U.S. Supreme Court Kleindienst v. Mandel, 408
U.S. 753 (1972) Kleindienst v. Mandel No. 71-16 Argued April 18, 1972 Decided June 29, 1972 408
U.S. 753 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW
YORK Syllabus This action was brought to compel the Attorney General to grant
a temporary nonimmigrant visa to a Belgian journalist and Marxian
theoretician whom the American plaintiff appellees had invited to
participate in academic conferences and discussions in this
country. The alien had been found ineligible for admission under §§
212(a)(28)(D) and (G)(v) of the Immigration and Nationality Act of
1952, barring those who advocate or publish "the economic,
international, and governmental doctrines of world communism." The
Attorney General had declined to waive ineligibility as he has the
power to do under § 212(d) of the Act, basing his decision on
unscheduled activities engaged in by the alien on a previous visit
to the United States, when a waiver was granted. A three-judge
District Court, although holding that the alien had no personal
entry right, concluded that citizens of this country had a First
Amendment right to have him enter and to hear him, and enjoined
enforcement of § 212 as to this alien. Held: In the exercise of Congress' plenary power to
exclude aliens or prescribe the conditions for their entry into
this country, Congress in § 212(a)(28) of the Act has delegated
conditional exercise of this power to the Executive Branch. When,
as in this case, the Attorney General decides for a legitimate and bona fide reason not to waive the statutory exclusion of
an alien, courts will not look behind his decision or weigh it
against the First Amendment interests of those who would personally
communicate with the alien. Pp. 408 U. S.
761 -770. 325 F.
Supp. 620 , reversed.

															BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, POWELL, and REHNQUIST, JJ.,
joined. DOUGLAS, J., filed a dissenting opinion, post, p. 408 U. S. 770 .
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined, post, p. 408 U. S.
774 . Page 408 U. S. 754 MR. JUSTICE BLACKMUN delivered the opinion of the Court.

															The appellees have framed the issue here as follows:

															"Does appellants' action in refusing to allow an alien scholar
to enter the country to attend academic meetings violate the First
Amendment rights of American scholars and students who had invited
him? [ Footnote 1 ]"

															Expressed in statutory terms, the question is whether §§
212(a)(28)(D) and (G)(v) and § 212(d)(3)(A) of the Immigration and
Nationality Act of 1952, 66 Stat. 182, 8 U.S.C. §§ 1182(a)(28)(D)
and (G)(v) and § 1182(d)(3)(A), providing that certain aliens
"shall be ineligible to receive visas and shall be excluded from
admission into the United States" unless the Attorney General, in
his discretion, upon recommendation by the Secretary of State or a
consular officer, waives inadmissibility and approves temporary
admission, are unconstitutional as applied here in that they
deprive American citizens of freedom of speech guaranteed by the
First Amendment. Page 408 U. S. 755 The challenged provisions of the statute are:

															"Section 212(a). Except as otherwise provided in this Act, the
following classes of aliens shall be ineligible to receive visas
and shall be excluded from admission into the United States:"

															" * * * *" "(28) Aliens who are, or at any time have been, members of any
of the following classes: "

															" * * * *" "(D) Aliens not within any of the other provisions of this
paragraph who advocate the economic, international, and
governmental doctrines of world communism or the establishment in
the United States of a totalitarian dictatorship. . . ."

															" * * * *" "(G) Aliens who write or publish . . . (v) the economic,
international, and governmental doctrines of world communism or the
establishment in the United States of a totalitarian dictatorship;
. . ."

															"(d)"

															" * * * *" "(3) Except as provided in this subsection, an alien(A) who is
applying for a nonimmigrant visa and is known or believed by the
consular officer to be ineligible for such visa under one or more
of the paragraphs enumerated in subsection (a) . . . may, after
approval by the Attorney General of a recommendation by the
Secretary of State or by the consular officer that the alien be
admitted temporarily despite his inadmissibility, be granted such a
visa and may be admitted into the United States temporarily as a
nonimmigrant in the discretion of the Attorney General. . . ."

															Section 212(d)(6) provides that the Attorney General

															shall make a detailed report to the Congress in any Page 408 U. S. 756 case in which he exercises his authority under paragraph (3) of
this subjection on behalf of any alien excludable under paragraphs
(9), (10), and (28). . . . I Ernest E. Mandel resides in Brussels, Belgium, and is a Belgian
citizen. He is a professional journalist and is editor-in-chief of
the Belgian Left Socialist weekly La Gauche. He is author of a
two-volume work entitled Marxist Economic Theory published in 1969.
He asserted in his visa applications that he is not a member of the
Communist Party. He has described himself, however, as "a
revolutionary Marxist." [ Footnote
2 ] He does not dispute, see 325 F.
Supp. 620 , 624, that he advocates the economic, governmental,
and international doctrines of world communism. [ Footnote 3 ]

															Mandel was admitted to the United States temporarily in 1962 and
again in 1968. On the first visit, he came as a working journalist.
On the second, he accepted invitations to speak at a number of
universities and colleges. On each occasion, although apparently he
was not then aware of it, his admission followed a finding of
ineligibility under § 212(a)(28), and the Attorney General's
exercise of discretion to admit him temporarily, on recommendation
of the Secretary of State, as § 212(d)(3)(A) permits.

															On September 8, 1969, Mandel applied to the American Consul in
Brussels for a nonimmigrant visa to enter the United States in
October for a six-day period, during which he would participate in
a conference on Page 408 U. S. 757 Technology and the Third World at Stanford University. [ Footnote 4 ] He had been invited to
Stanford by the Graduate Student Association there. The invitation
stated that John Kenneth Galbraith would present the keynote
address and that Mandel would be expected to participate in an
ensuing panel discussion and to give a major address the following
day. The University, through the office of its president, "heartily
endorse[d]" the invitation. When Mandel's intended visit became
known, additional invitations for lectures and conference
participations came to him from members of the faculties at
Princeton, Amherst, Columbia, and Vassar, from groups in Cambridge,
Massachusetts, and New York City, and from others. One conference,
to be in New York City, was sponsored jointly by the Bertrand
Russell Peace Foundation and the Socialist Scholars Conference;
Mandel's assigned subject there was "Revolutionary Strategy in
Imperialist Countries." Mandel then filed a second visa application
proposing a more extensive itinerary and a stay of greater
duration.

															On October 23 the Consul at Brussels informed Mandel orally that
his application of September 8 had been refused. This was confirmed
in writing on October 30. The Consul's letter advised him of the
finding of inadmissibility under § 212(a)(28) in 1962, the waivers
in that year and in 1968, and the current denial of a waiver. It
said, however, that another request for waiver was being forwarded
to Washington in connection with Mandel's second application for a
visa. The Department of State, by a letter dated November 6 Page 408 U. S. 758 from its Bureau of Security and Consular Affairs to Mandel's New
York attorney, asserted that the earlier waivers had been granted
on condition that Mandel conform to his itinerary and limit his
activities to the stated purposes of his trip, but that, on his
1968 visit, he had engaged in activities beyond the stated
purposes. [ Footnote 5 ] For this
reason, it was said, a waiver "was Page 408 U. S. 759 not sought in connection with his September visa application."
The Department went on to say, however, that it had now learned
that Mandel might not have been aware in 1968 of the conditions and
limitations attached to his visa issuance, and that, in view of
this and upon his assurances that he would conform to his stated
itinerary and purposes, the Department was reconsidering his case.
On December 1, the Consul at Brussels informed Mandel that his visa
had been refused.

															The Department of State in fact, had recommended to the Attorney
General that Mandel's ineligibility be waived with respect to his
October visa application. The Immigration and Naturalization
Service, however, acting on behalf of the Attorney General, see 28 U.S.C. § 510, in a letter dated February 13, 1970,
to New York counsel stated that it had determined that Mandel's
1968 activities while in the United States

															"went far beyond the stated purposes of his trip, on the basis
of which his admission had been authorized and represented a
flagrant abuse of the opportunities afforded him to express his
views in this country."

															The letter concluded that favorable exercise of discretion,
provided for under the Act, was not warranted and that Mandel's
temporary admission was not authorized.

															Mandel's address to the New York meeting was then delivered by
transatlantic telephone.

															In March, Mandel and six of the other appellees instituted the
present action against the Attorney General and the Secretary of
State. The two remaining appellees soon came into the lawsuit by an
amendment to the complaint. All the appellees who joined Mandel in
this action are United States citizens and are university
professors in various fields of the social sciences. They are
persons who invited Mandel to speak at universities and other
forums in the United States or who expected to participate in
colloquia with him so that, Page 408 U. S. 760 as the complaint alleged, "they may hear his views and engage
him in a free and open academic exchange."

															Plaintiff appellees claim that the statute are unconstitutional
on their face and as applied in that they deprive the American
plaintiffs of their First and Fifth Amendment rights. Specifically,
these plaintiffs claim that the statutes prevent them from hearing
and meeting with Mandel in person for discussions, in contravention
of the First Amendment; that § 212(a)(28) denies them equal
protection by permitting entry of "rightists," but not "leftists,"
and that the same section deprives them of procedural due process;
that § 212(d)(3)(A) is an unconstitutional delegation of
congressional power to the Attorney General because of its broad
terms, lack of standards, and lack of prescribed procedures; and
that application of the statutes to Mandel was "arbitrary and
capricious" because there was no basis in fact for concluding that
he was ineligible, and no rational reason or basis in fact, for
denying him a waiver once he was determined ineligible. Declaratory
and injunctive relief was sought.

															A three-judge district court was duly convened. The case was
tried on the pleadings and affidavits with exhibits. Two judges
held that, although Mandel had no personal right to enter the
United States, citizens of this country have a First Amendment
right to have him enter and to hear him explain and seek to defend
his views. The court then entered a declaratory judgment that §
212(a)(28) and § 212(d)(3)(A) were invalid and void insofar a they
had been or might be invoked by the defendants to find Mandel
ineligible for admission. The defendants were enjoined from
implementing and enforcing those statutes so as to deny Mandel
admission as a nonimmigrant visitor. 325 F.
Supp. 620 (EDNY 1971). Judge Bartels dissented. Id. at
637. Probable jurisdiction was noted. 404 U.S. 1013 (1972). Page 408 U. S. 761 Until 1875, alien migration to the United States was
unrestricted. The Act of March 3, 1875, 18 Stat. 477, barred
convicts and prostitutes. Seven years later, Congress passed the
first general immigration statute. Act of Aug. 3 1882, 22 Stat.
214. Other legislation followed. A general revision of the
immigration laws was effected by the Act of Mar. 3, 1903, 32 Stat.
1213. Section 2 of that Act made ineligible for admission

															"anarchists, or persons who believe in or advocate the overthrow
by force or violence of the Government of the United States or of
all government or of all forms of law."

															By the Act of Oct. 16, 1918, 40 Stat. 1012, Congress expanded
the provisions for the exclusion of subversive aliens. Title II of
the Alien Registration Act of 1940, 54 Stat. 671, amended the 1918
Act to bar aliens who, at any time, had advocated or were members
of or affiliated with organizations that advocated violent
overthrow of the United States Government.

															In the years that followed, after extensive investigation and
numerous reports by congressional committees, see Communist
Party v. Subversive Activities Control Board, 367 U. S.
1 , 367 U. S. 94 n.
37 (1961), Congress passed the Internal Security Act of 1950, 64
Stat. 987. This Act dispensed with the requirement of the 1940 Act
of a finding in each case, with respect to members of the Communist
Party, that the party did, in fact, advocate violent overthrow of
the Government. These provisions were carried forward into the
Immigration and Nationality Act of 1952.

															We thus have almost continuous attention on the part of Congress
since 1875 to the problems of immigration and of excludability of
certain defined classes of aliens. The pattern generally has been
one of increasing Page 408 U. S. 762 control, with particular attention, for almost 70 years now,
first to anarchists and then to those with communist affiliation or
views. III It is clear that Mandel personally, as an unadmitted and
nonresident alien, had no constitutional right of entry to this
country as a nonimmigrant or otherwise. United States ex rel.
Turner v. Williams, 194 U. S. 279 , 194 U. S. 292 (1904); United States ex rel . Knauff v. Shaughnessy, 338 U. S. 537 , 338 U. S. 542 (1950); Galvan v. Press, 347 U. S. 522 , 347 U. S.
530 -532 (194); see Harisiades v. Shaughnessy, 342 U. S. 580 , 342 U. S. 592 (1952).

															The appellees concede this. Brief for Appellees 33; Tr. of Oral
Arg. 28. Indeed, the American appellees assert that "they sue to
enforce their rights, individually and as members of the American
public, and assert none on the part of the invited alien." Brief
for Appellees 14. "Dr. Mandel is, in a sense, made a plaintiff
because he is symbolic of the problem." Tr. of Oral Arg. 22.

															The case, therefore, comes down to the narrow issue whether the
First Amendment confers upon the appellee professors, because they
wish to hear, speak, and debate with Mandel in person, the ability
to determine that Mandel should be permitted to enter the country,
or, in other words, to compel the Attorney General to allow
Mandel's admission. IV In a variety of contexts, this Court has referred to a First
Amendment right to "receive information and ideas":

															"It is now well established that the Constitution protects the
right to receive information and ideas. 'This freedom [of speech
and press] . . . necessarily Page 408 U. S. 763 protects the right to receive. . . .' Martin v. City of
Struthers, 319 U. S. 141 , 319 U. S.
143 (1943). . . ." Stanley v. Georgia, 394 U. S. 557 , 394 U. S. 564 (1969).

															This was one basis for the decision in Thomas v.
Collins, 323 U. S. 516 (1945). The Court there held that a labor organizer's right to
speak and the rights of workers "to hear what he had to say," id. at 323 U. S. 534 ,
were both abridged by a state law requiring organizers to register
before soliciting union membership. In a very different situation,
MR. JUSTICE WHITE, speaking for a unanimous Court upholding the
FCC's "fairness doctrine" in Red Lion Broadcasting Co. v.
FCC, 395 U. S. 367 , 395 U. S.
386 -390 (1969), said:

															"It is the purpose of the First Amendment to preserve an
uninhibited marketplace of ideas in which truth will ultimately
prevail. . . . It is the right of the public to receive suitable
access to social, political, esthetic, moral, and other ideas and
experiences which is crucial here. That right may not
constitutionally be abridged either by Congress or by the FCC." Id. at 395 U. S. 390 .
And in Lamont v. Postmaster General, 381 U.
S. 301 (1965), the Court held that a statute permitting
the Government to hold "communist political propaganda" arriving in
the mails from abroad unless the addressee affirmatively requested
in writing that it be delivered to him placed an unjustifiable
burden on the addressee's First Amendment right. This Court has
recognized that this right is "nowhere more vital" than in our
schools and universities. Shelton v. Tucker, 364 U.
S. 479 , 364 U. S. 487 (1960); Sweezy v. New Hampshire, 354 U.
S. 234 , 354 U. S. 250 (1957) (plurality opinion); Keyishian v. Board of Regents, 385 U. S. 589 , 385 U. S. 603 (1967). See Epperson v. Arkansas, 393 U. S.
97 (1968). Page 408 U. S. 764 In the present case, the District Court majority held:

															"The concern of the First Amendment is not with a nonresident
alien's individual and personal interest in entering and being
heard, but with the right of the citizens of the country to have
the alien enter and to hear him explain and seek to defend his
views; that, as Garrison [v. Louisiana, 379 U. S. 64 (1964),] and Red Lion observe, is of the essence of
self-government."

															325 F. Supp. at 631. The Government disputes this conclusion on
two grounds. First, it argue that exclusion of Mandel involves no
restriction on First Amendment rights at all, since what is
restricted is "only action -- the action of the alien in coming
into this country." Brief for Appellants 29. Principal reliance is
placed on Zemel v. Rusk, 381 U. S. 1 (1965),
where the Government's refusal to validate an American passport for
travel to Cuba was upheld. The rights asserted there were those of
the passport applicant himself. The Court held that his right to
travel and his asserted ancillary right to inform himself about
Cuba did not outweigh substantial "foreign policy considerations
affecting all citizens" that, with the backdrop of the Cuban
missile crisis, were characterized as the "weightiest
considerations of national security." Id. at 381 U. S. 13 , 381 U. S. 16 . The
rights asserted here, in some contrast, are those of American
academics who have invited Mandel to participate with them in
colloquia, debates, and discussion in the United States. In light
of the Court's previous decisions concerning the "right to receive
information," we cannot realistically say that the problem facing
us disappears entirely or is nonexistent because the mode of
regulation bears directly on physical movement. In Thomas, the registration requirement, on its Page 408 U. S. 765 face, concerned only action. In Lamont, too, the face
of the regulation dealt only with the Government's undisputed power
to control physical entry of mail into the country. See United
States v. Robel, 389 U. S. 258 , 389 U. S. 263 (1967).

															The Government also suggests that the First Amendment is
inapplicable because appellees have free access to Mandel's ideas
through his books and speeches, and because "technological
developments," such as tapes or telephone hook-ups, readily
supplant his physical presence. This argument overlooks what may be
particular qualities inherent in sustained, face-to-face debate,
discussion and questioning. While alternative means of access to
Mandel's ideas might be a relevant factor were we called upon to
balance First Amendment rights against governmental regulatory
interests -- a balance we find unnecessary here in light of the
discussion that follows in Part V -- we are loath to hold on this
record that existence of other alternatives extinguishes altogether
any constitutional interest on the part of the appellees in this
particular form of access. V Recognition that First Amendment rights are implicated, however,
is not dispositive of our inquiry here. In accord with ancient
principles of the international law of nation-states, the Court in The Chinese Exclusion Case, 130 U.
S. 581 , 130 U. S. 609 (1889), and in Fong Yue Ting v. United States, 149 U. S. 698 (1893), held broadly, as the Government describes it, Brief for
Appellants 20, that the power to exclude aliens is

															"inherent in sovereignty, necessary for maintaining normal
international relations and defending the country against foreign
encroachments and dangers -- a power to be exercised exclusively by
the political branches of government. . . ."

															Since that time, the Court's general reaffirmations of this
principle have Page 408 U. S. 766 been legion. [ Footnote 6 ]
The Court, without exception, has sustained Congress' "plenary
power to make rules for the admission of aliens and to exclude
those who possess those characteristics which Congress has
forbidden." Boutilier v. Immigration and Naturalization
Service, 387 U. S. 118 , 387 U. S. 123 (1967). "[O]ver no conceivable subject is the legislative power of
Congress more complete than it is over" the admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U.
S. 320 , 214 U. S. 339 (1909). In Lem Moon Sing v. United States, 158 U.
S. 538 , 158 U. S. 547 (1895), the first Mr. Justice Harlan said:

															"The power of Congress to exclude aliens altogether from the
United States, or to prescribe the terms and conditions upon which
they may come to this country, and to have its declared policy in
that regard enforced exclusively through executive officers,
without judicial intervention, is settled by our previous
adjudications."

															Mr. Justice Frankfurter ably articulated this history in Galvan v. Press, 347 U. S. 522 (1954), a deportation case, and we can do no better. After
suggesting, at 347 U. S. 530 ,
that "much could be said for the view" that due process places some
limitations on congressional power in this area "were we writing on
a clean slate," he continued:

															"But the slate is not clean. As to the extent of the power of
Congress under review, there is not merely 'a page of history'. . .
but a whole volume. Policies pertaining to the entry of aliens and
their right to remain here are peculiarly concerned with Page 408 U. S. 767 the political conduct of government. In the enforcement of these
policies, the Executive Branch of the Government must respect the
procedural safeguards of due process. . . . But that the
formulation of these policies is entrusted exclusively to Congress
has become about as firmly embedded in the legislative and judicial
tissues of our body politic as any aspect of our government. . .
."

															"We are not prepared to deem ourselves wiser or more sensitive
to human rights than our predecessors, especially those who have
been most zealous in protecting civil liberties under the
Constitution, and must therefore under our constitutional system
recognize congressional power in dealing with aliens. . . ." Id. at 347 U. S.
531 -532.

															We are not inclined in the present context to reconsider this
line of cases. Indeed, the appellees, in contrast to the amicus, do not ask that we do so. The appellees recognize
the force of these many precedents. In seeking to sustain the
decision below, they concede that Congress could enact a blanket
prohibition against entry of all aliens falling into the class
defined by §§ 212(a)(28)(D) and (G)(v), and that First Amendment
rights could not override that decision. Brief for Appellees 16.
But they contend that, by providing a waiver procedure, Congress
clearly intended that persons ineligible under the broad provision
of the section would be temporarily admitted when appropriate "for
humane reasons and for reasons of public interest." S.Rep. No.
1137, 82d Cong., 2d Sess., 12 (1952). They argue that the
Executive's implementation of this congressional mandate through
decision whether to grant a waiver in each individual case must be
limited by the First Amendment rights of persons like appellees.
Specifically, their position is that the First Amendment rights
must prevail, at least where the Government Page 408 U. S. 768 advances no justification for failing to grant a waiver. They
point to the fact that waivers have been granted in the vast
majority of cases. [ Footnote
7 ]

															Appellees' First Amendment argument would prove too much. In
almost every instance of an alien excludable under § 212(a)(28),
there are probably those who would wish to meet and speak with him.
The ideas of most such aliens might not be so influential as those
of Mandel, nor his American audience so numerous, nor the planned
discussion forums so impressive. But the First Amendment does not
protect only the articulate, the well known, and the popular. Were
we to endorse the proposition that governmental power to withhold a
waiver must yield whenever a bona fide claim is made that
American citizens wish to meet and talk with an alien excludable
under § 212(a)(28), one of two unsatisfactory results would
necessarily ensue. Either every claim would prevail, in which case
the plenary discretionary authority Congress granted the Executive
becomes a nullity, or Page 408 U. S. 769 courts in each case would be required to weigh the strength of
the audience's interest against that of the Government in refusing
a waiver to the particular alien applicant, according to some as
yet undetermined standard. The dangers and the undesirability of
making that determination on the basis of factors such as the size
of the audience or the probity of the speaker's ideas are obvious.
Indeed, it is for precisely this reason that the waiver decision
has, properly, been placed in the hands of the Executive.

															Appellees seek to soften the impact of this analysis by arguing,
as has been noted, that the First Amendment claim should prevail,
at least where no justification is advanced for denial of a waiver.
Brief for Appellees 26. The government would have us reach this
question, urging a broad decision that Congress has delegated the
waiver decision to the Executive in its sole and unfettered
discretion, and any reason or no reason may be given. See Jay
v. Boyd, 351 U. S. 345 , 351 U. S.
357 -358 (1956); Hintopoulos v. Shaughnessy, 353 U. S. 72 , 353 U. S. 77 (1957); Kimm v. Rosenberg, 363 U.
S. 405 , 363 U. S. 408 (1960). This record, however, does not require that we do so, for
the Attorney General did inform Mandel's counsel of the reason for
refusing him a waiver. And that reason was facially legitimate and bona fide. The Government has chosen not to rely on the letter to counsel
either in the District Court or here. The fact remains, however,
that the official empowered to make the decision stated that he
denied a waiver because he concluded that previous abuses by Mandel
made it inappropriate to grant a waiver again. With this, we think
the Attorney General validly exercised the plenary power that
Congress delegated to the Executive by §§ 212(a)(28) and
(d)(3).

															In summary, plenary congressional power to make policies and
rules for exclusion of aliens has long been Page 408 U. S. 770 firmly established. In the case of an alien excludable under §
212(a)(28), Congress has delegated conditional exercise of this
power to the Executive. We hold that, when the Executive exercises
this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the
exercise of that discretion nor test it by balancing its
justification against the First Amendment interests of those who
seek personal communication with the applicant. What First
Amendment or other grounds may be available for attacking exercise
of discretion for which no justification whatsoever is advanced is
a question we neither address nor decide in this case. Reversed. [ Footnote 1 ]

															Brief for Appellees 1.

															[ Footnote 2 ]

															E. Mandel, Revolutionary Strategy in the Imperialist Countries
(1969), reprinted in App. 54-66.

															[ Footnote 3 ]

															Appellees, while suggesting that § 101(a)(40), defining "world
communism," and § 212(a)(28)(D) are unacceptably vague,

															"do not contest the fact that appellants can and do conclude
that Dr. Mandel's Marxist economic philosophy falls within the
scope of these vague provisions."

															Brief for Appellees 10 n. 8.

															[ Footnote 4 ]

															Entry presumably was claimed as a nonimmigrant alien under §
101(a)(15)(H) of the Act, 8 U.S.C. § 1101(a)(15)(H), namely,

															"an alien having a residence in a foreign country which he has
no intention of abandoning (i) who is of distinguished merit and
ability and who is coming temporarily to the United States to
perform services of an exceptional nature requiring such merit and
ability. . . ."

															[ Footnote 5 ]

															MR. JUSTICE DOUGLAS in his dissent, post at 408 U. S. 773 n. 4, states that Mandel's noncompliance with the conditions
imposed for his 1968 visit "appears merely to have been his
speaking at more universities than his visa application indicated."
The letter dated November 6, 1969, from the Bureau of Security and
Consular Affairs of the Department of State to Mandel's New York
counsel observed:

															"On his 1968 visit, Mr. Mandel engaged in activities beyond the
stated purposes of his trip. For this reason, a waiver of
ineligibility was not sought in connection with his September visa
application."

															Counsel's affidavit in support of appellees' motion for the
convening of a three-judge court and for the issuance of a
preliminary injunction stated:

															"Mr. Mandel further assured the Consul by letter on November 10,
1969, that he would not appear at any assembly in the United States
at which money was solicited for any political cause. This was
apparently in response to a charge that he had been present at such
a solicitation during his 1968 tour. ( See also Exhibit
L.)"

															"Of course, just as Mr. Mandel had no prior notice that he was
required to adhere to a stated itinerary in 1968, so Mr. Mandel was
not aware that he was forbidden from appearing where contributions
[were] solicited for political causes. I have been advised by Mr.
George Novack, an American citizen who coordinated Mr. Mandel's
1968 tour, that. in fact, the event in question was a cocktail
reception held at the Gotham Art Theatre in New York City on
October 19, 1968. Mr. Mandel addressed the gathering on the events
in France during May and June. Later that evening, posters by
French students were auctioned. The money was sent to aid the legal
defense of students who had taken part in the spring
demonstrations. Mr. Mandel did not participate in the fundraising.
( See Ex. L, Oct. 30, 1969 letter.)"

															The asserted noncompliance by Mandel is therefore broader than
mere acceptance of more speaking engagements than his visa
application indicated.

															[ Footnote 6 ] See, for example, Ekiu v. United States, 142 U.
S. 651 , 142 U. S. 659 (1892); Fok Yung Yo v. United States, 185 U.
S. 296 , 185 U. S. 302 (1902); United States ex rel. Turner v. Williams, 194 U. S. 279 , 194 U. S. 294 (1904); Keller v. United States, 213 U.
S. 138 , 213 U. S.
143 -144 (1909); Mahler v. Eby, 264 U. S.
32 , 264 U. S. 40 (1924); Shaughnessy v. Mezei, 345 U.
S. 206 , 345 U. S. 210 (1953); cf. Graham v. Richardson, 403 U.
S. 365 , 403 U. S. 377 (1971).

															[ Footnote 7 ]

															The Government's brief states:

															"The Immigration and Naturalization Service reports the
following with respect to applications to the Attorney General for
waiver of an alien's ineligibility for admission under Section
212(a)(28): "

															Total Number of Number Number

															Applications for of of

															Waiver of Waivers Waivers

															Year Section 212(a)(28) Granted Denied

															1971 6210 6196 14

															1970 6193 6189 4

															1969 4993 4984 9

															1968 4184 4176 8

															1967 3860 3852 8

															Brief for Appellants 18 n. 24. These cases, however, are only
those that, as § 212(d)(3)(A) provides, come to the Attorney
General with a positive recommendation from the Secretary of State
or the consular officer. The figures do not include those cases
where these officials had refrained from making a positive
recommendation.

															MR. JUSTICE DOUGLAS, dissenting.

															Under The Chinese Exclusion Case, 130 U.
S. 581 , rendered in 1889, there could be no doubt but
that Congress would have the power to exclude any class of aliens
from these shores. The accent at the time was on race. Mr. Justice
Field, writing for the Court, said:

															"If, therefore, the government of the United States, through its
legislative department, considers the presence of foreigners of a
different race in this country, who will not assimilate with us, to
be dangerous to its peace and security, their exclusion is not to
be stayed because, at the time, there are no actual hostilities
with the nation of which the foreigners are subjects." Id. at 130 U. S.
606 .

															An ideological test, not a racial one, is used here. But
neither, in my view, is permissible, as I have indicated on other
occasions. [ Footnote 2/1 ] Yet a
narrower question is raised here. Under the present Act, aliens who
advocate or teach "the economic, international, and governmental
doctrines of world communism" are ineligible to receive Page 408 U. S. 771 visas "[e]xcept as otherwise provided in this Act." [ Footnote 2/2 ] The "except" provision is
contained in another part of the same section, [ Footnote 2/3 ] and states that an inadmissible alien
"may, after approval by the Attorney General of a recommendation by
the Secretary of State or by the consular officer," be admitted
"temporarily despite his inadmissibility."

															Dr. Ernest Mandel, who is described as "an orthodox Marxist of
the Trotskyist school," has been admitted to this country twice
before -- once as a working journalist in 1962 and once as a
lecturer in 1968. The present case involves his third application,
made in 1969, to attend a conference at Stanford University on
Technology and the Third World. He was also invited to attend other
conferences, one at MIT, and to address several universities,
Princeton, Amherst, the New School, Columbia, and Vassar. This
time, the Department of Justice refused to grant a waiver
recommended by the State Department, and it claims that it need not
state its reasons, that the power of the Attorney General is
unfettered.

															Dr. Mandel is not the sole complainant. Joining him are the
other appellees who represent the various audiences which Dr.
Mandel would be meeting were a visa to issue. While Dr. Mandel, an
alien who seeks admission, has no First Amendment rights while
outside the Nation, the other appellees are on a different footing.
The First Amendment involves not only the right to speak and
publish, but also the right to hear, to learn, to know. Martin
v. City of Struthers, 319 U. S. 141 , 319 U. S. 143 ; Stanley v. Georgia, 394 U. S. 557 , 394 U. S.
564 .

															Can the Attorney General, under the broad discretion entrusted
in him, decide Page 408 U. S. 772 that one who maintains that the earth is round can be
excluded?

															that no one who believes in the Darwinian theory shall be
admitted?

															that those who promote a Rule of Law to settle international
differences, rather than a Rule of Force, may be barred?

															that a genetic biologist who lectures on the way to create life
by one sex alone is beyond the pale?

															that an exponent of plate tectonics can be barred?

															that one should be excluded who taught that Jesus, when he arose
from the Sepulcher, went east (not up), and became a teacher at
Hemis Monastery in the Himalayas?

															I put the issue that bluntly because national security is not
involved. Nor is the infiltration of saboteurs. The Attorney
General stands astride our international terminals that bring
people here to bar those whose ideas are not acceptable to him.
Even assuming, arguendo, that those on the outside seeking
admission have no standing to complain, those who hope to benefit
from the traveler's lectures do.

															Thought control is not within the competence of any branch of
government. Those who live here may need exposure to the ideas of
people of many faiths and many creeds to further their education.
We should construe the Act generously by that First Amendment
standard, saying that, once the State Department has concluded that
our foreign relations permit or require the admission of a foreign
traveler, the Attorney General is left only problems of national
security, importation of heroin, or other like matters within his
competence.

															We should assume that, where propagation of ideas is permissible
as being within our constitutional framework, the Congress did not
undertake to make the Attorney General a censor. For, as stated by
Justice Page 408 U. S. 773 Jackson in Thomas v. Collins, 323 U.
S. 516 , 323 U. S. 545 (concurring),

															"[t]he very purpose of the First Amendment is to foreclose
public authority from assuming a guardianship of the public mind
through regulating the press, speech, and religion. In this field,
every person must be his own watchman for truth, because the
forefathers did not trust any government to separate the true from
the false for us."

															In Brandenburg v. Ohio, 395 U.
S. 444 (which overruled Whitney v. California, 274 U. S. 357 ), we
held that the First Amendment does not permit a State

															"to forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or
produce such action." Id. at 395 U. S. 447 .
That case involved propagation of the views of the Ku Klux Klan.
The present case involves teaching the communist creed. [ Footnote 2/4 ] But, as we held in Noto
v. United States, 367 U. S. 290 , 367 U. S.
297 -298:

															"[T]he mere abstract teaching of Communist theory, including the
teaching of the moral propriety Page 408 U. S. 774 or even moral necessity for a resort to force and violence, is
not the same as preparing a group for violent action and steeling
it to such action."

															As a matter of statutory construction, I conclude that Congress
never undertook to entrust the Attorney General with the discretion
to pick and choose among the ideological offerings which alien
lecturers tender from our platforms, allowing those palatable to
him and disallowing others. [ Footnote
2/5 ] The discretion entrusted to him concerns matters commonly
within the competence of the Department of Justice -- national
security, importation of drugs, and the like.

															I would affirm the judgment of the three-judge District
Court.

															[ Footnote 2/1 ] See Harisiades v. Shaughnessy, 342 U.
S. 580 , 342 U. S. 598 (dissenting opinion); Galvan v. Press, 347 U.
S. 522 , 347 U. S. 533 (dissenting opinion).

															[ Footnote 2/2 ]

															§ 212(a)(28)(G)(v) of the Immigration and Nationality Act of
1952, 66 Stat. 185, 8 U.S.C. § 1182(a)(28)(G)(v).

															[ Footnote 2/3 ]

															§ 212(d)(3)(A), 8 U.S.C. § 1182(d)(3)(A).

															[ Footnote 2/4 ]

															The Court recognizes the legitimacy of appellees' First
Amendment claim, ante at 408 U. S.
762 -765. It argues, however, that, inasmuch as the
Attorney General gave a "facially legitimate and bona
fide " reason to refuse Dr. Mandel a waiver of ineligibility,
the Court should not "look behind the exercise of that discretion,
nor test it by balancing its justification against [appellees']
First Amendment interests. . . ." First, so far as the record
reveals, there is absolutely no support for the Attorney General's
claim that Dr. Mandel consciously abused his visa privileges in
1968. Indeed, the State Department itself concedes that he

															" was apparently not informed [in 1962 and 1968] that a visa
was issued only after obtaining a waiver of ineligibility, and
therefore may not have been aware of the conditions and limitations
attached to the visa issuance. "

															(Emphasis supplied.) App. 22. Second, the activities which the
Attorney General labeled "flagrant abuses" of Dr. Mandel's
opportunity to speak in the United States appear merely to have
been his speaking at more universities than his visa application
indicated. Indeed, he spoke at more than 30 universities in the
United States and Canada, including Harvard, the University of
California at Berkeley, Swarthmore, Notre Dame, Antioch, Michigan,
three appearances at Columbia, two at the University of
Pennsylvania, and the keynote address at the 1968 Socialist
Scholars Conference held at Rutgers. App. 25. It would be difficult
to invent a more trivial reason for denying the academic community
the chance to exchange views with an internationally respected
scholar.

															[ Footnote 2/5 ]

															As indicated in S.Rep. No. 1137, 82d Cong., 2d Sess., 12, the
discretion vested in the Attorney General was to be exercised "for
emergent reasons or for reasons deemed strictly in the public
interest." Ideological controls are not congenial to our First
Amendment traditions, and therefore should not be inferred.

															MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.

															Dr. Ernest Mandel, a citizen of Belgium, is an internationally
famous Marxist scholar and journalist. He was invited to our
country by a group of American scholars who wished to meet him for
discussion and debate. With firm plans for conferences, colloquia
and lectures, the American hosts were stunned to learn that Mandel
had been refused permission to enter our country. American consular
officials had found Mandel "ineligible" Page 408 U. S. 775 to receive a visa under §§ 212(a)(28)(D) and (G)(v) of the
Immigration and Nationality Act of 1952, 66 Stat. 185, which bars
even temporary visits to the United States by aliens who "advocate
the economic, international, and governmental doctrines of world
communism" or "who write or publish . . . any written or printed
matter . . . advocating or teaching" such doctrines. Under §
212(d)(3), the Attorney General refused to waive
inadmissibility.

															I, too, am stunned to learn that a country with our proud
heritage has refused Dr. Mandel temporary admission. I am convinced
that Americans cannot be denied the opportunity to hear Dr.
Mandel's views in person because their Government disapproves of
his ideas. Therefore, I dissent from today's decision, and would
affirm the judgment of the court below. I As the majority correctly demonstrates, in a variety of
contexts, this Court has held that the First Amendment protects the
right to receive information and ideas, the freedom to hear as well
as the freedom to speak. The reason for this is that the First
Amendment protects a process, in Justice Brandeis' words, "reason
as applied through public discussion," Whitney v.
California, 274 U. S. 357 , 274 U. S. 375 (1927) (concurring opinion); and the right to speak and hear --
including the right to inform others and to be informed about
public issues -- are inextricably part of that process. The freedom
to speak and the freedom to hear are inseparable; they are two
sides of the same coin. But the coin itself is the process of
thought and discussion. The activity of speakers becoming listeners
and listeners becoming speakers in the vital interchange of thought
is the "means indispensable to the discovery and spread of
political truth." Ibid.; see Terminiello v. Chicago, 337 U. S. 1 , 337 U. S. 4 (1949). Its Page 408 U. S. 776 protection is "a fundamental principle of the American
government." Whitney v. California, supra, at 274 U. S. 375 .
The First Amendment means that Government has no power to thwart
the process of free discussion, to "abridge" the freedoms necessary
to make that process work. See Lamont v. Postmaster
General, 381 U. S. 301 , 381 U. S. 308 (1965) (BRENNAN, J., concurring, with whom Goldberg and Harlan,
JJ., joined).

															There can be no doubt that, by denying the American appellees
access to Dr. Mandel, the Government has directly prevented the
free interchange of ideas guaranteed by the First Amendment.
[ Footnote 3/1 ] It has, of course,
interfered with appellees' personal rights both to hear Mandel's
views and to develop and articulate their own views through
interaction with Mandel. But as the court below recognized, apart
from appellees' interests, there is also a "general public interest
in the prevention of any stifling of political utterance." 325 F.
Supp. 620 , 632 (1971). And the Government has interfered with
this as well. [ Footnote 3/2 ] Page 408 U. S. 777 II What is the justification for this extraordinary governmental
interference with the liberty of American citizens? And by what
reasoning does the Court uphold Mandel's exclusion? It is
established constitutional doctrine, after all, that government may
restrict First Amendment rights only if the restriction is
necessary to further a compelling governmental interest. E.g.,
Lamont v. Postmaster General, supra, at 381 U. S. 308 ; NAACP v. Button, 371 U. S. 415 , 371 U. S. 438 (1963); Gibson v. Florida Legislative Investigation
Committee, 372 U. S. 539 , 372 U. S. 546 (1963); Shelton v. Tucker, 364 U.
S. 479 (1960).

															A. Today's majority apparently holds that Mandel may be excluded
and Americans' First Amendment rights restricted because the
Attorney General has given a "facially legitimate and bona
fide reason" for refusing to waive Mandel's visa
ineligibility. I do not understand the source of this unusual
standard. Merely "legitimate" governmental interests cannot
override constitutional rights. Moreover, the majority demands only
"facial" legitimacy and good faith, by which it means that this
Court will never "look behind" any reason the Attorney General
gives. No citation is given for this kind of unprecedented
deference to the Executive, Page 408 U. S. 778 nor can I imagine (nor am I told) the slightest justification
for such a rule. [ Footnote 3/3 ]

															Even the briefest peek behind the Attorney General's reason for
refusing a waiver in this case would reveal that it is a sham. The
Attorney General informed appellees' counsel that the waiver was
refused because Mandel's activities on a previous American
visit

															"went far beyond the stated purposes of his trip . . . and
represented a flagrant abuse of the opportunities afforded him to
express his views in this country."

															App. 68. But, as the Department of State had already conceded to
appellees' counsel, Dr. Mandel

															"was apparently not informed that [his previous] visa was issued
only after obtaining a waiver of ineligibility, and therefore
[Mandel] may not have been aware of the conditions and limitations
attached to the [previous] visa issuance."

															App. 22. There is no basis in the present record for concluding
that Mandel's behavior on his previous visit was a "flagrant abuse"
-- or even willful or knowing departure -- from visa restrictions.
For good reason, the Government in this litigation has never relied on the Attorney General's reason to justify
Mandel's exclusion. In these circumstances, the Attorney General's
reason cannot possibly support a decision for the Government in
this case. But without even remanding for a factual hearing to see
if there is any support for the Attorney General's
determination, the majority declares that his reason is sufficient
to override appellees' First Amendment interests.

															B. Even if the Attorney General had given a compelling Page 408 U. S. 779 reason for declining to grant a waiver under § 212(d)(3)(A),
this would not, for me, end the case. As I understand the statutory
scheme, Mandel is "ineligible" for a visa, and therefore
inadmissible, solely because, within the terms of § 212(a)(28), he
has advocated communist doctrine and has published writings
advocating that doctrine. The waiver question under § 212(d)(3)(A)
is totally secondary and dependent, since it is triggered here only
by a determination of (a)(28) ineligibility. The Attorney General's
refusal to grant a waiver doe not itself generate a new statutory
basis for exclusion; he has no roving power to set new ad
hoc standards for visa ineligibility. Rather, the Attorney
General's refusal to waive ineligibility simply has the same effect
as if no waiver provision existed; inadmissibility still rests on
the (a)(28) determination. Thus, whether or not the Attorney
General had a good reason for refusing a waiver, this Court, I
think, must still face the question it tries to avoid: under our
Constitution, may Mandel be declared ineligible under (a)(28)?

															C. Accordingly, I turn to consider the constitutionality of the
sole justification given by the Government here and below for
excluding Mandel -- that he "advocates" and "publish[es] . . .
printed matter . . . advocating . . . doctrines of world communism"
within the term of § 212(a)(28).

															Still adhering to standard First Amendment doctrine, I do not
see how (a)(28) can possibly represent a compelling governmental
interest that overrides appellees' interests in hearing Mandel.
[ Footnote 3/4 ] Unlike (a)(27) or
(a)(29), Page 408 U. S. 780 (a)(28) does not claim to exclude aliens who are likely to
engage in subversive activity or who represent an active and
present threat to the "welfare, safety, or security of the United
States." Rather, (a)(28) excludes aliens solely because they have
advocated communist doctrine. Our cases make clear, however, that
government has no legitimate interest in stopping the flow of
ideas. It has no power to restrict the mere advocacy of communist
doctrine, divorced from incitement to imminent lawless action. Noto v. United States, 367 U. S. 290 , 367 U. S.
297 -298 (1961); Brandenburg v. Ohio, 395 U. S. 444 , 395 U. S.
447 -449 (196). For those who are not sure that they have
attained the final and absolute truth, all ideas, even those
forcefully urged, are a contribution to the ongoing political
dialogue. The First Amendment represents the view of the Framers
that

															"the path of safety lies in the opportunity to discuss freely
supposed grievances and proposed remedies; and that the fitting
remedy for evil counsels is good ones"

															-- "more speech." Whitney v. California, 274 U.S. at 274 U. S. 375 ,
377 (Brandeis, J., concurring). If Americans want to hear about
Marxist doctrine, even from advocates, government cannot intervene
simply because it does not approve of the ideas. It certainly may
not selectively pick and choose which ideas it will let into the
country. But, as the court below put it, § 212(a)(28) is nothing
more than "a mean of restraining the entry of disfavored political
doctrine," 325 F. Supp. at 626, and such an enactment cannot
justify the abridgment of appellees' First Amendment rights. Page 408 U. S. 781 In saying these thing, I am merely repeating established First
Amendment law. Indeed, this Court has already applied that law in a
case concerning the entry of communist doctrine from foreign lands.
In Lamont v. Postmaster General, 381 U.
S. 301 (1965), this Court held that the right of an
American addressee to receive communist political propaganda from
abroad could not be fettered by requiring the addressee to request
in writing its delivery from the Post Office. See id. at 381 U. S. 308 (BRENNAN, J., concurring). The burden imposed on the right to
receive information in our case is far greater than in Lamont, with far less justification. In Lamont, the challenged law merely regulated the low of mail, and required
the Postmaster General to forward detained mail immediately upon
request by the addressee. By contract, through 212(a)(28), the
Government claims absolute power to bar Mandel permanently from
academic meetings in this country. Moreover, in Lamont, the Government argued that its interest was not to censor content,
but rather to protect Americans from receiving unwanted mail. Here,
Mandel's exclusion is not incident to a legitimate regulatory
objective, but is based directly on the subject matter of his
beliefs.

															D. The heart of appellants' position in this case, and the basis
for their distinguishing Lamont, is that the Government's
power is distinctively broad and unreviewable because "[t]he
regulation in question is directed at the admission of aliens."
Brief for Appellant 33. Thus, in the appellants' view, this case is
no different from a long line of cases holding that the power to
exclude aliens is left exclusively to the "political" branches of
Government, Congress, and the Executive.

															These cases are not the strongest precedents in the United
States Reports, and the majority's baroque approach reveals its
reluctance to rely on them completely. Page 408 U. S. 782 They include such milestones as The Chinese Exclusion
Case, 130 U. S. 581 (1889), and Fong Yue Ting v. United States, 149 U.
S. 698 (1893), in which this Court upheld the
Government's power to exclude and expel Chinese aliens from our
midst.

															But none of these old cases must be "reconsidered" or overruled
to strike down Dr. Mandel's exclusion, for none of them was
concerned with the rights of American citizen. All of them involved
only rights of the excluded aliens themselves. At least when the
rights of Americas are involved, there is no basis for concluding
that the power to exclude aliens is absolute.

															"When Congress' exercise of one of its enumerated powers clashes
with those individual liberties protected by the Bill of Rights, it
is our 'delicate and difficult task' to determine whether the
resulting restriction on freedom can be tolerated." United States v. Robel, 389 U.
S. 258 , 389 U. S. 264 (1967). As Robel and many other cases [ Footnote 3/5 ] show, all governmental Page 408 U. S. 783 power even the war power, the power to maintain national
security, or the power to conduct foreign affairs -- is limited by
the Bill of Rights. When individual freedoms of Americans are at
stake, we do not blindly defer to broad claims of the Legislative
Branch or Executive Branch, but rather we consider those claims in
light of the individual freedoms. This should be our approach in
the present case, even though the Government urges that the
question of admitting aliens may involve foreign relations and
national defense policies.

															The majority recognizes that the right of American citizens to
hear Mandel is "implicated" in our case. There were no right of
Americans involved in any of the old alien exclusion cases, and
therefore their broad counsel about deference to the political
branches is inapplicable. Surely a Court that can distinguish
between pre-indictment and post-indictment lineups, Kirby v.
Illinois, 406 U. S. 682 (1972), can distinguish between our case and cases which involve
only the rights of aliens.

															I do not mean to suggest that, simply because some Americans
wish to hear an alien speak, they can automatically compel even his
temporary admission to our country. Government may prohibit aliens
from even temporary admission if exclusion is necessary to protect
a compelling governmental interest. [ Footnote 3/6 ] Actual threats to the national security,
public health needs, and genuine requirements of law enforcement
are the most apparent Page 408 U. S. 784 interests that would surely be compelling. [ Footnote 3/7 ] But, in Dr. Mandel's case, the
Government has, and claims, no such compelling interest. Mandel's
visit was to be temporary. [ Footnote
3/8 ] His "ineligibility" for a visa was based solely on §
212(a)(28). The only governmental interest embodied in that section
is the Government's desire to keep certain ideas out of circulation
in this country. This is hardly a compelling governmental interest.
Section (a)(28) may not be the basis for excluding an alien when
Americans wish to hear him. Without any claim that Mandel "live" is
an actual threat to this country, there is no difference between
excluding Mandel because of his ideas and keeping his books out
because of their ideas. Neither is permitted. Lamont v.
Postmaster General, supra. III Dr. Mandel has written about his exclusion, concluding that
"[i]t demonstrates a lack of confidence" on the part of our
Government "in the capacity of its supporters to combat Marxism on
the battleground of ideas." He observes that he

															"would not be carrying any high explosives, if I had come, but
only, as I did before, my revolutionary views, which are well known
to the public."

															And he wryly notes that,

															"[i]n the nineteenth century, the British ruling class, which
was sure of itself, permitted Karl Marx to live as an exile in
England for almost forty years."

															App. 54.

															It is undisputed that Dr. Mandel's brief trip would involve
nothing but a series of scholarly conferences and lectures. The
progress of knowledge is an international Page 408 U. S. 785 venture. As Mandel's invitation demonstrates, individuals of
differing world views have learned the ways of cooperation where
governments have thus far failed. Nothing is served -- least of all
our standing in the international community -- by Mandel's
exclusion. In blocking his admission, the Government has departed
from the basic traditions of our country, its fearless acceptance
of free discussion. By now deferring to the Executive, this Court
departs from its own best role as the guardian of individual
liberty in the face of governmental overreaching. Principles of
judicial restraint designed to allow the political branches to
protect national security have no place in this case. Dr. Mandel
should be permitted to make his brief visit.

															I dissent.

															[ Footnote 3/1 ]

															Twenty years ago, the Bulletin of the Atomic Scientists devoted
an entire issue to the problem of American visa policy and its
effect on the interchange of ideas between American scholars and
scientists and their foreign counterparts. The general conclusion
of the editors -- supported by printed statements of such men as
Albert Einstein, Hans Bethe, Harold Urey, Arthur Compton, Michael
Polanyi, and Raymond Aron -- was that American visa policy was
hurting the continuing advance of American science and learning,
and harmful to our prestige abroad. Vol. 8, No. 7, Oct.1952,
pp.210-217 (statement of Special Editor Edward Shils). The
detrimental effect of American visa policy on the free exchange of
ideas continues to be reported. See Comment Opening the
Floodgates to Dissident Aliens, 6 Harv.Civ.Rights-Civ.Lib.L.Rev.
141, 143-149 (1970); 11 Bulletin of the Atomic Scientists, Dec.
1955, pp. 367-373.

															[ Footnote 3/2 ]

															The availability to appellees of Mandel's books and taped
lectures is no substitute for live, face-to-face discussion and
debate, just as the availability to us of briefs and exhibits does
not supplant the essential place of oral argument in this Court's
work. Lengthy citations for this proposition, which the majority
apparently concede, are unnecessary. I simply note that in a letter
to Henrik Lorenz, accepting an invitation to lecture at the
University of Leiden and to discus "the radiation problem," Albert
Einstein observed that, "[i]n these unfinished things, people
understand one another with difficulty unless talking face to
face." Quoted in Developments in the Law -- The National Security
Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1154 (1972).

															[ Footnote 3/3 ]

															As Judge Frankel has taught us, even the limited requirement of
facially sufficient reasons for governmental action may be
significant in some contexts; but it can hardly insulate the
government from subsequent challenges to the actual good faith and
sufficiency of the reasons. Frankel, Bench Warrants Upon the
Prosecutor's Demand: A View From the Bench, 71 Col.L.Rev. 403, 414
(1971).

															[ Footnote 3/4 ]

															The majority suggests that appellees

															"concede that Congress could enact a blanket prohibition against
entry of all aliens falling into the class defined by §§
212(a)(28)(D) and (G)(v), and that First Amendment rights could not
override that decision."

															This was certainly not the view of the court below, whose
judgment the appellants alone have challenged here and appellees
have moved to affirm. It is true that appellees have argued to this
Court a ground of decision alternative to that argued and adopted
below; but they have hardly conceded the incorrectness of what they
successfully argued below. They have simply noted, at 16-17 of
their brief, that, even if this Court rejects the broad decision
below, there would nevertheless be a separate and narrower basis
for affirmance. See Tr. of Oral Arg. 24, 226, 41-42.

															[ Footnote 3/5 ]

															In United States v. Robel, 389 U.
S. 258 (1967), this Court struck down a statute making
it a criminal offense for any employee of a "defense facility" to
remain a member of the Communist Party, in spite of Government
claims that the enactment came within the "war power." In Aptheker v. Secretary of State, 378 U.
S. 500 (1964), the Government unsuccessfully sought to
defend the denial of passports to American members of the Communist
Party, in spite of claimed threats to the national security. In Zemel v. Rusk, 381 U. S. 1 (1965),
the passport restriction on travel to Cuba was upheld because
individual constitutional rights were overridden by the "weightiest
considerations of national security"; but the Court rejected any
assumption "that simply because a statute deals with foreign
relations, it can grant the Executive totally unrestricted freedom
of choice." Id. at 381 U. S. 16 , 381 U. S. 17 . In Schneider v. Rusk, 377 U. S. 163 (1964), the Government unsuccessfully attempted to justify a
statutory inequality between naturalized and native-born citizens
under the foreign relations power. And in Lamont v. Postmaster
General, 381 U. S. 301 (1965), itself, as MR. JUSTICE BRENNAN noted, the Government urged
that the statute was "justified by the object of avoiding the
subsidization of propaganda of foreign governments which bar
American propaganda"; MR. JUSTICE BRENNAN answered that the
Government must act "by means and on terms which do not endanger
First Amendment rights." Id. at 381 U. S.
310 .

															[ Footnote 3/6 ]

															I agree with the majority that courts should not inquire into
such things as the "probity of the speaker's ideas." Neither should
the Executive, however. Where Americans wish to hear an alien, and
their claim is not a demonstrated sham, the crucial question is
whether the Government's interest in excluding the alien is
compelling.

															[ Footnote 3/7 ]

															It goes without saying, of course, that, once he has been
admitted, any alien (like any citizen) can be punished if he
incites lawless acts or commits other crimes.

															[ Footnote 3/8 ]

															Such "nonimmigrants" are not covered by quotas. C. Gordon &
H. Rosenfield, Immigration Law and Procedure § 2.6 (1971).