In his amended complaint, Zemel added to his constitutional attack on the 1926 and 1952 Acts a prayer that the Secretary and the Attorney General be enjoined from enforcing them.

It distinguished from Kent v. Dulles because here it found an administrative practice sufficiently substantial and consistent to warrant the conclusion that Congress had implicitly approved it.

Zemel's assertion that the Secretary's refusal to validate his passport for travel to Cuba denied him rights guaranteed by the First Amendment was different from that which was raised in Kent v. Dulles and Aptheker v. Secretary of State because the refusal to validate his passport did not result from any expression or association on his part; he was not being forced to choose between membership in an organization and freedom to travel.

Although Zemel's contention that a First Amendment right was involved in the Secretary's refusal to validate passports for Cuba because it acted as an inhibition to the free the flow of information concerning that country, it was rather a factor to be considered in determining whether appellant was denied due process of law, under the Fifth Amendment citing again Kent v. Dulles and Aptheker v. Secretary of State.

The Court also rejected Zemel's challenge that the 1926 Act did not contain sufficiently definite standards for the formulation of travel controls by the Executive.

Executive authority over matters of foreign affairs must of necessity be painted with a brush broader than that customarily wielded in domestic areas because of the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature, citing United States v. Curtiss-Wright Corp., 299 U.S. 304.

Finally, the Court refused to enter an order enjoining the Secretary and the Attorney General from interfering with such travel.

In 1926 Congress reenacted, in virtually identical terms, the 1856 statute, the sole purpose of which was to centralize passport issuance in the hands of the Secretary of State in order to overcome the abuses and chaos caused by the fact that, prior to the passage of the statute, numerous unauthorized persons issued passports and travel documents.

Justice Goldberg felt that the statute was simply inapplicable to area restrictions because it could not be presumed that Congress, without focusing upon the complex problems involved, resolved them by adopting a broad and sweeping statute which, in the Court's view, conferred unlimited discretion upon the Executive, and which made no distinctions reconciling the rights of the citizen to travel with the government's legitimate needs.