Kleindienst v. Mandel

Primary tabs

408 U.S. 753 (1972)

An alien who had been invited by U.S. citizens to participate in academic conferences in the United States was denied entry as a result of a statutory exclusion for aliens who promote communism. The Attorney General declined to waive the statutory exclusion. The Supreme Court held that the Attorney General had properly exercised his discretion in denying a waiver. The Court declined to examine the substance of the Attorney General’s decision or to engage in balancing the decision against the First Amendment rights of the U.S. citizens who had invited the alien to speak at the conferences. (Read the opinion here.)

Ernest Mandel was a Belgian national and well-known Marxist scholar who was invited by Stanford University to speak at an academic conference. Section 212(a) of the Immigration and Nationality Act of 1952 provided at the time that aliens who advocated communism or write about the doctrine of communism would be excluded from admission into the United States. Mandel had been allowed to enter the United States to speak at academic conferences in the past, relying on a waiver to the § 212(a) exclusion. On this occasion, the Attorney General declined to waive the exclusion. Mandel and the U.S. citizens who had invited him filed a claim to compel the Attorney General to waive the statutory exclusion on the grounds that refusal to waive infringed on the U.S. citizens’ First Amendment right to freely receive information and ideas.

The U.S. Supreme Court held that the Attorney General had properly declined to waive the statutory exclusion and that the U.S. citizen plaintiffs’ First Amendment rights had not been infringed upon. The Court cited the Chinese Exclusion Case, reaffirming that the power to exclude aliens is a power inherent to every sovereign state. The Court also reaffirmed that as part of this sovereign power, Congress has the right to exclude aliens and to delegate discretion to the Attorney General to waive the exclusion. The Court held that because the Attorney General’s decision not to waive was “facially legitimate” and “bona fide,” the Court would not consider the substance of the decision, nor would it engage in balancing against the First Amendment interests of the U.S. citizen plaintiff-appellants. The Court also expressed a policy concern that compelling waivers to § 212(a) on the grounds that it prevented U.S. citizens from receiving an alien’s ideas would open the door to requiring waivers to every alien with whom a U.S. citizen would like to speak.

Justice Douglas’s dissent rejected the notion of an unfettered right for Congress to exclude aliens, declaring both the majority holding in this case and that of the Chinese Exclusion Case to be constitutionally impermissible. His dissent argued that absent a threat to national security, it would be impermissible for Congress to exclude aliens based on their race or ideology.

Justices Marshall and Brennan dissented jointly, holding that not only did the Attorney General’s refusal to waive the exclusion violate the First Amendment, but that § 212(a) was unconstitutional. They argued that strict scrutiny applied, under the theory that the U.S. citizen plaintiffs’ First Amendment rights were implicated because excluding Mandel prevented the citizens from receiving his ideas and engaging in ideological discourse with him. Their dissent also examined the Attorney General’s rationale for refusing a waiver and found it unreasonable. Further, the Justices argued that § 212(a) was overbroad because excluding all aliens who have advocated communist doctrine did not implicate any compelling government interest.

Authored by: Carolyn Wald, Cornell Law School