408 U.S. 753 (1972)
Ernest E. Mandel is a Belgian citizen who resides in Brussels.1 He works as a professional journalist and serves as editor-in-chief of the Belgian Left Socialist weekly La Gauche.2 Mandel authored a two-volume work entitled Marxist Economic Theory, which was published in 1969.3 Although he asserted in his visa applications that he is not a member of the Communist Party, he has described himself as a revolutionary Marxist and does not dispute that he advocates the economic, governmental, and international doctrines of world communism.4
Mandel was admitted to the United States temporarily in 1962 as a working journalist.5 He returned in 1968 to speak at universities and colleges.6 On each occasion his admission followed a finding of ineligibility under § 212(a)(28) and the Attorney General's exercise of discretion to admit him temporarily on the recommendation of the Secretary of State.7
On September 8, 1969, Mandel applied to the American Consul in Brussels for a nonimmigrant visa.8 He sought to participate in a conference on Technology and the Third World at Stanford University for a six-day period.9 The University heartily endorsed the invitation through its president.10 When his intended visit became known, additional invitations for lectures and conference participations came from members of the faculties at Princeton, Amherst, Columbia, and Vassar, as well as from groups in Cambridge, Massachusetts, and New York City.11 The Consul refused the application on October 23, 1969, and confirmed the denial in writing on October 30.12 On December 1 the Consul informed Mandel that his visa had been refused.13
The Immigration and Naturalization Service, acting for the Attorney General, determined in a February 13, 1970 letter that Mandel's 1968 activities went far beyond the stated purposes of his trip and represented a flagrant abuse of the opportunities afforded him.14 The letter concluded that favorable exercise of discretion was not warranted.15 Mandel's address to a New York meeting was then delivered by transatlantic telephone.16 In March 1970 Mandel and eight other United States citizens who are university professors in the social sciences instituted this action.17 They had invited Mandel to speak or expected to participate in colloquia with him.18 A three-judge district court held the statutes invalid and enjoined their enforcement, with one judge dissenting. The Supreme Court noted probable jurisdiction.19
Whether the provisions of §§ 212(a)(28)(D) and (G)(v) and § 212(d)(3)(A) of the Immigration and Nationality Act of 1952 are unconstitutional as applied because they deprive American citizens of freedom of speech guaranteed by the First Amendment?20
Congress possesses plenary power to make rules for the admission of aliens and to exclude those who possess characteristics which Congress has forbidden.21 This power is inherent in sovereignty.22 It is to be exercised exclusively by the political branches of government.23 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.24
No. The statutes are not unconstitutional as applied here.25 Although the First Amendment protects the right of American citizens to receive information and ideas, the professors who invited Mandel asserted interests in hearing him explain and seek to defend his views through in-person discussions at Stanford University and other institutions.26 The Attorney General, through the Immigration and Naturalization Service, validly exercised delegated authority.27 The INS letter of February 13, 1970 stated that Mandel's 1968 activities went far beyond the stated purposes of his trip and represented a flagrant abuse of the opportunities afforded him.28
This determination supplied a facially legitimate and bona fide reason for denying the waiver under § 212(d)(3)(A).29 The professors' invitations establish their concrete interest in academic exchange.30 That interest does not override the plenary congressional delegation when the Executive acts on such a reason.31 The district court's declaratory judgment and injunction against enforcement of the statutes therefore cannot stand.32
The Supreme Court has consistently sustained Congress's complete legislative power over the admission of aliens without exception for First Amendment claims of this character.33
The provisions of §§ 212(a)(28)(D) and (G)(v) and § 212(d)(3)(A) are constitutional as applied and do not violate the First Amendment rights of the American professors.34
Related opinions on this issue
Joined by Justice Brennan
Justice Marshall, joined by Justice Brennan, dissented.35 He contended that the Attorney General's stated reason for denying the waiver was a sham unsupported by the record.36 The State Department had already conceded that Mandel may not have been aware of prior visa conditions.37
Justice Marshall argued that § 212(a)(28) itself cannot represent a compelling governmental interest sufficient to override the professors' First Amendment rights to hear Mandel.38 The provision excludes aliens solely for advocating communist doctrine without any claim of incitement to imminent lawless action.39 He maintained that the power to exclude aliens is limited when American citizens' rights are at stake.40
Whether the First Amendment confers upon American professors the ability to compel the Attorney General to allow an excludable alien to enter the country to attend academic meetings and engage in discussions?41
The First Amendment protects the right to receive information and ideas.42 This protection does not extend so far as to allow American citizens to compel the admission of an alien excludable under § 212(a)(28) when the Executive has exercised its delegated discretion on a facially legitimate and bona fide reason.43
No. The First Amendment does not confer upon the American professors the ability to compel the Attorney General to admit Mandel.44 The professors are United States citizens and university faculty members who invited Mandel to Stanford and expected to participate in colloquia with him.45 They possess a protected interest in face-to-face academic exchange.46 Nevertheless Mandel himself possesses no constitutional right of entry.47
The professors' desire to hear him cannot nullify the Attorney General's discretionary denial grounded in the February 13, 1970 determination that Mandel had previously abused visa privileges.48 Allowing every bona fide invitation from American citizens to override the statutory scheme would render the plenary power delegated by Congress a nullity.49 Courts would be forced to weigh audience size and speaker popularity in each case.50 The professors' alternative access to Mandel's ideas through books, prior speeches, and the transatlantic telephone address delivered after the denial further illustrates that the asserted right does not rise to a power of compulsion over executive immigration decisions.51
The First Amendment does not confer upon American professors the ability to compel the Attorney General to allow an excludable alien such as Mandel to enter the country.52
Related opinions on this issue
Justice Douglas dissented contending that the Attorney General's discretion under the waiver provision should be confined to matters within the Department of Justice's competence such as national security or importation of drugs.53 The discretion should not extend to ideological screening of alien lecturers.54 He maintained that the First Amendment protects the right to hear and learn.55
Once the State Department recommends admission the Attorney General may not act as a censor of ideas by denying waivers to those whose views he finds unacceptable.56
Whether courts may look behind the Attorney General's exercise of discretion to deny a waiver of inadmissibility when the denial rests on a facially legitimate and bona fide reason?57
When the Executive exercises the plenary power delegated by Congress to deny a waiver of inadmissibility under § 212(d)(3)(A) 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.58
No. Courts may not look behind the Attorney General's exercise of discretion in this setting.59 The INS letter dated February 13, 1970 supplied the reason that Mandel's 1968 visit involved activities far beyond the stated purposes and constituted a flagrant abuse.60 A determination that is facially legitimate on its face was communicated to Mandel's counsel.61 Because the reason meets the threshold of facial legitimacy and bona fides judicial inquiry stops there.62
No further examination of the underlying facts of the 1968 visit or balancing against the professors' invitations and academic interests is permitted.63 The Supreme Court therefore reversed the district court's judgment that had declared the statutes invalid and enjoined their enforcement.64 This rule preserves the exclusive role of the political branches in immigration matters while leaving open the separate question of review when no justification at all is advanced.65
Courts may not look behind the Attorney General's exercise of discretion to deny a waiver of inadmissibility when the denial rests on a facially legitimate and bona fide reason.66
Related opinions on this issue
Joined by Justice Brennan
Justice Marshall, joined by Justice Brennan, further argued that even a facially legitimate reason cannot justify exclusion when the underlying statutory bar rests solely on advocacy of ideas.67 He emphasized that government has no legitimate interest in stopping the flow of ideas and that the power to exclude must yield when American citizens' First Amendment rights are directly implicated without any compelling national security justification.68 Marshall stressed that § 212(a)(28) excludes aliens solely because they have advocated communist doctrine, divorced from any incitement to imminent lawless action.69
He maintained that when the rights of American citizens are involved, the broad deference to the political branches in alien exclusion cases does not apply, and the government must demonstrate a compelling interest that overrides the First Amendment.70 In the absence of any claim that Mandel's visit posed an actual threat to national security, the exclusion based purely on his ideas was unconstitutional.71