KLEINDIENST v. MANDEL
Legal provision: Immigration and Naturalization, Immigration, Nationality, or Illegal Immigration Reform and Immigrant Responsibility Acts, as amended
Argument of Daniel M. Friedman
Chief Justice Warren E. Burger: We'll hear arguments next in number 71-16, United States against Mandel.
Mr. Daniel M. Friedman: Mr. Chief Justice and may it please the Court.
Now this is a direct appeal from a judgment of a three-judge District Court in the Eastern district of New York, holding unconstitutional a provision of the Immigration and Nationality Act of 1952.
It excludes from the United States aliens who advocate, or whose writings advocate, or teach the doctrines of world communism.
The statute involved is set forth at pages 3 and 4 of our brief.
And it is composed as far as this litigation is concerned of two sections.
The first is Section 212 (a), which says except as otherwise provided the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the Untied States.
Then subdivision 28 says aliens would any time have been members of the following classes.
I will now just combine for simplicity sub-paragraphs V and G of that.
What it says is that aliens who advocate, or whose writings advocate or teach the economic, international and governmental doctrines of world communism.
Now at the top of the page 4, is another provision which is referred to as the waiver provision.
And what it says is that in the event of an alien who is otherwise ineligible for admission under the prior sections of which 28 is one, that alien maybe temporarily admitted to the United Sates after approval by the Attorney General of a recommendation either by the Secretary of State, or of the counselor office involved that the alien be temporarily admitted in the discretion of the Attorney General, so that for this provision to be operative, we need two things.
First, there has to be a recommendation for a way but by either the counselor official involved or the secretary of state, and secondly, the Attorney General must grant the waiver in his discretion.
The appellee, Dr. Mandel is a Belgian citizen, a resident of Brussels who is a prominent Marxist economist.
He is not a member of the Communist Party, but he describes himself as a revolutionary Marxist.
Justice Potter Stewart: He was a what kind of a Marxist?
Mr. Daniel M. Friedman: A revolutionary.
Justice Potter Stewart: I thought you said common market at first.
Mr. Daniel M. Friedman: No, Communist Party.
No, he's not interested in the common market.
The District Court described him as an orthodox Marxist of the Trotskyist school.
Apparently he does not agree with some of the views of Russian communism, but he is saying and his writings indicate he is urging and seeking to develop a revolution under which the workers will take over control.
Justice Potter Stewart: Is he interested in academic life or a political life?
Mr. Daniel M. Friedman: Academic life primarily, and he has written a book called, Marxist Economic, that is considered a well-known work and indeed his works are sometimes studied in college.
And we think that under the statute there is no question that he comes within the definition of someone who advocates the doctrines of world communism.
Now in 1962 and 1968, Dr. Mandel came to this country pursuant to waivers it had been granted.
In the first case in 1962 he came here as a journalist and in the second year he came here to give a series of lectures.
In the fall of 1969, he again sought a visa in Brussels for the purpose of giving lectures here and attending various meetings in the academic community.
The first application which he filed, he filed two of them in 1969, the application in that case to request for a waiver, -- the question of a waiver was denied by the State Department in Washington.
Then later on in November of 1969, the counsel and the State Department recommended to the Attorney General that a waiver be granted to Dr. Mandel.
They explained that on the earlier occasion in 1969, they had declined to recommend a waiver because they said that he engaged in activities beyond the stated purpose of his trip when he came to this country in 1968.
However, the State Department said they subsequently learned, that when he made his previous trip to the United States, Dr. Mandel may not have been aware of the fact.
That he came here pursuant to a waiver of the ineligibility requirement.
And therefore may not have been aware of the limitations imposed upon his trip to this country.
And they also pointed out, that Dr. Mandel had given assurances that on this time he will conform to his stated itinerary and purposes.
The Attorney General acting through the Immigration and Naturalization Service, to whom he has delegated his authority under this statute denied the waiver.
And the reason is most clearly set forth, I think in the paragraph of the bottom of 68 in the left, which is the record, which is a letter from the associate commission of operations of the Immigration and Naturalization Service to Mr. Boudin, Dr. Mandel's counsel.
And what this letter says is on his last visit in 1968 --.
Chief Justice Warren E. Burger: Excuse me, Mr. Friedman, on the 58 of the Appendix.
Mr. Daniel M. Friedman: 68, I am sorry, 68 of the Appendix, Mr. Chief Justice, at the bottom of that page and last paragraph.
On his last visit in 1968, Mr. Mandel's entry was authorized for a series of academic engagements in the United States.
His activities while here were much reported to the press and 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.
Now in March of 1970, the complaint in this case was filed.
The plaintiffs Dr. Mandel and sixth American University professors.
The general allegation of the complaint was that the statutory provision directing the exclusion of the aliens who advocated the doctrine of world communism, was unconstitutional and violation of the First and Fifth Amendments and that the waiver provision was similarly unconstitutional.
And the theory however is rather interesting because there is no claim in this case that the plaintiffs are asserting any rights on behalf of Dr. Mandel.
They claim their asserting their First Amendment rights to hear to Mandel and to discuss it.
As they put it in their complaint that Dr. Mandel's exclusion denied then, the American Professors, the right to hear Mandel in University and other public forums in this country, and to exercise their freedom of academic inquiry by engaging Mandel in an open and face to face exchange of information and opinions.
And they now state in their brief at page 14, they are suing only to enforce their rights and assert none on the part of the invited alien.
A divided three-judge court held the statute unconstitutional both on its face and as applied, ended a declaratory judgment to that effect.
And also a preliminary injunction enjoining the Attorney General from refusing to admit Dr. Mandel on a temporarily on a visa.
Justice William H. Rehnquist: Mr. Friedman do you read the judgment of the three-judge court as turning exclusively unconstitutional ground.
Mr. Daniel M. Friedman: I do Mr. Justice, I do Mr. Justice, that's the whole theory of it and as far as we can tell the Court to did not decide any of the other attacks which the plaintiffs made upon the statute.
Justice William O. Douglas: What was the question?
I didn't hear it.
Mr. Daniel M. Friedman: The question is whether I read the judgment of the District Court as turning solely on constitutional grounds and my answer is I do.
I think the opinion makes it quite clear.
The Court recognized that although Dr. Mandel himself had no right to enter this country, it concluded that American citizens here have a First Amendment right to hear him and to exchange views with him.
And they said this First Amendment right and the plaintiffs must prevail over the Government's right to exclude him because, the government was excluding him not because he was actually engaging in a dangerous activity, but merely because of the views that he advocated.
They then went on to say that as far as the wavier was concerned that where the exclusion of the alien impinges on rights protected by the First Amendment, you can't let that as admission turned on the discretionary action of the Attorney General and then seemingly a little inconsistent with that went on and said, but in any event since we hold that the government has no right to exclude him at all, it's irrelevant whether or not, the discretion was properly exercised.
Now in the district --
Justice William O. Douglas: Under your theory, could a born professor who planned to come here to teach Mandel's text, that book you called, what's it, The Marxist Economic Theory?
Mr. Daniel M. Friedman: Yes.
Justice William O. Douglas: Would he be excluded?
Mr. Daniel M. Friedman: I think it, iI am not certain about it, let me just -- if I made just look at the statute again.
Justice William O. Douglas: He is coming here to teach this theory in Mandel's book.
Mr. Daniel M. Friedman: I suppose it could be under subsection (j) because it refers to who knowingly having their possession for the purpose of circulation, publication, distribution, or display any written or printed matter.
I take it if he had a copy of Mandel's book in his possession, he was going to urge the students to read that he could be excluded, but that of course is not -- let me make it very clear, this case, because --
Justice William O. Douglas: I understand.
Mr. Daniel M. Friedman: Yes I think, I think --
Justice William O. Douglas: How far you would go because the Court is not pretty far to let the academic community stand alone in what wants to teach.
Mr. Daniel M. Friedman: I think the academic community of course has the right as to what it wants to teach and there is nothing.
There is nothing at all in this situation that in anyway inhibits any of the plaintiffs from teaching any of Dr. Mandel's theories, from discussing any of Mandel's theories, his works are freely available here.
The only question in this case is whether they have a constitutional right to enforce, to force the government to admit Dr. Mandel, so they can talk to him face to face, so that they can discuss things with him.
The record shows in this case that on one occasion after he was denied admission on audience of 1200 people in Town Hall in New York City heard by a tape recording, the text of the speech he would have been planning to give there.
So his views are freely available to everyone in this country.
The only question is whether or not the teachers have a right to have face to face confrontations with a man, that Congress is said is ineligible for admission.
Now as the case was presented to the District Court, the major challenge to this statute was to the constitutionality of the exclusion of this class of alien.
But when the case comes to this court the appellees have rather dramatically shifted their argument.
As I read their brief they no longer are attempting to defend the decision of the District Court.
They now argue not that the statute is constitutional but that the refusal of the Attorney General to grant a waiver was in progress.
As I understand the argument it is that because of the fact that these people want to hear and talk to this man.
And because of the fact that they say all he is doing is advocating and they say, they have some First Amendment right to see him face to face.
Therefore it must have been in the public interest for the Attorney General to have admitted this man and therefore his failure to do so was erroneous.
Now this --
Chief Justice Warren E. Burger: Let me be sure what has happened to the argument that statute is unconstitutional because it rests under viewable authority and the Attorney General.
Well that's abandoned?
Mr. Daniel M. Friedman: No, that argument has not been abandoned.
The argument that has been abandoned is that the statutes on its face.
The ban on the admission of aliens who advocate the doctrines of world communism.
But that is on its face invalid.
That argument as I understand has been abandoned in this Court.
I think they do challenge, they do challenge the contention, the effectiveness of the wavier but even there as I understand it, it's not so much because it vests un-reviewable discretion on the Attorney General as rather that the Attorney General improperly exercises discretion in this case.
Mr. Boudin will explain little further but that's as I read his brief.
And this narrower argument is one that was not made in the District Court, one that we think the District Court has very clearly not decided.
And one which we think under the circumstances is not appropriately open to me made in this Court.
If in fact this is a consideration it's one we think that should be made on the District Court if the case goes back on remand.
Now the congressional exclusion of varies categories of aliens has a long history.
It goes back almost a 100 years.
That began in 1875 with the exclusion of two categories, convicts and prostitutes.
In 1903, the categories of excludable aliens were expanded to include among other anarchists and people who believe in or advocate the overthrow of the government by force or violence.
Progressively, the categories of excludable aliens were expanded and in 1950, in the Internal Security Act of that year, was a provision, comparable to the provision in the present act providing for the exclusion of aliens who advocated the doctrines of world communism.
This expansion was based on congressional findings.
In the 1950 Act as to the menace of world communism, as to the dangers, that members of the communist movement would come into this country and surreptitiously subvert our institutions.
Now, for almost as long as Congress has excluded categories of aliens of various types.
This Court has recognized the broad power of Congress to do so.
Since the Chinese Exclusion Case, in 1889, this Court has repeatedly recognized and stressed the broad authority of Congress to exclude aliens.
In 1904 almost 70 years ago in the case called Turner, that the Court upheld that how to exclude an anarchist under the statute as it was then written, even though it was willing to assume for purposes of decision that the anarchist basic attitude was primarily philosophical rather than actually planning to destroy the government.
As the justice Frankfurter stated for the Court in his opinion in Galvan against Press some years ago, when we are dealing with the power to exclude aliens we had not merely a page of history put a whole volume.
Now the right to exclude aliens is inherent, in the sovereignty of any nations.
It's necessary both to protect the domestic security of the nation and also to aided in the conduct of foreign relations.
So the contention comes down to is this basically in this case and I might add in passing that appellees themselves in this court and the District Court recognized that Mandel as such has no right to enter.
So the contention basically comes down to is this.
Even though Dr. Mandel himself had no right to enter.
The fact that the appellees want to hear him and want to meet with him, gives them a right to compel his admission.
Though, as they have greater rights to compel his admission to this country, than he has.
We know of no case that has held or even suggested that this kind of a claim, the right of people, the claim that the people want to hear someone talk, overwrites the power, plenary power of congress to exclude aliens.
Now the people in this country admittedly have a First Amendment right to listen to speaking that is going on, they do normally think have a right to overrule the settled power of the Congress and force the admission of an alien who belongs to a category that Congress has said is not be admitted.
The reason we think this statute does not impinge any First Amendment rights of the appellees, is basically it relates not to speech but to action.
It doesn't bar an alien from speaking, it bars the alien from coming in.
Now of course, obviously if he can't come in, he can't speak here.
Chief Justice Warren E. Burger: Well he could send tape recordings.
Mr. Daniel M. Friedman: He can send tape recordings, he could send books, his books are freely brought in here.
Chief Justice Warren E. Burger: I thought your statement was a little too broad.
Mr. Daniel M. Friedman: Oh, I am sorry Mr. Chief Justice.
Chief Justice Warren E. Burger: That he --
Mr. Daniel M. Friedman: He cannot speak in person here, he cannot speak in person.
Chief Justice Warren E. Burger: They could tape, well I ask you, could they tape a video tape in Brussels and send it over in air or all the networks.
Mr. Daniel M. Friedman: I would see no reason -- I would see no reason, why not.
I would see no reason, why not.
But this collateral consequence, this collateral consequence of his exclusion that is the fact that as a result of that people here cannot meet and speak with him.
We don't think that turns this statute into a law of Congress abridging the freedom of speech, within the meaning of the First Amendment.
This Court had very similar argument presented to what in the case of Zemel against Rusk which upheld the authority of the Secretary of State to denied passports to Cuba.
In that case, Mr. Zemel said that he wanted to satisfy his curiosity about the State of Affairs in Cuba and that his visit would make him a better informed citizen.
Now this court said that the denial of a passport to Mr. Zemel to visit Cuba invaded no First Amendment rights of Mr. Zemel, and the reason we think applies equally to this case.
This is what the Court said.
To the extent that the secretary's refusal to validate passports for Cuba act as an inhibition.
That is an inhibition on obtaining information about Cuba and would be unrealistic to assume that it does not, it is an inhibition of action.
There are few restrictions on action which could not be closed by ingenious argument in regard of decreased data flow.
The right to speak and publish does not carry whether the unrestrained right to gather information.
And we think the same principle applies in this case, the right to speak freely between themselves, the right perhaps to engage in face to face dialog with speakers in this country does not give them the right to insist that anyone they want to hear can be brought into this country.
So as far as the holding of the District Court that the statute is unconstitutional to ban, we think the basic error of the District Court as I think is demonstrated in the dissenting opinion was its failure to recognize the broad authority of Congress in this country to exclude aliens of any class.
Now let me come to the other aspect of the case.
The refusal of the Attorney General to waive Dr. Mandel's ineligibility.
Now of course, most of the arguments that I have made previously apply in this situation too.
It seems to us, if the appellees have no First Amendment right to bring them into here and it seems to me equally they have no First Amendment right to complain that the Attorney General declined to waive his ineligibility.
Justice Potter Stewart: His, at least this difference, however, the cases that which you have been citing us of all of that cases in which Congress in its wisdom or lack of it has decided to exclude certain kinds of people who want to come to this country.
In this case, Congress has said ultimately we are just going to leave it up to an officer of the Executive Department, that doesn't -- that raise something else.
I mean you would no longer in support for that position can rely so much on Congress's power, Congress is just advocated its power.
We just have the Attorney General.
Mr. Daniel M. Friedman: I think not mistrust Mr. Justice, Congress has broadly prohibited admission of --
Justice Potter Stewart: Well, except in fact and I have seen the figures and the briefs and the papers here.
The fact is that the lion's share of these people are let in because the Attorney General doesn't allow --
Mr. Daniel M. Friedman: If I may add one qualification Mr. Justice, the lion's share of those as to whom an affirmative recommendation was made by the counsel.
We don't know if the counsel --
Justice Potter Stewart: Well, here it was made by the Secretary of the State, was it not?
Mr. Daniel M. Friedman: Yeah.
But if there is -- if the cases where no recommendation is made then it never gets to --
Justice Potter Stewart: Yes, but we are talking about this category where it's made by the Counsel or the Secretary of the State.
Mr. Daniel M. Friedman: But if I may suggest Mr. Justice, that the cases I have cited in addition to recognizing the broad discretion of the Congress to exclude aliens have also correspondingly recognized that the congress may delegate to administrative officers discretion to decide whether to admit or exclude a particular alien.
It's not just that Congress can exclude, the Congress can delegate.
I would like to refer the court to a case decided some years ago called Jay against Boyd which we have discussed in our brief citied in our brief at Page 7.
That's Page 7 of our reply brief.
Page 7 of our -- and that's the little thin thing.
But I will expand a little bit on the discussion of Jay against Boyd that we give in our brief.
That was a statute very close to this statute.
It provided that the “The Attorney General may, in his discretion, virtually the same language that we have here suspend deportation of an alien who would otherwise be deported.
The statute setup various such conditions which had to be met before an alien was eligible for deportation.”
The question in the case was whether an alien who met those statutory standards could nevertheless be denied suspension of deportation by the Attorney General without a hearing and on the basis of confidential information known only to the Attorney General.
Now this Court held that the Attorney General could do that.
And the reason the Court gave was that Congress in the statute have left it to the unfettered discretion as it described it of the Attorney General to decide a particular case, whether or not to suspend deportation.
It pointed out that the Congress in its statute did not provide standards for determining who among qualified applicants for admission should receive the ultimate relief.
That determination is left to the sound discretion of the Attorney General.
The statute says that as to qualified deportable aliens, the Attorney General may in his discretion suspend deportation.
It does not restrict the considerations which maybe relied upon or the procedure by which the discretion should be exercised.
Grant thereof is manifestly, not a matter of right under any circumstances, but rather in all cases a matter of grace.
And we think that the language applies, principally applies equally to this case.
Congress has not specified any standards by which the Attorney General is to decide in his discretion whether or not to grant away for ineligibility.
Congress obviously left it to the Attorney General to consider these matters taking account of all of the myriads of facts that enter into this judgment.
Justice Thurgood Marshall: Mr. Friedman, if we follow this language in Jay of unfettered discretion.
What do we hear in this case for?
Mr. Daniel M. Friedman: We are on this case, because Mr. Justice, the District Court --
Justice Thurgood Marshall: If it's unfettered, why court should be involved with it at all?
I should assume.
Mr. Daniel M. Friedman: But because the district court has struck down.
Justice Thurgood Marshall: That's your position that the District Court could do nothing.
Mr. Daniel M. Friedman: Well, our position Mr. Justice.
Justice Thurgood Marshall: Or that was unfettered means?
Mr. Daniel M. Friedman: That's right.
This is a matter within the discretion of the Attorney General.
Now let me say --
Justice Thurgood Marshall: But can Congress give unfettered discretion.
Mr. Daniel M. Friedman: This court has said that Mr. Justice in Jay against Boyd.
I think Congress can in many of decisions of this Court recognized that in dealing with aliens, dealing with aliens, what Congress has complete authority to exclude them.
Congress, we think, does have the power to say whether you are going to permit an alien of the excludable class to be admitted.
The Congress can leave that to the discretion of the Attorney General, and he is free to take in account all the pertinent considerations.
It seems to us that's quite clearly what Congress has done in this statute.
Chief Justice Warren E. Burger: Thank you Mr. Friedman.
Argument of Leonard B. Boudin
Mr. Leonard B. Boudin: Mr. Chief Justice may it please the court.
We will begin with two points.
One suggested out of questioning of Mr. Justice Marshall and the other the result of the reference Jay against Boyd and to unfettered discretion.
First, this is of course, a case, a suit by American citizens, American university professors and “Dr. Mandel was in a sense made a plaintiff because he is symbolic of a problem.”
The real parties of interest we've conceded from the beginning are only the American university professors and the institutions which they represent.
Chief Justice Warren E. Burger: Well, are they asserting his rights?
Mr. Leonard B. Boudin: They are asserting their rights Your Honor and not his.
Now the second aspect is the reference to Jay against Boyd and to unfettered discretion.
I know of no case whether it deals with aliens or whether it deals with any other aspect of American law where unfettered discretion has been upheld by this court.
In Jay against Boyd the problem that was posed there was whether or not when the Attorney General states that considerations of national security forbid him to state the reason.
The court will accept the good faith statement of the Attorney General and we would too, if we didn't have a reason stated here that we could challenge.
And in Hintopoulos where Mr. Justice Harlan did recognize that the suspension of deportation was a matter of race, he added in the concluding paragraph that the facts in that case show that Attorney General had not acted capriciously or arbitrarily and we don't think that in any case, and particularly one involving the First Amendment.
This court would stand for the proposition that if we had a fact situation which we think we can establish here, where there is arbitrary and capricious denial of First Amendment rights, then such action by the Government would be upheld.
Now, the Government has pointed out that there seems to a shift of position here.
I may say there maybe a shift of emphasis, but our position has been consistent.
In the court below on behalf of the America plaintiffs, as I say saving their First Amendment right, we took the position very much similar to the one which I happen to have taken in Kent against Dulles, many years before, arguing that the statutes on their face as applied were unconstitutional.
Court will recall that it took a more limited view when the case finally came up and said that the statute was not intended to apply, because of the First Amendment rights that were involved to the situation there namely the denial of passports for political reasons.
But we also took in this case as Your Honors will see from our complaint, a direct attack upon the Attorney General's action as capricious and as without any foundation.
We did not give up either point when we opposed the appeal here.
What we did was attempt to support the decision on a narrower ground following the standard practice in this court or seeking a narrow ground if it could be done in declaring a statute unconstitutional.
Justice William H. Rehnquist: The District Court didn't pass on your alternative though?
Mr. Leonard B. Boudin: No, the District Court didn't pass on our alternatives, because the Government really didn't give it the chance to.
It wasn't our fault, it was the Government that said through an affidavit filed by Assistant US Attorney Baker, this matter is un-revealable.
We decline to give any reason to the District Court.
Had the Government given a reason to the District Court, as it now it does here, I think the District Court would have then said the action taken was un-revealable.
But our rights should not be fought for two years later after the litigation began, because they decided to stand on a fundamental principle and not offer any reasons.
Now, let me point out the shift of positions taken by the Government, not because they are inconsistent, but because as we have done in changes of emphasis, the Government has had a perfect right to do it, but they do bear a relationship, because on each one they pose a proposition upon which we take issue.
In the District Court as I indicated before the Government said it had a absolute -- The Attorney General had an absolute, an un-revealable exercise of discretion.
I will address myself to that shortly.
In the main brief here, bearing in mind what the District Court had done in holding the statute not on its face, but as applied to this particular academic situation invalid.
As applied here, the Government took the basic position that the exclusion and deportation cases were exercised of the sovereign power of the Federal Government, the Congress.
Now, if we had that statute before, and if we were not able to give as we think we now have been able to give an alternative constitutional interpretation to the statute and shift the emphasis to the Attorney General's violations of the congressional intent, which I should try to establish and shift the statute to a position which the Attorney General has acted arbitrarily regardless of statutory intent in denying the American citizens access to Dr. Mandel here for these academic discussions.
Now let's say that even a statute of this kind for the reasons indicated by the court below and in the O'Brian case would be invalid.
I would then argue that there is no substantial legitimate governmental interest in excluding a person of Dr. Mandel's economic and philosophical views.
We are not dealing here remember with (a)27 category.
We are not dealing which are the people who are absolutely forbidden.
We are not dealing with the (a)29 category which deals with people who violate laws.
We are dealing with (a)27 D and G.
We aren't dealing with the other (a)27 categories of those people whom congress considered more activist.
Then we present the former member of Communist Party.
I would then argue that this category of persons should not be prevented from meeting with American academicians, universities where no substantial interest of the Government is shown and under the O'Brien case involving the destruction of draft card as the Court remember.
The court did set forth certain tests, and one of them was that there must be a predominating government interest, the otherwise the effect -- the court raised the question of whether the effect was direct or incidental to First Amendment rights.
Then came the question of the least restricted means.
The test referred to in Shelton, but used in other words namely, whether it's essential to a governmental interest in O'Brien.
Now, when the Government filed its brief, its reply brief here which I recited and probably some members of the court had not yet received.
The Government then went back, not possibly as a result of our briefs, and I am not complaining, went back to the original assertion which it had made in the District Court of an unlimited and un-reviewable exercise of executive discretion.
Except it did one more thing as a matter of precaution which it didn't do in the District Court, it gave a reason.
The reason they flagrant abuse of Dr. Mandel's 1968 trip which I think the court will realize is superficial and not agreed to by the State Department and persisted in by the government is really all I have to do is say it's a case of bureaucratic, lower bureaucratic stubbornness.
And, as I say bureaucratic stubbornness, because there is no foundation for the action, for the argument now made by the Attorney General that would happen in 1968, namely the fact that at a cocktail party that Dr. Mandel attended in which an event occurred at the end in which he had nothing to do namely the selling the postage for French students.
This is basically the flagrant abuse that is relied on by the Attorney General in this case.
Chief Justice Warren E. Burger: How do you compare what the government assets here with the power of the Attorney General to suspend deportation.
The challenge --
Mr. Leonard B. Boudin: I think they are they are quite similar powers.
Chief Justice Warren E. Burger: Has that not been supported?
Mr. Leonard B. Boudin: I think it has been supported, but in no case has been supported where the court has found.
I refer to Jay against Boyd and Hintopoulos where there has been a) arbitrary action on the party of Attorney General which we think the court will easily find here, and b) where the First Amendment rights of American citizens are involved.
That's one of the reasons why we began in this case by conceding that the alien's rights are not involved, they don't have the First Amendment rights.
Justice William H. Rehnquist: Mr. Boudin in Jay, the court did refer to the power of Attorney General to suspend the petitioner's unfettered discretion.
Mr. Leonard B. Boudin: I think it it did Your Honor, but I think it found that as a practical matter there was no arbitrary action on the part of the Attorney General.
In other words, the reasons it gave for withholding information were considered sufficient.
And there is always in a whole line of cases beginning with Chinese Exclusion all the way down to Harisiades and so forth, a statement of the very broad powers of Congress.
The question however is, whether there is in any area an unlimited executive power, something we address ourselves to in our brief, or even an unlimited congressional power.
I would wonder for example, although I had intended to turn to this determining in analyzing the executive's action; whether a congressional statute which said that a person who was not in an activist class, but is a celebrated economic, the economist in lots of school.
If Congress had passed a statute saying that the entry into the United States for a brief visit of such a person for the purpose of attending an academic meeting with Professor Richard Falk of Princeton would be forbidden, because Professor Falk has written as one of the editors of American Journal of International Law.
Articles against our opposition, opposition in the Vietnam War.
Is it conceivable that such a statute despite the plenary power would not be stricken down and recognizes an violation of First Amendment rights of professor Falk and I don't want to go into examples, but I would rather move into the questions which I am next addressing myself to.
That is the statute itself and is it acceptable of constitutional construction which would not give the vast powers to the Attorney General suggested and which in fact challenges those vast powers.
Chief Justice Warren E. Burger: Mr. Boudin before you do that, aren't there a number of acts by which the Congress has vested in administrative agencies un-reviewable power to make certain determinations?
I am thinking of the International Claims Commission for one.
Mr. Leonard B. Boudin: I think Mr. Chief Justice, I would distinguish any case and I am not to be familiar with that particular problem.
Although, I know I have been involved in some litigation which may touch on that.
Those don't involve the First Amendment rights of America.
Chief Justice Warren E. Burger: Your point links First Amendment with any effort to grant un-reviewable power?
Mr. Leonard B. Boudin: Exactly, in other words in --
Chief Justice Warren E. Burger: In this case you link it to the First Amendment rights of Americans to listen?
Mr. Leonard B. Boudin: Precisely, I am relying specifically upon three lines of decisions which this court has handed down.
The first is the recognition in Shelton against Tucker and Mr. Justice Frankfurter's concurring opinion and Mr. Justice Harlan in Sweezy.
The special role of the University.
I am warned against being a leadist (ph) here by my colleagues, but the fact is that the University is very important.
I include schools as well, in terms of our democratic system.
The second principle, I rely upon is a line of decisions which range -- I can't go back much further for the moment in De Jonge against Oregon in going up to New York Times against Sullivan and of course the Red Lion case on which I rely specifically.
And that line relates to what maybe a cliché, but if so it's a fundamental one.
Namely, the relationship of the First Amendment to the sovereignty of the people.
As opposed to the governmental sovereignty, sovereign rights which he here claims.
And the third line suggested, I think a few minutes ago, is a line of the right to know which began at least within my memory in Martin against Struthers and moved into the Lamont case which again involved I thought a very great powerful power of the government to refuse the entry of communist material.
But which the court held referred specifically to Mr. Justice Brennan's concurring opinion I believe there, that we were dealing again, not with the rights of the communist who were sending literature, but we were dealing with the rights of the receiver and I distinguish this case from the cases which involved foreign monies coming here or monies going to abroad or Schilling against Rogers the Trading with the Enemy Act cases.
I am dealing exclusively with the question of the First Amendment rights of Americans.
Now, what the Government says in response is that it has a right to be arbitrary.
The executive says, because it says Congress has given it this power.
Before I turn again to the congressional power, let me say that I think another principle, the court has laid down in Stovall and in (Inaudible) and in Red Lion is that the government cannot be arbitrary and I don't have before me, the precise quotation where Mr. Justice White made some reference to the limitations upon the bureaucratic irresponsibility.
It's a very rough paraphrase to us.
The question however is that Congress intends to give this power to the Attorney General.
Now, the Government has said that the statute is read in the way indicated.
Let me add to the construction of the statue that there are two kinds of persons involved in ineligibility, a political ineligibility primarily.
The first is a category on which Congress has passed the complete ban; that's the (a)28 it's (a)27, the (a)28 and the Section F where the President has the power to declare people inadmissible.
The second this is (a)27 category that we are dealing here.
And particularly, the (a)27 D and G.
Now, the question is did Congress intend to give unlimited power to the Attorney General or is there some standard particularly in the light of the First Amendment situation to which we are directing ourselves here, namely the American academic situation.
Are there any limitations at all?
Well, they can be found not in the statutory language, but they can be found in two or three reports of Congress cited by us and by the Government in our briefs which Your Honors will see.
In which the public interest, admittedly a difficult concept, but I am sure applied very often, if the field is not relating to the First Amendment, in which Congress stated that it was in the public interest that the Attorney General exercised his discretionary power.
The alternative was also humanity which I am not suggesting to involve here in main reasons.
Now in addition to that the statistics which I think Mr. Justice Stewart pointed out are really significant, because in 1969, for example, the critical year here, at least for the purpose of this case about 5,000 recommendations were made by American Council abroad for the most part to the Department of Justice.
And that very important administrative practice showed that only nine applications were denied by the Attorney General and our guess, no basis and the Government doesn't have the facts that those nine were probably not cases; probably not cases in which the Secretary of State himself or the persons important to the bureau security council affairs.
So it was important that Dr. Mandel come here and probably cases where only council is involved and probably cases where you had political activist school.
Now I have jumped to the legal analysis here and to the administrative implementation urging again that the court take a narrow view of the powers given here in order to avoid constitutional problem, but I don't want to miss the critical facts, which as usual one misses when he meets the Government's argument on the law.
The critical facts are that the start here is not from Mandel who wanted to come here.
He celebrated and love to live in Europe and to receive the respect of other universities.
Dr. Mandel who came here in 1968 and delivered lectures before 30 American Universities including Princeton, was invited in 1969 to debate Professor Galbraith of Harvard at Stanford University with the administration's approval.
And then followed six other invitations -- and many other invitations of which he accepted six, and where the Americans wanted him, not he who wanted come here particularly.
Now, the applications were denied and it turns out if I could short-circuit it, the applications were denied because of this assumption that somehow rather he had technically violated the conditions of his coming in earlier.
But the American Council and the State Department recognized that this was an error on their part.
They had not told him when they gave him the visas that he was politically ineligible and therefore conditions with entry of acts.
He had assumed that he was eligible as he had the American academicians.
And it was only because he came in not as an eligible, but one whose eligibility was weighed that these conditions which are really very technical and hardly an important state interest were suggested by the American Council for the first time, as a reason for excluding Dr. Mandel and not making a recommendations after his stay.
I was then communicated with, not by Dr. Mandel, I am not a Marxist, we are obviously friends.
I was communicated by the American academic community which said we want this man here and we want to debate with him.
We want to engage --
Justice William H. Rehnquist: Mr. Boudin in view of what you say as the tripartite line of cases you rely on, I take it you would feel case were not as strong if instead of being college professors who wanted him here, it was just some of his relatives or some friends in this case?
Mr. Leonard B. Boudin: Oh, I can clear.
I think it is very important that the First Amendment rights of the academicians involved here, I don't question that at all and I wouldn't just here --.
Chief Justice Warren E. Burger: Do you suggest those rights are greater for academic community people and for others?
Mr. Leonard B. Boudin: I remember Your Honor -- Mr. Chief Justice, I warned myself about leaders and I am not sure.
I do think however that the importance of education, whether at schools or universities as such that the court will treat that aspect very often, how you should make the inception, will treat that aspect differently than it we will treat for example Dr. Mandel's desire to deliver a talk to an unlimited American audience who had not invited him to come here.
And in that sense, I think there are gradations, as we saw in the last several case there, gradations of rights of access to buildings for the labor reasons and gradations of First Amendment rights, at least each case must be considered on its own.
Now, the Attorney General here in his action we think therefore in the light of what I have said is a very sparse congressional history but a very satisfactory administrative practice.
We think is acted arbitrarily and in violation of the First Amendment as well as in violation of a public interest concept and is because Your Honors will recall reading the brief, what I have not said that the Department of State in Washington; when I approached them said representing the academicians, I want a meeting between the University professors and you, writing to Mr. Elliot Richardson then on the Secretary of State, I had known of his interest, the freedom of speech from his articles in the Harvard Law Review many years ago on the Dennis case.
I thought he was a right man to write to.
And the response was that we do recognize that this may have been an error, a misunderstanding between Dr. Mandel and ourselves.
We do recognize the importance of the academic community and its interest in the thing, and finally came the recommendation of the secretary of the state.
Yes, in the interest of freedom of speech and freedom of opinion Dr. Mandel should be admitted and the answer of the Attorney General was, no, and as Your Honor has seen me tracing it, no for no reason; now no for a reason.
Now all of these cases with respect to reviewability that is suggested by the Attorney General.
On that cases in which the Court has denied justiciability, that cases in which the Court has weighed the factors, war power O'Brien and (Inaudible).
One for the individual, the other against the individual.
Foreign policies Zemel and that was very real.
I argued Zemel; I radically lost, but I argued Zemel here and I urged the First Amendment rights on the part of Zemel being, even though the matter was phrased in terms of its individual curiosity to see what would happen in Cuba.
But they were very strong foreign policy reasons urged by the Government before this court, evaluated by this court and upheld by the court.
Is this tactical violation to being at a cocktail party be equivalent of our relations with Cuba and (Inaudible) in Cuba.
In the field of National security again Harisiades and all of these cases received very careful analysis in the court and the court that divided of course in many of those cases.
Even in the field of immigration as I indicated before, the Government is quite right in citing this Mr. Justice Powell's one line statement of that fact that it's a matter of race, but quite I will call delinquent in error in failing to give his concluding line that they did not regard the considerations involved there as being arbitrary and unreasonable and capricious and so we now come down to the conclusion of our problem here; a) no reason given in the court below, b) no foundation in fact suggested and the use of the word 'flagrant abuse' is really a hyperbole which I regret to say that Government adopted from their earlier letter sent by one of the immigration officials.
We have here a situation where the opinion of the Secretary of State which certainly indicates that foreign relations are not affected.
Because if Dr. Mandel for example had been, let us say at the moment, a Soviet Marxist, and Soviets were not allowing our economist to come in.
Or even if we had a position of opposition to the Soviet Government which we wanted to demonstrate, then this court would have to weigh the question, whether the First Amendment rights of the academicians in the universities overbalance this or it doesn't, the state department's decision.
And I suspect it would come out against the universities in such a case.
But we have here a statement that on the history I have given you, in other words attacking the statute and not just as written, but as applied.
We are attacking and we attacked in our complaint the action of the Attorney General is frivolous and is unreasonable and without foundation.
This is real frivolity.
Chief Justice Warren E. Burger: Mr. Boudin, if we follow your theory of this statute that you are reading of this statute, anytime would it not then result that anytime 100 people signed a petition and said they wanted hear from some person generally falling in the class of excludable aliens they would have to be admitted?
If 100 people here said they wanted to hear him?
Mr. Leonard B. Boudin: I don't think Your Honor.
I think each case is going to depend in the end and somewhat you had said earlier on one of the occasion on its own facts.
We have here a case of scholarly discussion at American universities recognized by those universities important for the education of those people.
We don't have ad hoc group saying either sympathetic, but not sympathetic to Dr. Mandel, we would like to hear you.
We have the most eminent professors and the most eminent universities who feel that it's important as I think we all do, important that; that there be a counter discussion, the discussion of issues here.
Justice Byron R. White: Mr. Boudin do you think, the government's case would be stronger or weaker if the Attorney General had said I am refusing entry, because I don't like his views just like the statute says.
Mr. Leonard B. Boudin: Then I think I would be faced with an attack on the statute and I would have a harder burden, but I would attack the statute.
Justice Byron R. White: Is it more arbitrary to give no reason than to a give a reason that I don't like your views?
Mr. Leonard B. Boudin: If the Attorney General had said I am following the statute strictly -- well, I don't think the Attorney General could do that.
The Attorney General in each case is exercising discretion.
Justice Byron R. White: Well, I think he is.
Mr. Leonard B. Boudin: I think the statement -- the problem you are posing Mr. Justice is one in which we are faced with where the statute says, there is an absolute ban; and that would place a burden on me and I would have to meet it is for court --
Justice Byron R. White: Well, the statute does authorize exclusion based on views?
Mr. Leonard B. Boudin: Yes, it does and I would challenge that, but I don't think that I have to challenge that.
Justice Byron R. White: Well, if the Attorney General says, based on views, I am going to keep you out.
That's what I am --?
Mr. Leonard B. Boudin: I think that would be improper, because Congress intended the Attorney General exercised the discretion with respect to the views also.
Congress didn't say --
Justice Byron R. White: So was it constitutional to give him the discretion, but it's unconstitutional or it's important not to exercise?
Mr. Leonard B. Boudin: It depends on how it's exercised.
I think the Attorney General in each one of these cases does exercise discretion, I would assume that so in good faith.
Now, I think all of our situation as I think --
Justice Byron R. White: I take it that you don't think you have to -- I take it you think you can concede that the statute is valid on his face and still win.
Mr. Leonard B. Boudin: But only purposes of winning.
Justice Byron R. White: Well, I understand that.
Mr. Leonard B. Boudin: Well, for the other purpose Your Honor.
Chief Justice Warren E. Burger: That means that every exercise of discretion by an Attorney General under the statute is subject to judicial review?
Mr. Leonard B. Boudin: No, I would not say that.
Well, the question of what is subject judicial review and when the courts will overrule the Attorney General is another problem almost everything is subject to judicial review in this country, but tremendous deference is obviously paid to the views of Congress and even to the Attorney General.
I would say that given a situation where the Attorney General is given a reason, and sometimes giving a reason could be worse than not giving a reason.
And given a reason which this court can say, is absolutely absurd, it's frivolous.
And if the Attorney General for example had given a reason that I had suggest, there another one, that Professor (Inaudible) would recall him is a rather conservative at least by Dr. Mandel's standards, professor of economics had written books criticizing our American Economic Policy, and he wanted Dr. Mandel in his university in the New School of Social Research.
He wanted Dr. Mandel to come here.
It would be frivolous and it would be unreasonable, it would be in violation of the First Amendment rights to deny his right to access to Dr. Mandel.
I don't think we have to take a lot of whole statute, and particularly we will need to do so.
I urged in the court below.
I don't think we have to do so, if we can say a; either that the Attorney General's position is arbitrary and unreasonable one, and that this court have never upheld a decision which it said was unreasonable and arbitrary by the executive branch, or , we say Congress intended there be some standards here, and that one of the things Congress did not intend is that, because of what I call simply bureaucratic stubbornness, the rights of the American academic community should be rejected.
Justice Byron R. White: Isn't it also true this court has never upset a decision to exclude aliens previously?
Mr. Leonard B. Boudin: I think Your Honor is correct, that the Court has never excluded aliens.
But I will say that in no case, in the history of this Court including the Turner case, the famous amicus case argued by Clarence Darrow and Edgar Lee Masters in this Court.
In no case has it been the First Amendment rights of the American citizens that was alleged.
They were never the plaintiffs, poor Mr. Turner.
I guess it was Turner, they confuse with that Turner too.
Poor Mr. Turner was a man who was asserting as an alien his First Amendment rights.
Well, it's a long time, it's pretty late.
I would like to re-argue Turner against Williams, but it's too late, and if Clarence Darrow failed, I would certainly fail.
Chief Justice Warren E. Burger: Thank you Mr. Boudin, thank you Mr. Friedman.