Exclusion of Certain Aliens as a First Amendment Problem.

Although a nonresident alien might be able to present no claim, based on the First Amendment or on any other constitutional provision, to overcome a governmental decision to exclude him from the country, it was arguable that United States citizens who could assert a First Amendment interest in hearing the alien and receiving information from him, such as the right recognized in Lamont, could be able to contest such exclusion.763 But the Court declined to reach the First Amendment issue and to place it in balance when it found that a governmental refusal to waive a statutory exclusion764 was on facially legitimate and neutral grounds; the Court’s emphasis, however, upon the “plenary” power of Congress over admission or exclusion of aliens seemed to indicate where such a balance might be drawn.765

Footnotes

763
The right to receive information has been prominent in the rationale of several cases, e.g., Martin v. City of Struthers, 319 U.S. 141 (1943); Thomas v. Collins, 323 U.S. 516 (1945); Stanley v. Georgia, 394 U.S. 557 (1969). [Back to text]
764
By §§ 212(a)(28)(D) and (G) of the Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1182(a)(28)(D) and (G), aliens who advocate or write and publish “the economic, international, and governmental doctrines of world communism” are made ineligible to receive visas and are thus excluded from the United States. Upon the recommendation of the Secretary of State, however, the Attorney General is authorized to waive these provisions and to admit such an alien temporarily into the country. INA § 212(d)(3)(A), 8 U.S.C. § 1182(d)(3)(A). [Back to text]
765
Kleindienst v. Mandel, 408 U.S. 753 (1972). [Back to text]