The opinion of the court was delivered by: DOOLING
The suit seeks a declaratory judgment that on its face and as applied Section 212(a)(28) and (d)(3)(A) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1182(a)(28)(d)(3)(A) is unconstitutional. Section 212(a)(28) of the Act declares ineligible for visas and excludes from admission to the United States aliens who are or at any time were members of described classes of aliens identified with certain leftist and extremist political doctrines; Section 212(d)(3)(A) authorizes the temporary admission of an ineligible and excluded alien in the unbounded discretion of the Attorney General after the Attorney General approves a recommendation of the Secretary of State or the consular officer that the alien be admitted temporarily despite his ineligibility. Plaintiff Mandel, who had been admitted in the Attorney General's discretion exercised under Section 212(d)(3)(A) in 1962 and 1968, was denied admission in 1969 on the ground that the consular officer had found him ineligible for a visa "because his subversive affiliations," and his "flagrant abuse of the opportunities afforded him to express his views in this country" during his 1968 visit made a favorable exercise of the discretion to admit him unwarranted.
Plaintiff Mandel is joined in his suit by professors of institutions of higher education some of whom had invited him to speak on specified dates in 1969 at specified colleges or universities and at three conferences. Alleging that the plaintiff professors and other citizens desire to have Mandel speak at universities and other forums to hear his views and engage in "free and open academic exchange," that they have to that end invited him to participate in a series of university conferences and public forums, that Mandel has accepted the invitation and that clearing his admissibility in advance of again setting up a schedule of appearances is necessary, plaintiffs charge that Section 212(a)(28) and (d)(3)(A) of the Act is invalid under the First and Fifth Amendments as imposing a prior restraint on constitutionally protected communication, predicating exclusion on belief and advocacy not allied with "unlawful speech or conduct," denying the equal protection of the law in excluding leftists but not rightist extremists, failing to provide due process safeguards for determining ineligibility, and failing to provide standards for the exercise of the Attorney General's discretion to exclude, and, that in the particular case of Mandel, the Secretary and Attorney General have acted arbitrarily without evidence sufficient to support a finding of ineligibility, or to furnish a basis for rejecting the Secretary's recommendation that Mandel be admitted temporarily.
Plaintiffs move for a preliminary injunction restraining the Attorney General and Secretary of State from enforcing Section 212(a)(28) and (d)(3)(A) of the Act as against plaintiffs. Since the injunction sought would restrain the enforcement, operation or execution of an Act of Congress for repugnance to the Constitution, a three judge court is required to pass on the motion and has been designated by the Chief Judge of the Second Circuit, 28 U.S.C. §§ 2282, 2284.
It is concluded that plaintiffs are entitled to the preliminary injunction they seek.
The parties agree that there is no relevant controversy on the facts, and that the facts presented lead directly to the heart of the questions of "standing" and validity that the case presents.
Ernest Mandel is a citizen of Belgium, editor-in-chief of the Belgian Left-Socialist weekly LA GAUCHE, and the author of a two volume text entitled "Marxist Economic Theory" published in 1969. It appears not to be denied that Mandel can correctly be categorized as "an orthodox Marxist of the Trotskyist school," and, in a speech, said to have been given by tape recording at a conference in New York on November 29, 1969, Mandel described himself as "an exponent" of the doctrine of Karl Marx. The text of the speech is resolutely Marxist in its claims (e.g., referring to the trend of working-class initiatives in Western Europe as indicating revolutionary potential, the text continues "And this is why a revolutionary strategy in the Marxist sense of the word is both possible and indispensable, if the new upsurge of working class militancy which is now in full swing in Europe is not to end in defeat as it did in the previous three main periods of upsurge: that at the end of World War I; that during the mid-thirties; and that at the end of World War II"). The speech concludes, in a passage that at once exemplifies Mandel's academic advocacy of revolutionary doctrine and marks its difference from incitement to subversive action:
"This conclusion brings us back to the starting point. What are the agencies of social change in the West today? It is the basic thrust of the productive forces themselves, undermining, eroding, and shaking periodically in a violent way private property, the nation-state, and generalized market economy. It is the inevitable periodic explosions of labor's discontent against its alienation as producer, against the capitalist relations of production at plant level, locally, regionally, or nationally. It is the reemergence of revolutionary consciousness in the youth through the transmission belts of the colonial revolution, the student revolt, the rise of a new generation of revolutionary teachers, scientists, technicians, and intellectuals. It is the potential fusion of that revolutionary consciousness with large masses of workers through campaigns and actions for transitional demands, culminating in workers' control of production. And it is the building of the revolutionary party and the revolutionary International. The better we succeed in combining all these elements, the closer we shall be to a socialist world and to the emancipation of labor and of all mankind!"
It is not claimed that Mandel is a member of the Communist Party or its affiliates, and Mandel has asserted on his visa applications that he is not.
Mandel had been admitted to the United States in 1962 (as a working journalist) and again in 1968, on both occasions -- although the Department of State concedes that the fact was not brought home to him -- after a finding of political ineligibility and an exercise in his favor of the Attorney General's discretion to admit him temporarily under Section 212(d)(3) of the Act on recommendation of the Department of State. During his 1968 visit Mandel accepted speaking engagements at more than 30 universities or colleges in the United States and Canada (including Harvard, Swarthmore, Antioch, Michigan, Notre Dame and Berkeley); he was at Columbia three times, at the University of Pennsylvania twice, and spoke at the Socialist Scholars Conference at Rutgers. His visit apparently extended from early September until November.
In 1969 Mandel was invited to participate in a conference on "Technology and the Third World" at Stanford University on October 17 and 18 as a speaker and as a panelist to discuss a speech to be given by Professor John K. Galbraith of Harvard; he was the recipient also of faculty requests to speak or lecture during his visit at several universities or colleges including Princeton, Amherst, the New School, Columbia and Vassar, of a student-group request to participate in a conference on social and economic conversion to the demands of a peace-oriented society at Massachusetts Institute of Technology, and he was to speak at a conference arranged by the Bertrand Russell Peace Foundation and the Socialist Scholars Conference on "Agencies of Social Change," his individual subject to be "Revolutionary Strategy in the Imperialist Countries."
Mandel applied in Brussels for a visa on September 8, 1969, to attend the Stanford conference, to leave for the United States on October 14 and stay six days. He was told orally on October 23 and by letter of October 30, 1969, that a visa and waiver had been refused; the letter explained that he had been ruled ineligible for admission under Section 212(a)(28) in 1962, that in 1962 and in 1968 upon Embassy recommendation the Department of State had exercised its discretion to grant temporary admission under Section 212(d)(3), but that the waiver requested of Washington in September had been denied. The Consul advised that a second request for waiver was being forwarded in connection with Mandel's new-filed application of October 22 for a visa to lecture and attend conferences at various institutions. A State Department letter of November 6, 1969, to plaintiffs' counsel explained that the earlier "waivers" were conditioned on conformity to the itinerary, activities and purposes stated in the visa application, that in 1968 Mandel had engaged in activities beyond the stated purposes of his trip, that on that ground a waiver had not been sought on the September visa application but that since Mandel may not have known the conditions on which the earlier visas had been issued, and had now engaged to conform to his stated itinerary and purposes, the Department was reconsidering his case and discussing it with the Department of Justice. On January 27, 1970, the Department of State advised the Bertrand Russell Peace Foundation that the Department of State
"* * * in the interest of free expression of opinion and exchange of ideas, [had] recommended a waiver for Mr. Mandel. The Immigration and Naturalization Service (acting for the Attorney General) responded that a waiver was not warranted."
By letter of February 13, 1970, the Department of Justice (Immigration and Naturalization Service) advised plaintiffs' counsel, after explaining the earlier determination that Mandel "was ineligible * * * because of his subversive affiliations," that
"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.
"Accordingly, when the recent recommendation was made that he be permitted to enter for a third time, it was concluded that the favorable exercise of discretionary authority provided under the Immigration and Nationality Act was not warranted and his temporary admission was not authorized. There is no basis for changing this determination."
The plaintiffs other than Mandel are citizens of the United States who had issued invitations to Mandel in 1969 (i.e., plaintiffs Birnbaum, Heilbroner), or were to participate in programs in which Mandel was also invited to participate (i.e., Chomsky), or wish to have Mandel speak at universities and other forums. It is alleged that plaintiffs are unable to set dates for a program of appearances because Mandel's eligibility status make it impossible to assure his appearance. Plaintiffs have on that basis joined Mandel in the present suit to enjoin enforcement against him of the exclusion provision on constitutional grounds.
The Government opposes the motion on the ground, not challenged, that Mandel is an advocate of the "economic, international and governmental doctrines of world communism" and therefore ineligible to receive a visa under Section 212(a)(28)(D) and also an alien who writes and publishes matter advocating and teaching the doctrines of world communism and therefore ineligible to receive a visa under Section 212(a)(28)(G)(v). The Government's position is that the Attorney General is not required to have factual support for or to justify his discretionary decision not to grant temporary admission since the power to exclude is absolute and waiver of exclusion purely a matter of grace.
To determine the ultimate issue in the case and the dependent issue of "standing" requires first an analysis of the substantive content of Section 212(a)(28) in its relation to the First Amendment, and then a consideration of the effect of the statute's operating only to define occasions for a discretionary exercise of the plainly sweeping power to exclude aliens (Boutilier v. Immigration & Naturalization Service, 1967, 387 U.S. 118, 123-124, 87 S. Ct. 1563, 18 L. Ed. 2d 661; United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 542-544, 70 S. Ct. 309, 94 L. Ed. 317). Section 212(a)(28) is one lengthy part of a set of exclusions and definitions in the Act all of which bear to some extent on the interpretation of Section 212(a)(28). The relevant parts of Sections 101(a)(37), (40), 212(a)(9), (10), (27), (28), (29), (d)(3), 5), (6), 235(c) (8 U.S.C. §§ 1101(a)(37), (40), 1182(a)(9), (10), (27), (28), (29), (d)(3), (5), (6), 1225(c)) are given in the Appendix.
Subsection (a)(28) treats as substantively evil political doctrines, associations and activities (A) anarchy, (B) opposition to all organized government, (C) the Communist Party of the United States, any other totalitarian party of the United States, the Communist Political Association, and their local counterparts, (D) the economic, international, and governmental doctrines of world communism and (F), (G), (i) the overthrow by force, violence or other unconstitutional means of the Government of the United States or of all forms of law, (ii) the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally), (iii) the unlawful damage, injury, or destruction of property, (iv) sabotage, and (v) the establishment in the United States of a totalitarian dictatorship. The existence of valid Governmental power to prevent by anticipation the translation of the proscribed doctrines into the forbidden subversive activities may be considered established at least at the extreme of likely incitement to or production of subversive action, for at that point pure communication is not involved, but the verbal steps that set attack in train are being taken. Dennis v. United States, 1951, 341 U.S. 494, 508, 510-512, 545, 71 S. Ct. 857, 95 L. Ed. 1137 (concurring opinion); Yates v. United States, 1957, 354 U.S. 298, 324-325, 340, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (Black, J., concurring and dissenting); Brandenburg v. Ohio, 1969, 395 U.S. 444, 447, 89 S. Ct. 1827, 23 L. Ed. 2d 430; cf. Scales v. United States, 1961, 367 U.S. 203, 228-229, 81 S. Ct. 1469, 6 L. Ed. 2d 782. Subsection (a)(28), however, is explicit in its selective direction against that which is specifically not active subversion but belief and preachment. It operates not only against present adherence to disfavored political doctrines, associations and programs but also against any past adherence to them. It embraces not advocacy alone but teaching as well, and any affiliation with any organization that either advocates or teaches the doctrines or programs. It reaches not only personal advocacy or teaching but also either writing or publishing or wittingly circulating or printing or displaying (or possessing for any of those purposes) any printed or written matter advocating or teaching the disfavored doctrines or programs; beyond that it extends to membership in or affiliation with any organization so resorting to the printed or written word or its circulation. Present or past Communist party membership or affiliation are also embraced in the subsection.
The Government points to Subsection (a)(28)(D) and (G)(v) as particularly applicable to Mandel. The first part, (a)(28)(D) defines a class whose members are neither anarchists, nor advocates or teachers of opposition to all organized government, nor members of or affiliated with any organization that advocates or teaches that doctrine, nor a member of or affiliated with any Communist or Totalitarian Party (or their predecessor or successor organizations) but who are, or at any time have been, advocates of the economic, international, and governmental doctrines of world communism or advocates of the establishment in this country of totalitarian dictatorship, or who are members of or affiliated with any organization that advocates such communism or totalitarianism either through its own utterances or through publications it either issues or permits or authorizes or finances. The second part, (G)(v), describes those who are or ever have been members of the class of aliens who write or publish, or knowingly circulate, print, display (or possess for those purposes) any written or printed matter advocating or teaching the economic, international, and governmental doctrines of world communism or advocating or teaching the establishment in this country of a totalitarian dictatorship. Because the strictures of the statute thus calculatedly fall precisely upon teaching and advocacy as such, they are, unless their presence in an alien exclusion code alters the result, invalidated by the First Amendment. Brandenburg v. Ohio, 1969, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430; United States v. Robel, 1967, 389 U.S. 258, 262, 88 S. Ct. 419, 19 L. Ed. 2d 508.
The statutory strictures are not relieved of the directness of their impact on interests protected by the First Amendment because they do no more than add to the number of the aliens who may be excluded. In the context in which Section 212(a)(28) functions it operates to exclude only aliens who by every other statutory standard of admissibility are not excludable; it excludes them not for any reason related to their alienage but solely for their present or former political associations, or doctrines, or advocacies, or teachings. The sole and selective effect of the statute is to operate as a means of restraining the entry of disfavored political doctrine, and it is a forbidden enactment. Lamont v. Postmaster General, 1965, 381 U.S. 301, 305, 85 S. Ct. 1493, 14 L. Ed. 2d 398; Cf. Near v. Minnesota, 1930, 283 U.S. 697, 713-721, 51 S. Ct. 625, 75 L. Ed. 1357; Aptheker v. Secretary of State, 1964, 378 U.S. 500, 510-511, 84 S. Ct. 1659, 12 L. Ed. 2d 992; Shuttlesworth v. City of Birmingham, 1969, 394 U.S. 147, 150-151, 89 S. Ct. 935, 22 L. Ed. 2d 162.
The subsection does not deal with subversive activities. Subsections (a)(27) and (a)(29) deal with "activities." Subsections (a)(27) excludes aliens who, it is officially believed, seek to enter "solely, principally, or incidentally" to engage in activities prejudicial to the public interest or to endanger the welfare, safety or security of the United States. Subsection (a)(29) excludes aliens who, it is officially believed, "probably would, after entry," either (A) engage in activities prohibited by the laws of this country relating to "espionage, sabotage, public disorder, or in other activity subversive to the national security," or (B) "engage in any activity the purpose of which is the opposition to, or the control or overthrow of, the Government of the United States, by force, violence, or other unconstitutional means." Subsection (d)(3) operatively contrasts subsection (a)(28) with subsections (a)(27) and (a)(29). Subsection (d)(3) pointedly withholds the discretionary power of temporary admission from the ...