Case Summary and Outcome

The U.S. Supreme Court overturned a District Court’s decision that a temporary visa should be granted to a scholar visiting for an academic debate on the grounds that this violated the American professors’ rights of access to free speech.  Ernest Mandel, a “revolutionary Marxist” was invited to attend academic conferences but was denied a visa by the U.S. Attorney General under the Immigration and Nationality Act of 1952; the American professors sued, arguing that the denial of entry inhibited their right to access information. The Court ruled that given Congressional plenary power to regulate immigration and the history of its use of this power, the INA and the provisions therein were constitutional; the Court declined to rule on the First Amendment implications of this case.

Facts

Ernest Mandel (plaintiff) was a Belgium-based German author, academic, and political activist who described himself as a “revolutionary Marxist”, but was not a member of the Communist Party. After applying for a non-immigrant visa to attend several academic conferences in the United States, Mandel was informed that he was adjudged excludable under Section 212(a)(28) of the Immigration and Nationality Act of 1952, which excluded various groups of aliens including “anarchists,” “those who advocate or teach opposition to all organized government,” those who advocate or publish “the economic, international, and governmental doctrines of world communism” and “members of any branch of the Communist Party.” Accordingly, Mandel’s visa was denied.

Mandel (along with several of the academics in the U.S. who had invited him to attend conferences) requested a waiver of the denial, as provided by Section 212 of the INA. The Attorney General refused to grant the waiver because the Attorney General believed Mandel had violated the terms of his visas during earlier trips to the United States.

Mandel’s co-Plaintiffs, all university professors, brought action against the Attorney General on the grounds that the failure to waive Mandel’s visa denial amounted to a suppression of their First Amendment rights because the denial prevented a “free and open academic exchange.” They also alleged that, because the INA allowed “rightists” and not “leftists” to enter the country, it amounted to a violation of equal protection as incorporated to address the Federal Government through the Due Process clause of the Fifth Amendment.

A three-judge District panel found that, although as a foreigner Mandel had no First Amendment rights, the professors had a right to engage him in debate, and the government was accordingly enjoined from interpreting the relevant Sections of the INS in a manner that would exclude Mandel from the United States. The Government appealed.

Decision Overview

In a 6-3 decision, the U.S. Supreme Court upheld the Attorney General’s denial of a waiver for Mandel under Section 212(a)(28) of the INA. Justice Blackmun wrote the majority opinion, while Justices Douglas and Marshall filed dissenting opinions. Justice Brennan joined justice Marshall’s dissenting opinion.

The Court found that, because it was indisputable that the First Amendment did not accord any rights to Mandel (a non-U.S. citizen residing in Belgium), the sole issue before the Court was whether the First Amendment conferred upon the professors the ability to determine that Mandel could enter the country because they wished to hear him speak.

The Court declined to balance the professors’ interest in access to information against the governmental regulation, and instead focused on the history of Congressional acts restricting immigration for various reasons, some ideological. The Court then emphasized the broad plenary power granted to the Congress by the U.S. Constitution, and concluded that because Congress acted within its authority in passing the INA, and because the INA had lawfully delegated a conditional power to the Executive (the Attorney General’s “waiver” power), the Attorney General had acted in accordance with Congress’ plenary power in denying Mandel’s visa and the First Amendment rights of the professors could not displace the Congress’s power to regulate the entry of foreign persons into the U. S. As such, the Court did not conduct a First Amendment analysis.

Justice Douglas dissented, arguing that the Government had not shown that Mandel presented any clear threat to national security, and as such, the decision to bar him from entry to the U.S. amounted to an act of censorship.

Justices Brennan and Marshall also dissented, emphasizing the Court’s longstanding protection of the “right to receive information,” and arguing that Government did not have power – even through the plenary power – to interrupt free discussion.