baude raises the question of standing in Zivitofsky, one I had addressed a while back. While I was originally skeptical, I now think the case for standing is fairly strong, for two reasons.

One can have standing to pursue a claim that is motivated by political concerns—see most constitutional litigation—so long as these concerns coincide with a direct, cognizable interest. My doubt about standing stemmed from the passport being described as government property. I overemphasized the importance of ownership.

For the passport it is not merely government property: it is government property intended for the possession and custodianship of the passport-holder, or "bearer" as the passport refers to him. Certainly one does not have to own property to have a judicially cognizable interest in it. Renters, for example, have standing to challenge searches. The passport-holder is a bailee, and one with a particularly tight nexus with his bailment—it is created for his use and possession. This should be enough to satisfy standing.

Moreover, the notion that the passport is government property may itself be erroneous, as has been pointed out to me in correspondence from passport attorney Stephen Krueger. According to Krueger, the State Department repeatedly suggested to Congress in the 50s and 60s that passports be designated government property. Bills to that effect died in committee. Eventually, Foggy Bottom took the initiative. In 1966, it published a new regulation, 22 C.F.R. § 51.9, claiming that passports are government property. The State Department cannot take private property without legislation, or against the will of Congress. I cannot vouch for Krueger's account, but it suggests that the government-property issue is itself an on-the-merits separation of powers question, with a nice takings wrinkle.

To be sure, few federal courts of appeals have said that passports are government property, but none before the 1966 regulation, the validity of which was apparently not in question in these case. One of these case cites one pre-'66 source, an international law treatise, which I have not examined but seems to be discussing U.K. practice. See Lynd v. Rusk, 389 F.2d 940, 948 (D.C. Cir. 1967) (suggesting that passports have "consistently" been regarded as government property);
United States v. Falley, 489 F.2d 33, 41 (2d Cir. 1973) (simply citing the passport regulation).