Eunique

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…

Opinion by Judge FERNANDEZ; Dissent by Judge KLEINFELD

Eudene Eunique was denied a passport because she was severely in arrears on her child support payments. She brought an action for declaratory and injunctive relief on the theory that the statute and regulation authorizing that denial were unconstitutional. See 42 U.S.C. § 652 (k); 22 C.F.R. § 51.70 (a)(8). The district granted summary judgment against her, and she appealed. We affirm.

BACKGROUND

When Eunique’s marriage was dissolved, her husband was awarded custody of the children, and she was ordered to pay child support. She failed to pay the ordered amounts, and by 1998 she was in arrears in an amount over $20,000. Thereafter, the arrearage continued to grow. 1 Despite the fact that she is unable or unwilling to pay her child support obligations, she desires to travel internationally for both business and pleasure, including visiting a sister in Mexico.

Eunique applied for a passport, but by that time California had certified to the Secretary of Health and Human Services that she owed “arrearages of child support in an amount exceeding $5,000.” 42 U.S.C. § 652 (k). Congress has provided federal funds to help the…