Kleindienst v. Mandel

PETITIONER: Richard G. Kleindienst, Attorney General of the United States; William P. Rogers, Secretary of State
RESPONDENT: Ernest E. Mandel, et al.
LOCATION: Stanford University

DOCKET NO.: 71-16
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 408 US 753 (1972)
ARGUED: Apr 18, 1972
DECIDED: Jun 29, 1972
GRANTED: Jan 10, 1972

ADVOCATES:
Daniel M. Friedman - for appellants
Leonard B. Boudin - for appellees

Facts of the case

Ernest E. Mandel was a Belgian professional journalist and editor-in-chief of La Guache, a Belgian Left Socialist weekly publication. He described himself as a revolutionary Marxist, advocating the economic, governmental, and international doctrines of world Communism. Previously, the United States twice allowed Mandel to temporarily visit the United States -- once as a working journalist in 1962 and once as a lecturer in 1968. Both times and without Mandel’s knowledge, the State Department found him ineligible, but the attorney general used his discretionary power under the Immigration and Nationality Act of 1952 to admit Mendel temporarily.

The Graduate Student Association at Stanford University invited Mandel to the United States for six days to participate in a conference. On September 8, 1969, Mandel applied to the American Counsel in Brussels for a nonimmigrant visa to enter the United States. Other persons invited Mandel to additional events, and Mandel filed a second visa application in October detailing a more extensive itinerary. On October 23, the Consul at Brussels informed Mandel that the State Department -- headed by Secretary of State William P. Rogers -- refused his first application. The State Department later recommended to Attorney General Richard G. Kleindienst that Mandel’s ineligibility be waived with respect to his October application. In a letter dated February 13, 1970, however, the Immigration and Naturalization Service stated that Mandel’s 1968 activities far exceeded the scope of that visa and concluded that the Attorney General should not waive Mandel’s ineligibility. Mandel’s address to the conference was delivered by telephone.

Mandel, along with various United States citizens who invited Mandel to speaking engagements, sought declaratory and injunctive relief. A three-judge district court panel held in a 2-1 decision that citizens of the United States have a First Amendment right to have Mandel enter the country and to hear him speak. The court entered a declaratory judgment ruling that the portions of the statute delegating the waiver power to the attorney general were invalid as applied to Mandel; it also enjoined Rogers and Kleindienst from denying Mandel admission to the United States.

Question

  1. Did Attorney General Kleindienst violate the First Amendment rights of the scholars and students who invited Mandel to the United States by refusing to allow Mandel to enter the country?
  2. Is the statute giving Kleindienst this discretionary power unconstitutional on its face?

Media for Kleindienst v. Mandel

Audio Transcription for Oral Argument - April 18, 1972 in Kleindienst v. Mandel

Warren E. Burger:

We'll hear arguments next in number 71-16, United States against Mandel.

Mr. Friedman.

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.

Potter Stewart:

He was a what kind of a Marxist?

Daniel M. Friedman:

A revolutionary.

Potter Stewart:

I thought you said common market at first.

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.

Potter Stewart:

Is he interested in academic life or a political life?

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.