dissenting:

I respectfully dissent.

The majority opinion holds that “rational basis review is the proper standard” 1 for testing restrictions on a person’s right to leave the United States. The right to leave one’s country is too important to be subject to abridgment on so permissive a standard. The practical effect of consigning the right to travel to this lowly category of constitutional protection is to grant Congress plenary power to restrict it. In this case, unlike those in which the Supreme Court has upheld restrictions on travel, the government has not offered a foreign policy or national security justification for the restriction, the government has not narrowly tailored the restriction to its purpose, and the apparent purpose of the restriction is to penalize past misconduct rather than to restrict travel as such.

The right to leave is among the most important of all human rights. In the Onto, Socrates explains his decision to stay in prison and accept the death penalty, rather than accept his friends’ arrangement of an escape, by the social contract formed when, though free to leave Athens with his property, he elected to stay and subject himself to its laws:

Magna Carta established that subjects had a right to leave the kingdom and return. 3 The exceptions to the right to travel abroad in Magna Carta were for “those imprisoned or out-lawed” and for “a short period in time of war,” 4 a public policy reason relating to national security.

*947 The Supreme Court held in Kent v. Dulles 5 that the “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.” 6 The Court held that curtailments of that right must be narrowly construed, 7 because the right to travel is so “deeply engrained” in Anglo-American constitutional history. 8 The United States Code speaks of the right to emigrate as “fundamental” in the Jackson-Vanik Amendment, 9 which pressures communist countries to let their people go: “To assure the continued dedication of the United States to fundamental human rights ... products from any nonmarket economy country shall not be eligible to receive nondiscriminatory treatment ... during the period beginning with the date on which the President determines that such country ... denies its citizens the right or opportunity to emigrate.” 10 In Europe in the 1930s and 1940s, for many citizens emigration or not meant life or death.

Ms. Eunique got caught by part of the “deadbeat dads” law, 11 and cannot get a passport, because she has not been paying her ex-husband the $175 per month per child in child support that she agreed to pay when she divorced him. She was then in law school and “had thought that all lawyers earned a lot of money,” but “things have not turned out as I expected.”

She has earned negligible net income from her law practice. She says that a Peruvian-American friend has invited her to go to Peru to meet relatives who have a law firm there, and has suggested that her trip “could open up opportunities for the law firm to hire me when they need legal work in California.” Ms. Eunique is plainly derelict in her duty to pay child support, and was properly denied a passport, if the statute and regulation 12 are constitutional.

The Supreme Court has dealt with three kinds of interference with the right to travel abroad: bans on travel by specific classes of persons; 13 bans on travel to specific countries; 14 and residency requirements for government benefits that incidentally burden persons who travel abroad. 15 The Court has held that incidental burdens on .permitted travel need only have a rational basis, 16 but has subjected *948 restrictions on travel itself to much greater scrutiny. 17 The Court has not formally stated the constitutional test, but its elements are clear. Travel restrictions must be justified by an important or compelling government interest and must be narrowly tailored to that end. 18

Travel bans aimed at specific individuals or classes of individuals must be more narrowly tailored than bans aimed at specific countries. 19

The statute and regulation in this case 20 impose a direct restriction on travel, rather than an incidental burden, and must meet a higher standard of scrutiny than rational basis. They do not restrict travel to a specific country or region for reasons of national security or foreign policy, as in Zemel v. Rusk 21 and Regan v. Wald. 22 Instead, they restrict travel by a specific class of people. The Supreme Court has upheld such a restriction when a person’s activities threaten national security or foreign policy, as in Haig v. Agee, 23 and has suggested that bans on travel by people “participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States” would also be proper. 24 Had Eunique been held in contempt and ordered to stay in the United States and purge it, she might be “trying to escape the toils of the law” by traveling abroad. But the statute and regulation in this case only require that she be a debtor, 25 not a fugitive, and so far as the record shows, that is all she is.

We should reverse the district court under Aptheker v. Secretary of State. 26 The statute in that case denied passports to members of the Communist Party. 27 The Communists lost in district court under rational basis review, but won in the Supreme Court because it applied a more stringent standard of review. 28 Aptheker cannot be distinguished on the ground that it is a First Amendment case, because the Court expressly held that its disposition of the case under the Fifth Amendment made it unnecessary to review the First Amendment contentions. 29 The Court held that the right to travel abroad is “an important aspect of the citizen’s liberty guaranteed in *949 the Due Process Clause ... ,” 30 describing it as one of our “basic freedoms.” 31 It therefore applied to the passport restriction the “familiar and basic principle” that “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” 32 The “the bare fact of organizational membership” in the Communist Party was too “tenuous” in its relationship to national security concerns to justify the breadth of the ban. 33 The total ban “indiscriminately” ignored such “plainly relevant” factors as “the individual’s knowledge, activity, commitment, and purposes in and places for travel.” 34 Accordingly, the Court held that the statute was “unconstitutional on its face” because it swept “too widely and too indiscriminately across the liberty guaranteed in the Fifth Amendment.” 35

The majority tries to dilute Aptheker by characterizing it as quaint, from “an early point in the development of Supreme Court jurisprudence in this area.” 36 But 1964 is not so long ago as all that. More important, a Court of Appeals is bound by Supreme Court decisions, even if it sees them as undermined by subsequent decisions. 37 Aptheker is the law and it controls this case.

The ban on passports for “deadbeat dads” (and “deadbeat moms” as in this case) is less constitutionally defensible than the ban on passports for Communists held unconstitutional in Aptheker. In Ap-theker, there was a genuine national security concern, but the statute swept too broadly, embracing cases where that concern was highly attenuated. Since Magna Carta, national security concerns have justified limiting the right to travel outside the country. For parents in arrears on child support, there is no national security or foreign policy concern.

Zemel v. Rusk does not help the majority, because the restriction on travel to Cuba upheld there was based on the “weightiest considerations of national security.” 38 Also, Zemel did not uphold a prohibition on traveling out of the United States, just one on travel to a particular hostile country. 39 Nor does Califano v. Aznavorian 40 help the majority. The law in that case did not restrict travel at all. It just imposed an incidental burden on travelers by suspending their Supplemen *950 tal Security Income payments while they freely traveled outside of the United States. 41 The Court in Aznavorian explicitly distinguished passport restrictions from the “rational basis” review it gave the suspension of government benefits while abroad, noting that the law at issue “does not limit the availability or validity of passports.” 42 Haig v. Agee is another national security case. 43 It upheld the application of a regulation narrowly tailored to “cases involving likelihood of ‘serious damage’ to national security or foreign policy ...” to a former CIA agent who insisted on exposing CIA agents working abroad undercover to hostile governments. 44 Regan v. Wald is another travel-to-Cuba case, upholding that travel restriction (which allowed Americans freely to travel abroad, just not to that particular hostile country) because of “weighty concerns of foreign policy.” 45 Wald upheld a narrowly tailored travel restriction that supported the government’s important foreign policy and national security interests; 46 it did not recognize a “First Amendment exception” to an until-now non-existent rule of rational basis review for travel restrictions.

Our circuit precedents do not control this case. They sometimes speak of the right to travel as “fundamental,” 47 sometimes not, 48 and none uphold an across-the-board travel ban for other than foreign policy or national security reasons. Freedom to Travel Campaign v. Newcomb simply upheld a restriction on travel to a single country, Cuba 49 — a restriction already upheld by the Supreme Court in Regan v. Wald 50 — not on travel outside the United States. Freedom to Travel expressly avoids adopting a rational basis standard of review by saying “the government need only advance a rational, or at most important, reason.... ” 51

The statute and regulations are more plainly overbroad here than in Aptheker. The majority suggests that “it makes sense to assure that those who do not pay their child support obligations remain within the country.” 52 But the statute and regulation do not require people to remain within the country. Someone fleeing the country to avoid collection attempts may flee to Mexico, Canada, and a number of other countries without a passport. 53 This passport ban is more reasonably seen, in light of the penalties the states are required to impose for non-payment of child support — “withhold[ing] or suspending], or ... restricting] the use driver’s licens *951 es, professional and occupational licenses, and recreational and sporting licenses of individuals owing overdue support” 54 — not as a means of facilitating collection but as a penalty for past nonpayment. After all, taking away a lawyer’s or other licensed professional’s license to practice makes her less able to pay her child support.

The passport ban is also overbroad because, as in Aptheker, it does not take into account individual reasons that might support a passport. 55 For example, travel abroad would, in some businesses (importing) and some lines of professional work, be necessary to earning the money with which the parent would be able to pay child support. And it does not allow for considerations that would bear on the risk of a person traveling abroad to evade child support obligations. Were it tailored to avoiding such flight, then posting of security, owning assets fixed in the United States, or having a job or business in the United States could be considered in determining whether to issue a passport, just as they would be in a bail application.

If Ms. Eunique were a murderer who had done her time, she could get a passport. 56 But a person delinquent in paying child support is punished by denial of a passport. All debtors should pay their debts. Debts for child support have special moral force. But that does not justify tossing away a constitutional liberty so important that it has been a constant of Anglo-American law since Magna Carta, and of civilized thought since Plato. We should reverse. To constitutionally deny so important a liberty as the right to travel, a statute must be more narrowly tailored to protect the important government interest, with no more interference than necessary. 57

.Maj. Op. at 944.

. Plato, Crito, in Plato: Selections 46 (Raphael Demos, ed., Charles Scribner’s Sons 1955).

. Magna Carta, ch. 42, in Samuel E. Thorne et al., The Great Charter 129 (New American Library: Mentor Books, 1966).

. Id.

. 357 U.S. 116 , 78 S.Ct. 1113 , 2 L.Ed.2d 1204 (1957).

. Id. at 125 , 78 S.Ct. 1113 .

. Id. at 129 , 78 S.Ct. 1113 .

. Id. at 126 , 78 S.Ct. 1113 .

. 19 U.S.C. § 2432 (a) (1999).

. Id. See also 19 U.S.C. § 2439 (1999).

. 42 U.S.C. § 652 (k) (1998); 22 C.F.R. § 51.70 (a)(8) (2001).

. Id.% 652(k); 22 C.F.R. § 51.70 (a)(8).

. See Kent, 357 U.S. at 117-18 , 78 S.Ct. 1113 (regulation denying passports to Communists); Aptheker v. Secretary of State, 378 U.S. 500, 501-502 , 84 S.Ct. 1659 , 12 L.Ed.2d 992 (1964) (statute denying passports to Communist Party members); Haig v. Agee, 453 U.S. 280, 281 , 101 S.Ct. 2766 , 69 L.Ed.2d 640 (1981) (regulation denying passports to persons whose activities abroad endanger national security or the foreign policy).

. Zemel v. Rusk, 381 U.S. 1, 3-4 , 85 S.Ct. 1271 , 14 L.Ed.2d 179 (1965) (regulation invalidating passports for travel to Cuba); Regan v. Wald, 468 U.S. 222, 224 , 104 S.Ct. 3026 , 82 L.Ed.2d 171 (1984) (regulation banning most economic transactions in connection with travel to Cuba).

. Califano v. Aznavorian, 439 U.S. 170, 171-72 , 99 S.Ct. 471 , 58 L.Ed.2d 435 (1978) (statute denying Supplement Security Income benefits to persons outside of the United States for certain periods of time).

. Aznavorian, 439 U.S. at 177-78 , 99 S.Ct. 471 .

. See Aptheker, 378 U.S. at 514 , 84 S.Ct. 1659 ; Zemel, 381 U.S. at 14-16 , 85 S.Ct. 1271 ; Agee, 453 U.S. at 306-308 , 101 S.Ct. 2766 ; Wald, 468 U.S. at 240-243 , 104 S.Ct. 3026 .

. See Aptheker, 378 U.S. at 514 , 84 S.Ct. 1659 (quoting Cantwell v. Connecticut, 310 U.S. 296, 307 , 60 S.Ct. 900 , 84 L.Ed. 1213 (1940)).

. Compare Aptheker at 514, 84 S.Ct. 1659 (holding unconstitutional a travel restriction on Communist Party members) and Agee, 453 U.S. at 308 , 101 S.Ct. 2766 (upholding a travel restriction on a former CIA agent who traveled abroad exposing CIA agents to hostile governments) to Zemel, 381 U.S. at 16 , 85 S.Ct. 1271 (upholding restriction on travel to Cuba) and Wald, 468 U.S. at 242 , 104 S.Ct. 3026 (same).

. 42 U.S.C. § 652 (k); 22 C.F.R. § 51.70 (a)(8).

. 381 U.S. at 16 , 85 S.Ct. 1271 .

. 468 U.S. at 242 , 104 S.Ct. 3026 .

. 453 U.S. at 308 , 101 S.Ct. 2766 .

. Id. at 290 , 101 S.Ct. 2766 (1981) (quoting Kent, 357 U.S. at 127 , 78 S.Ct. 1113 ) (internal quotation marks omitted).

. See 42 U.S.C. § 652 (k); 22 C.F.R. § 51.70 (a)(8).

. 378 U.S. at 516 , 84 S.Ct. 1659 .

. Id. at 501-502 , 84 S.Ct. 1659 .

. Id. at 516 , 84 S.Ct. 1659 .

. Id. at 504, n. 4 , 84 S.Ct. 1659 .

. Id. at 500 , 84 S.Ct. 1659 (quoting Kent v. Dulles, 357 U.S. 116, 127 , 78 S.Ct. 1113 , 2 L.Ed.2d 1204 (1958)) (internal quotation marks omitted).

. Id. at 514, 84 S.Ct. 1659 .

. Id. at 508 , 84 S.Ct. 1659 .

. id. at 514 , 84 S.Ct. 1659 .

. Id.

. Id.

. Maj. Op. at 943-44.

. See Agostini v. Felton, 521 U.S. 203, 237 , 117 S.Ct. 1997 , 138 L.Ed.2d 391 (1997) ("We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that '[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.’ ”) (quoting Rodriguez de Quijos v. Shearson/American Express, Inc., 490 U.S. 477, 484 , 109 S.Ct. 1917 , 104 L.Ed.2d 526 (1989)).

. 381 U.S. at 16 , 85 S.Ct. 1271 .

. Id. at 3 , 85 S.Ct. 1271 .

. 439 U.S. 170 , 99 S.Ct. 471 , 58 L.Ed.2d 435 (1978).

. Id. at 171-72 , 99 S.Ct. 471 .

. Id. at 177 , 99 S.Ct. 471 .

. 453 U.S. at 307 , 101 S.Ct. 2766 .

. Id. at 306-308 , 101 S.Ct. 2766 .

. 468 U.S. at 242 , 104 S.Ct. 3026 .

. Id. at 242-43 , 104 S.Ct. 3026 .

. In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1309 (9th Cir.1982).

. Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1439 (9th Cir.1996).

.Id.

. 468 U.S. at 244 , 104 S.Ct. 3026 .

. 82 F.3d at 1439 .

. Maj. Op. at 945.

. Generally, a citizen may not “depart from or enter” the United States unless she "bears a valid United States passport,” 8 U.S.C. § 1185 (b) (1997), 22 C.F.R. § 53.1 (2001), but the President may specify exceptions, 8 U.S.C. § 1155 . The main exception is for travel "between the United States and any country, territory, or island adjacent thereto in North, South, or Central America excluding Cuba ...,” 22 C.F.R. § 53.2 (b) (2001), with "United States” meaning any territory subject to the United States’ jurisdiction, 22 C.F.R. § 50.1 (a) (2001).

. 42 U.S.C. § 666 (a)(16) (1998).

. See 378 U.S. at 510-11 , 84 S.Ct. 1659 .

. See 22 C.F.R. §§ 51.70 , 51.71 (2001).

.See Aptheker, 378 U.S. at 508 , 84 S.Ct. 1659 .