Reagan v. Abourezk

PETITIONER:Reagan
RESPONDENT:Abourezk
LOCATION:Wall Street Journal Corporate Headquarters

DOCKET NO.: 86-656
DECIDED BY: Rehnquist Court (1987-1988)
LOWER COURT:

CITATION: 484 US 1 (1987)
ARGUED: Oct 05, 1987
DECIDED: Oct 19, 1987

Facts of the case

Question

Audio Transcription for Oral Argument – October 05, 1987 in Reagan v. Abourezk

William H. Rehnquist:

We will hear arguments, first this afternoon, in Number 86-656, Ronald Reagan versus James Abourezk, and you may proceed whenever you are ready, Mr. Wallace.

Lawrence G. Wallace:

Thank you, Mr. Chief Justice, and may it please the Court, these cases, which were consolidated in the District Court, present questions concerning the denial, on foreign policy grounds, of non-immigrant visas to aliens invited by persons or groups in this country to participate in public or academic discussions.

The denials were based on a provision that appears on page 2 of our brief, Subsection 27, of a list of provisions in Section 1182 of Title VIII, which are provisions or bases for excluding aliens from the issuances of visas.

And, in this instance, they were denied as prejudicial to the public interest or endangering the welfare, safety, or security of the United States.

The Court of Appeals held, and it is not contested in this Court, that foreign policy concerns can be a proper basis for a denial under Subsection 27; that something detrimental to our foreign policy interests would be within the broad formulation of prejudicial to the public interest or endangering the welfare of the United States.

And the statutory issues that remain in the case, are whether that denial can be based on detriment to our foreign policy that flows from the very presence or entry of the alien into this country?

Or whether it must be based strictly on something detrimental about the particular activities in which he plans to engage?

And whether, if that question is answered favorably, to the Government, the authority that we would then have to deny the visas, under Subsection 27, has been abrogated by what is commonly called the McGovern Amendment, which amended another provision of Section 1182, Subsection 28.

Before–

William J. Brennan, Jr.:

May I ask, Mr. Wallace?

I gather you have to persuade us that to engage in activities, is virtually meaningless, do you not?

Lawrence G. Wallace:

–Well, I would not characterize my burden that way, Mr. Justice.

Obviously–

William J. Brennan, Jr.:

Well, what does it mean, do you think?

Lawrence G. Wallace:

–Well, there are two ways of looking at it, that support our position.

The one that has been more commonly used in this litigation is to say that presence or entry into the United States are, themselves, activities.

That is a little difficult to reconcile with the words, “to engage”, in activities, but it is not beyond the pale, in light of the legislative history.

Another way, which I think may be more helpful, is to say that, yes, they are admitted to engage in activities.

And that those activities, while not detrimental to the public interest if engaged in by somebody else, would be detrimental to the public interest, if engaged in by this individual, because it would involve his presence or entry into the United States, to engage in those activities.

William J. Brennan, Jr.:

Well, in this case, as I understand it, there is no evidence, whatever, that they had any intention of engaging in any activities.

This rests, does it not, entirely on the fact that they are members of what, the Communist Party?

Lawrence G. Wallace:

Yes.

Various organizations.

In one instance, the Government of Nicaragua; in the other instance, the Federation of Cuban Women; and in the third instance, a group called the World Peace Council, which was found to be–

William J. Brennan, Jr.:

And by reason of their association of one or the other or more of those organizations, that they were said to be excludable under the Statute?

Lawrence G. Wallace:

–It was by reason of that, coupled with the State Department’s determination that these organizations are instruments of a particular foreign government; and that it would be disadvantageous to our conduct of foreign policy, to admit someone for the purpose of carrying on that organization’s program, in the activities in which they want to engage in the United States.

It would be detrimental to our foreign policy just to extend our hospitality to these individuals, by the issuance of a non-immigrant visa to engage in these activities.

Thurgood Marshall:

Mr. Wallace, it was charged that they were going to engage in those activities in this country?

Lawrence G. Wallace:

That is correct.

I mean, they wished to enter the country to engage in activities.

Lawrence G. Wallace:

I mean, anyone who wants to enter the country wants to engage in activities.

Thurgood Marshall:

Like what?

Making a speech?

Lawrence G. Wallace:

That is correct, and to participate in discussions.

Thurgood Marshall:

Freedom of speech?

Lawrence G. Wallace:

Undoubtedly, when engaged in by someone properly present.

Thurgood Marshall:

There is nothing other than speech involved?

Lawrence G. Wallace:

Our position is there need not be any misconduct in the activities, themselves, for Subsection 27 to apply.

The activities might even be constitutionally protected activities.

But Subsection 27, nonetheless applies, if the presence or entry of the individual to engage in those activities would be detrimental to our foreign policy interests.

And that I–

John Paul Stevens:

Is it critical to your position that the activities be activities that could be attributed to the organizations with which the three people were associated?

Lawrence G. Wallace:

–Well, it–

John Paul Stevens:

You seem to suggest that on an earlier statement?

Lawrence G. Wallace:

–It is a part of our position.

John Paul Stevens:

Well, then, it is not a case of mere presence or mere entry?

Your proof is that these people are engaging in activities on behalf of some organization.

Lawrence G. Wallace:

That is correct.

John Paul Stevens:

That is a different theory than the dissent below, I think.

Lawrence G. Wallace:

Well, the dissent authorizes in its theory, a broader use of Subsection 27, then we are actually making of it.

John Paul Stevens:

So you are not espousing the theory of the dissent?

Lawrence G. Wallace:

Well, I am not disassociating myself from it, but we do not have to go as far as some of the implications of the dissenting opinion.

John Paul Stevens:

Well, you are not arguing that mere presence and mere entry is an activity, within the meaning of Subsection 27?

Or are you?

Lawrence G. Wallace:

Well, that is one of our alternative contentions, yes.

We have the authority to decide that mere entry or mere presence is an activity, that within itself, is detrimental to our foreign policy interests.

But in administering the statute, the fact of the matter is, we look at the activities in which they propose to engage, before making the determination of whether entry or presence would be detrimental to our foreign policy.

But we do so in a very limited way.

In other words, we allow individuals to enter, even though we might deny them entry for this purpose, but we would allow them to enter and we have allowed some of these same individuals to enter… including Olga Finlay… to attend meetings of an international body, such as the United Nations.

We would allow them to enter for limited purposes.

Lawrence G. Wallace:

We would allow them to–

John Paul Stevens:

Is there a finding here, that it was the activities in which they intended to engage that explain the reason for their exclusion?

Lawrence G. Wallace:

–There were affidavits submitted–

John Paul Stevens:

No, I said, was there a finding to that effect?

Lawrence G. Wallace:

–The finding by the District Judge, is that we had facially valid foreign policy reasons for denying their entry, which under this Court’s decision, in Kleindienst v. Mandel, he has no right to look behind and make a finding with respect to–

John Paul Stevens:

I still ask is the facially valid reason the fact that their mere presence or mere entry would be detrimental, or is it, that the activities in which they would engage would be detrimental?

What is the finding?

Lawrence G. Wallace:

–I cannot say that the District Judge’s finding is articulated so as to draw that distinction, as I recall it.

It would be a–

John Paul Stevens:

It would make a difference in this.

Lawrence G. Wallace:

–I am looking at Page 80-A of the Joint Appendix, where the District Court merely says, it has concluded that,

“Facially legitimate reasons exist for denying visas to the four individuals, whose entry is being sought in these actions. “

“And they were not denied entry because of the content of the expected speeches, but because of their personal status as officials of governments or organizations which are hostile to the United States. “

But the affidavits, on which he relies, do state, as part of the reasons why their entry would be detrimental to our foreign policy interests, is because it is entry to function as representatives of… in Mr. Borge’s case, in the case of the Cuban women… of organizations controlled by the Nicaraguan or Cuban governments; and in Mr. Pasti’s case, to further the program of an organization controlled by the Soviet Union.

That is necessarily related to the kinds of activities that they propose to engage in.

But the distinction that we make, with respect to activities, is not that someone submits the speech that he is planning to give, and a board of censors sits at the State Department and reads the speech and decides whether giving that speech is detrimental to our foreign policy interests.

It is a distinction between entry for the limited purposes I started to describe to you… to attend an international meeting of a body that meets in the United States; to conduct bi-lateral discussions with representatives of the United States; humanitarian entry, such as to get medical treatment; to attend a family funeral.

We would allow people in for those purposes, but not extend our general hospitality to them of providing them with a non-immigrant visa, because, as the affidavits explain, in the case of–

John Paul Stevens:

Mr. Wallace, the thing that troubles me is that you are telling me what the affidavits say, but the finding just relates to the personal status of the three people.

I would think that it would apply going to a funeral, that they were not denied because of the content of their expected speeches, but because of their personal status, as officials of governments or organizations, which are hostile to the United States.

I would think that would apply if they wanted to come in and have lunch.

Lawrence G. Wallace:

–But the finding was made based on affidavits that explain the reasons–

John Paul Stevens:

Well, let me just ask you, is it necessary for us to support your position to go behind the finding, and rely on what is in the affidavits, instead of what the finding says?

Lawrence G. Wallace:

–I think that–

John Paul Stevens:

That is your whole argument, is it not?

Lawrence G. Wallace:

–I would say that it is necessary to read the finding in light of the affidavits on which the finding is based, because the finding is very succinctly stated.

The finding is very responsive to this Court’s holding in Kleindienst v. Mandel, that the Courts are not to go behind facially legitimate reasons that have been given.

And he is relying on the affidavits as the facially legitimate reasons, and in a sense, the finding incorporates the affidavits, if I may say so.

I do not think that the District Court’s decision can be read without reference to the affidavits.

John Paul Stevens:

We have the affidavits.

Lawrence G. Wallace:

They are in the Joint Appendix, and the classified ones that he refers to, are in the Appendix to the Petition for Certiorari because they were declassified and reprinted there.

William H. Rehnquist:

Mr. Wallace, when you speak about a finding in this case, actually the District Court granted summary judgment for the Government, did it not?

Lawrence G. Wallace:

That is correct.

William H. Rehnquist:

So you are not talking about finding, in the ordinary sense, of a finding of fact at a bench trial?

Lawrence G. Wallace:

That is correct.

It granted summary judgment.

It concluded that there were no material issues of fact that it had to resolve in light of the facially legitimate reasons given by the Government in this series of affidavits, for the exclusion.

Sandra Day O’Connor:

Mr. Wallace, may I ask whether you agree with the dissent in the Court below, that Kleindienst v. Mandel, necessarily upheld the constitutionality of the exclusion of communists based on their political beliefs?

Was that, do you agree that that was the necessary holding of Mandel?

Lawrence G. Wallace:

I do not read Kleindienst v. Mandel as necessarily holding that.

It said that there was a facially legitimate reason for that particular exclusion, because Professor Mandel had violated restrictions on his visa, in past entries.

And that that was a sufficient basis to uphold the denial of the visa, here, and to override any First Amendment claim that was implicated on behalf of those who invited him.

So, I cannot say that we can read Kleindienst v. Mandel as having resolved that question so definitively, with respect, I have to say that is slightly overstated in that dissenting opinion.

The reasons given in these affidavits do relate to specific foreign policy concerns and we have summarized them briefly, in our brief.

Let me say that with respect to those who would be entering here, as representatives of an organization and to further the purposes of an organization, controlled by the Cuban government, the reference was to our country’s policy of trying to diminish the disruptive influence of the Cuban government in Latin America, that is detrimental to the conduct of our foreign policy.

And that extending hospitality to representatives of that government for purposes of participating in discussions in the United States, would contribute to giving that government an aura of legitimacy, that would enhance that government’s ability to undermine our foreign policy objectives, in Central America.

Thurgood Marshall:

But do you need our Courts for that purpose… to enforce public policy in foreign governments and to prevent foreign governments?

Lawrence G. Wallace:

We did not need the Court and we were not the one who invoked the Court’s jurisdiction.

We were sued in this case, Mr. Justice.

We simply denied visas.

Thurgood Marshall:

You want us to say that the Court can approve the denial of an entry of somebody who is going to make a speech, because the State Department does not like the country or the person.

Lawrence G. Wallace:

Because the State Department thinks that it is detrimental, has concluded that it would be detrimental to our foreign policy to extend our hospitality to that person, with a non-immigrant visa.

And that that was within the authority of the Department of State to do.

With respect to the Interior Minister of Nicaragua, rather similar reasons were given, having to do with the undermining of our efforts to achieve a peaceful settlement of hostilities in Central America, should we, at the time, extend our hospitality to the Interior Minister, of that state, to which we were, to some extent, in an adversarial relationship.

With respect to Mr. Pasti, an active member of the World Peace Council, which the State Department had determined to be a Soviet-controlled organization, at the time, he was coming, that organization was engaged in a vigorous campaign to undermine support within Western Europe for the deployment of American missiles… partly through a campaign of disinformation, that is elaborated upon in an Attachment to one of Undersecretary Eagleburger’s affidavits.

And he was an active member, coming to further the purposes of that campaign which was aimed at achieving unilateral disarmament, to the extent of not deploying those particular missile systems in Europe.

And, obviously, extending our hospitality to him, for that purpose, would have a tendency to encourage that organization’s efforts and contribute to its esprit for that purpose.

These matters change over time, and these are now missiles that are currently the subject of negotiation between the Soviet Union and ourselves, for the possibility of some mutual withdrawal of the missiles.

But these determinations have to be made in the context of the times, in which they actually occur.

I think some further insight into the problems of this case, can be had by looking at the statistics that we collected on page 6 of our brief, in the footnote, which are also based on affidavit in this record.

Lawrence G. Wallace:

And that show, in the 20-year period… and this is footnote 2, on page 6… from 1963 to 1983, Consular officers issued nearly 70 million non-immigrant visas, and denied on either foreign policy or internal security grounds, under Subsection 27, only 519 applications.

And in the most recent times, 1981 through 1983, 6 to 7 million per year have been granted, an average of less than 30 have been denied.

This, in itself, is reflective of the consistent dominant thrust of our foreign policy, which is to encourage in all countries… including our own because reciprocity is a very important consideration in foreign policy… to encourage freedom of travel, through non-immigrant visas, and indeed, even to encourage freedom of immigration.

It is a policy that not only reflects our ideals about free interchange of persons and ideas, but it is further supported from the likelihood of re-examination by the very practical consideration that, in our country, there is already a much greater diversity of views being expressed than is true in many countries.

And it would not be to our ultimate advantage, overall, to be opposing travel by persons who might express diverse views, because we tend to benefit much more from additional views being expressed in other countries through travel, than that it would be at all practical to hope to monitor the expression of views in our country.

We do not know what these 70 million people might say when they arrive here.

There were only a very minute number of people that we had reason to keep out because of foreign policy concerns of the type I mention, with respect to these particular applicants.

We have, in the Joint Appendix, some other examples.

This is on pages 111 to 114, and the earliest examples that became known of the use of denials for foreign policy reasons… most of these do not become known because there is a statutory inhibition on public disclosure of them… but these were three examples that, indeed, had come to the attention of Congress.

One was a denial of a visa to a Mr. Liao, a proponent of an independent Formosa.

And another was a denial to Mr. Otto Skorzeny, a former Nazi SS Officer.

And the objection to him was based on the detrimental foreign policy ramifications of granting our hospitality to him regardless of any particular activities that he might be planning to engage in.

The other mentioned, is Madame Nhu.

The problems that the State Department is faced with, have to do with factions in exile; of factions that may be engaged in armed resistance to governments; deposed former heads of state–

John Paul Stevens:

Mr. Wallace, about the Nazi who was… Skorzeny, I think that you referred to?

Lawrence G. Wallace:

–Certainly.

John Paul Stevens:

That was back in 1959, and is it not true that a few years later, they amended the statute to provide a new section that covered the people of that status?

Lawrence G. Wallace:

People who were associated with the Nazi Regime, during the thirties and World War II, but it does not cover people who engaged in brutality while in office, in other countries at other times, and there are many such people.

John Paul Stevens:

No, but I was just wondering, if you are correctly interpreting 27, and you gave us an example, this Skorzeny, why did they need to enact 33?

They could have used 27?

Lawrence G. Wallace:

Perhaps it was done for emphasis.

They did not necessarily mean that Congress thought that 27 was misapplied with respect to Mr. Skorzeny, and we have taken the position right along, that we can apply it with respect to others who have engaged in physical brutality, which are not embraced while in office, which were not embraced within Subsection 33.

There have been deposed governments in many countries… I do not want to create international incidents by mentioning some of them… where we might very well deny, on foreign policy grounds, the entry of these persons.

And this has not been disputed by the other side, nor do they deny our basic proposition that it is not necessary for the activities to be, in themselves, misconduct, because they point to the case of a Libyan, young person denied entry to study aircraft maintenance and engineering, as a proper example of the use of Subsection 27.

But there is nothing inherently wrong about studying that and certainly having a willing student attends one’s class is a part of academic freedom… the First Amendment interests are implicated in such a case.

The problem is the detrimental consequences to our foreign policy.

In a case like that, where you are dealing with a non-prominent person, the particular nature of the activities looms as a larger consideration.

But in the case of prominent people, such as are involved in our case, what really looms large on the foreign policy call, is whether extending our hospitality to them, at all, is going to be detrimental to our foreign policy?

Let me say that once it is concluded, as we submit, that Subsection 27 authorizes us to exclude persons on these grounds, it seems clear to us, that the McGovern Amendment is not meant to take that away.

It says, on its face, that it applies only to persons otherwise admissible to the United States.

Lawrence G. Wallace:

And the legislative history we have recounted, particularly in connection with an Amendment to the McGovern Amendment, shows that it has always been understood not to diminish the authority that we had under Subsection 27, specifically, the Chairman of the House Foreign Relations Committee made that point, as we recounted in our brief.

I would like to reserve the balance of my time.

William H. Rehnquist:

Thank you, Mr. Wallace.

And now, we will hear from you, Mr. Shapiro.

Steven R. Shapiro:

Mr. Chief Justice, may it please the Court, I think that it is obvious from the Government’s argument that the issues raised in this case are critical ones in a constitutional democracy… whether and to what extent, the government may bar foreign speakers from addressing American audiences in the United States, on issues of obvious and substantial public concern?

As the Government points out and I just want to reiterate, because I think that it is important to an analysis of the case, there are two separate but related statutory questions before the Court today.

One is, whether (a)(27) Section 212(a)(27), applies in the absence of any allegation by the government that the excluded foreign speaker is likely to engage in prejudicial activities, if admitted to the United States?

The second question, which the government barely reached in its argument, is whether the Executive may circumvent the Congressional restrictions embodied in the McGovern Amendment, by using an alien’s organizational membership as the basis for exclusion under (a)(27)?

I must say that I am somewhat flabbergasted by Mr. Wallace’s argument, today, which apparently abandons the principle legal contention that the government has advanced in this case from day one.

And that is, until 30 minutes ago, the government’s position in this case, was that an alien could be excluded, a foreign speaker could be excluded from the United States, based on the contention that his or her mere entry or presence in the United States were prejudicial to the public interest.

That was the government’s phrase not ours, but that the alien’s mere entry or presence in the United States would be prejudicial to the public interest.

That argument, as the Court of Appeals found, as the government now apparently concedes, is simply impossible to square with either the language or the history of (a)(27).

Indeed, the extent to which the government has, at least until today, construed its authority under (a)(27), is illustrated by the example of Nino Pasti.

Pasti is a former NATO General, a former Italian Senator, and he worked in the Pentagon for three years as a liaison between the Italian Armed Services and the United States Armed Services.

In 1983, he was invited to address a disarmament rally on Boston Commons by an American peace group and he was denied the visa on the grounds that the government feared that he would spread disinformation, if permitted to enter the United States, and give his views on the propriety of American missiles in Europe.

The statute that we are dealing with, (a)(27), quite plainly speaks to the requirement of activities.

Byron R. White:

The government has abandoned its prior position in favor of what?

Just how do you understand its argument?

Steven R. Shapiro:

The way that I understand its argument, now, Your Honor, and I must say that there were seeds of this in its brief, is that its previous argument was that it did not need to allege any activities, and indeed, it has not alleged any activities.

Not only is there no finding of prejudicial activities, but by any of the Courts who have ruled on this question below, if you, in fact, look at the affidavits submitted by the government… either their original public affidavits, or their original classified and now declassified affidavits… you will not see any reference to prejudicial activities.

What you will see is a conclusion that the alien’s mere entry or presence in the United States is prejudicial.

What I now understand the government to be saying is, that a claim of mere entry or presence is not sufficient under (a)(27), but we have more, and they say this in their brief, since after all any alien who enters the country necessarily engages in some activity.

And the activities that they cite in their brief, as an illustration of that legal contention are: every alien eats, sleeps, travels in the United States.

Those are activities sufficient to invoke (a)(27).

I think that is equally a fallacious ruling of (a)(27) since (a)(27) does not require some activities, it requires activities prejudicial to the public interest.

And the government has not claimed that the sleeping or eating is prejudicial to the public interest, it is just another way or restating a position, which I think that the government now understands they cannot sustain and that is–

William H. Rehnquist:

Well, I understood the government’s position, particularly with respect to someone like Mr. Borge, as being just a highly placed official of the Sandinista government and anything that he did in this country would be prejudicial, just his presence here, would be.

Steven R. Shapiro:

–Just his presence here would be, you are right, that is exactly their position, Your Honor.

That what he does is–

William H. Rehnquist:

What is your answer to that?

Steven R. Shapiro:

–That what he does is irrelevant.

That merely his presence in the United States is prejudicial.

My answer to that is, a visa denial based on that allegation was never authorized or contemplated by Congress when they adopted Section 212 (a)(27), because Section 212 (a)(27) provides that an alien may be excluded if there is reason to believe that they will engage in prejudicial activities, not if there is reason to believe that their presence in the United States may be prejudicial to the United States’ foreign policy.

William H. Rehnquist:

Then you are saying that there cannot be someone of sufficiently bad omen of our foreign policy that anything that he does in this country would be prejudicial?

Steven R. Shapiro:

I am saying that that is not a (27) exclusion.

As we said, in the Court below, and we continue to believe, there are other provisions of the Immigration and Nationality Act, including Section 212(f) of the Immigration and Nationality Act, which may well permit the government under-certain circumstances to exclude somebody because their mere presence in the United States is prejudicial to foreign policy interests.

But those other Sections of the Act are hinged in by other procedural protections that Congress has provided, namely in the case of 212(f), the requirement of a Presidential finding to make sure that our government is not excluding foreign speakers based merely on a bureaucratic judgment that their speeches in the United States are likely to create problems for American foreign policy interests.

And I think that if you look at the affidavits–

William H. Rehnquist:

Of course, I do not understand the government’s version of why it excluded Borge.

To be his speeches might create problems… just that anything he did here, his mere presence here would create problems.

Steven R. Shapiro:

–I think that the government, in the case of Borge, the government’s position is, that his mere presence in the United States will create problems for us.

And our answer to that, and the answer of the Court of Appeals to that, is that is not what Section 212(a)(27) provides, and that is the only statutory authority that the government has cited in this case.

With regard to Pasti, if you look at the affidavits concerning Pasti, either the public or classified affidavits, it is perfectly clear that the government’s allegation, in that case, was that his presence in the United States would create problems because they did not like what they expected him to say on the Boston Commons about American Pershing Missiles in Europe and he was a person who came to that setting with great credibility, because he was formerly the Chief Nuclear Strategist for NATO.

And they would prefer not to have him in this country, at that time, delivering that message, because it made it more complicated for them to put their missiles in Europe.

I do not think that there is any indication that (a)(27) permits a visa denial on those grounds.

And in terms of the entry or presence, versus activities claim, as the Court of Appeals likewise pointed out, the government’s interpretation of (a)(27) is inconsistent with the statutory scheme of the Immigration Act for a variety of reasons.

One reason being that there are 33 categories of excludable aliens, listed in Section 212 of the Immigration Act.

Congress, by and large, has traded, has categories of exclusion based on status and categories of exclusion based on conduct.

And 212(a)(28), which is the exclusionary provision at issue in Mandel, which says that communists cannot come into the country unless they get a waiver, that is a status exclusion.

And 212(a)(27), with its reference to prejudicial activities, is a conduct exclusion and the burden on the government is to show some evidence of prejudicial conduct in the United States and there was absolutely nothing in the record to sustain that burden.

As Justice Brennan also pointed out, the word, activities, is introduced by a phrase, that says, seeks to enter to engage in activities.

The word, to engage, not only in the abstract is an active verb, it does not make sense to read the language and say that an alien seeks to enter to engage in entry.

That simply does not make sense as a grammatical proposition, but within the Immigration Act, itself, the phrase “to engage” is a phrase that Congress used when it meant to justify, permit an exclusion based on anticipated conduct in the United States.

So, that the Immigration Act, for example, permits the exclusion of an alien who seeks to enter to engage in espionage; seeks to enter to engage in sabotage; seeks to enter to engage in immoral sexual activities.

That is the phraseology that Congress used over and over and over again, in the Immigration Act, and does not support a reading of (a)(27) that an alien seeks to enter to engage in the act of being present in the United States.

It simply does not make sense.

Let me say something as well about the administrative practice that the government cites.

The government makes a variety of claims with regard to past administrative practice.

One being, that over the last 20 years, 70 million people have been issued non-immigrant visas and only 500 or 600 have been denied admission under (a)(27).

With all due respect, that is not an argument that I understand, because to the extent that those 500 or 600 may have been improper, they remain improper regardless of the fact that 60 or 70 million other people may have properly been granted visas.

Steven R. Shapiro:

In terms of concrete illustrations, concrete illustrations, and the government was questioned quite precisely about this in the Court of Appeals… how many times have you denied entry to an alien under (a)(27) based on the alien’s entry or presence in the United States… the claim that their entry or presence would be prejudicial to American foreign policy interests?

The government came up with three examples in the Court of Appeals.

We, by the way, have had no opportunity for discovery, so that we have no idea of what contrary examples may be in the administrative record.

But the government came up with three examples that Mr. Wallace has, again, referred to today.

The example of Mr. Liao; the example of Madame Nhu; the example of Otto Skorzeny.

And aside from the fact that all of them are at least 25 years old, Mr. Liao and Madame Nhu as the Court of Appeals points out… the majority opinion in the Court of Appeals… were, in fact, excluded based upon anticipated activities and that is what the correspondence submitted by the government to the District Court established.

In terms of Otto Skorzeny, the former Nazi General, he may well have been excluded based on his status as a former Nazi, but aside from the fact that one exclusion 30 years ago, is not, I do not think probative of anything, let alone a consistent administrative practice… as Justice Scalia pointed out, in 1978, Congress amended the Immigration Act, to add Section 212(a)(33) that expressly provides for the exclusion, now of former Nazis.

And when they did so, both the Congressional sponsors and the Justice Department, itself, in a supporting letter submitted to Congress… and these can both be found attached to the House Report… referred to the fact that the Nazi exclusion provision that was added in 1978, was added to fill an existing loophole in the law, that previously the administration did not have the authority to keep people out of that sort, or at least Congress did not think that they did.

And Congress wanted to fill the loophole and so they passed the Nazi Amendment.

Byron R. White:

Would you say, Mr. Shapiro, suppose that the claim is that Section 27 permits the exclusion of an alien, where his mere presence, for the purpose of making speeches, would endanger our foreign policy, would you think that Section 27 would permit that?

Steven R. Shapiro:

I do not think that Section 27 permits… well, several things.

I do not think it is what the government has alleged here.

I do not think that it is what–

Byron R. White:

Well, that is not what I asked you.

Steven R. Shapiro:

–I do not think that it is what 27 now says, and to the degree that it is what 27 says, then I think that you would be smack up against a significant First Amendment problem.

And I do not think that there is any need to confront that problem.

Byron R. White:

Well, let us just stick to the statute.

If the government says, well, look, his presence here, for the purpose of making speeches, no matter what he says, if our allies think that we are permitting him in this country to be privy to go around and make speeches, that is just offends them.

Is that outside the reach of the statute, do you think?

Steven R. Shapiro:

I think that that is outside of the reach of the statute, because I do not think that the statute, with its reference to prejudicial activity was discussing speech making in the United States, as Justice Marshall suggested.

And I think that is for very good reason that the government has refrained from taking that position, all throughout this litigation.

The government has never come in, from day one and–

Byron R. White:

Well, they were pretty close to it, in this argument today, saying that they may consider… what they are here for, they are here for making speeches.

Steven R. Shapiro:

–Well, to the extent, as I said, to the extent that the government’s position now is that these people can be excluded because they are here to make speeches, and here to make speeches which the government openly admits, by the way, that it is not a viewpoint neutral judgment… if your question, Justice White, is meant to suggest that the government does not care what these people are saying, that it is the act of making a speech, while present in the United States, circa (a)(27), first of all, the record, itself, does not support that.

If you look at the classified affidavits submitted by Undersecretary Eagleburger with regard to Nino Pasti, for example, it is quite clear that the State Department’s objection is, that at the time that we were engaged in the critical negotiations about the deployment of the American Pershing Missiles in Europe, they anticipated that Nino Pasti would come to the United States and tell people that those missiles were not necessary or appropriate.

To the degree that the government’s position is that it is that anticipated speech that justifies their exclusion under (a)(27), I do not think that (a)(27) provides that and if (a)(27) provides that, I do not think that the Constitution permits that.

And one of the–

Byron R. White:

Well, suppose that we disagree with you on your construction of (27), that the government may deny a visa to a person whose presence here, for the purpose of making speeches, would really cause the government trouble?

Suppose the Section covers that?

Are we foreclosed from reaching that ground here?

Steven R. Shapiro:

–Well, I think, Your Honor, I think that–

Byron R. White:

On what basis did the District Court decide the case?

Steven R. Shapiro:

–Well, that is a hard question for us to answer, as I will explain in a moment.

Byron R. White:

Well, it is hard for us too, and I want you to–

Steven R. Shapiro:

Well, let me give you the background on what happened, having been there since the case–

Byron R. White:

–Well, what does his opinion say?

Steven R. Shapiro:

–What Judge Green’s opinion says, is that the government may not deny visas for content-based reasons.

Byron R. White:

Right.

Steven R. Shapiro:

And having read the public affidavits, submitted by Undersecretary Eagleburger, which in conclusory fashion, simply recited the language of the statute.

It said, I denied these visas, because I determined that their admission would be prejudicial to the public interest.

He said, he read the public affidavits.

They do not satisfy me, and I do not know what they mean.

He then entertained the government’s classified affidavits, in camera, ex parte, without sharing them with us, and he wrote in his opinion… because these were still ex parte classified affidavits… that I have read the affidavits and I am convinced that the government had legitimate and bona fide reasons which he, then, did not explain, because at that point they were still classified.

That is the difficulty in understanding the District Court’s–

Byron R. White:

Well, do you read his opinion as accepting the government’s position that mere presence is enough?

Steven R. Shapiro:

–I think that he accepted the government’s position that mere presence is enough.

I do not think that the Court of Appeals accepted the position that mere presence is enough.

Byron R. White:

Oh, I know that.

Steven R. Shapiro:

And one of the things, the Court of Appeals remanded on two grounds.

And one of the Court of Appeals’ remands was to determine exactly–

Byron R. White:

That is right.

Steven R. Shapiro:

–their position was, that entry or presence is not enough.

It looks to us, from your affidavits, that that is why you kept these people out but since we are sending it back for some other reasons, you might want a better opportunity to explain to the District Court if you had some reasons other than entry or presence, because the Court of Appeals likewise read the current state of the record, as supporting an exclusion based only on entry or presence.

The other difficulty with reading (a)(27), to permit exclusions based on entry or presence, is that it really then does run smack up into the McGovern Amendment, which I want to just discuss for a moment.

There are vastly greater numbers, or there historically have been vastly greater numbers of aliens kept out of the United States under Section (a)(28) rather than (a)(27).

And (a)(28) being the statute that was at issue in Manuel, which basically says, if you are a member of a communist organization or if you advocate the doctrines of communism, you shall be excluded from the United States, unless the Attorney General grants you a waiver.

In 1977, Congress adopted the McGovern Amendment, to promote the principles of the Helsinki Accords as it states in its preambles.

And what the McGovern Amendment essentially says is, we no longer want to keep people out based on this notion of guilt by association.

And so, notwithstanding the fact that aliens may belong to communist organizations, or be affiliated with communist organizations, our presumption is they will now be admitted to the United States, unless the government executive is are prepared to certify that both houses of Congress that national security interests are at stake.

Even if you put the best gloss possible on the government’s affidavits, what you will find, at least with regard to Nino Pasti and the two Cuban women, is that the government’s position is that Pasti is a Member of the World Peace Council and the World Peace Council is affiliated with the Soviet Union.

Steven R. Shapiro:

The Soviet Union is engaged in a propaganda campaign and therefore, Pasti must also be engaged in a propaganda campaign.

There is no specific allegation with regard to Nino Pasti that is independent of an assumption that the government made based on his organizational affiliation.

He is connected to this group and this group is doing bad things, and therefore, we presume that if we allow him into the country, he will do similar bad things.

That is precisely our position, at least is, that is precisely the kind of leap, the kind of presumption, the kind of guilt by association, that Congress meant to prohibit by the McGovern Amendment.

And one of the reasons that I believe that these speakers were excluded under (a)(27), rather than (a)(28), where they would have more naturally belonged, is precisely because the government did not want to have to deal with the rigors of the McGovern Amendment, because the government was not prepared, in fact, to certify to both houses of Congress, that national security would be jeopardized if Nino Pasti were allowed in the United States and permitted to give the speech that he wants to give on the Boston Commons.

William H. Rehnquist:

Well, in terms of the last argument of yours, Mr. Shapiro, is it possible that Pasti’s case could come out one way and Borge’s case come out another?

Steven R. Shapiro:

I think that there are two answers to that.

And this is where there are two statutory issues before the Court.

If the Court agrees with our interpretation of (a)(27), that it requires activities and not mere entry or presence, then I think that all of these visa denials fall, Borge’s included.

If the Court concludes that entry or presence is encompassed within (a)(27), then I think that we still have to deal with the McGovern Amendment.

We would still say that the prejudice, flowing from entry or presence, has to really be tied to the individual not based on organizational membership and at that point, it may be that Borge would be in a different situation than Pasti is and the two Cuban women.

I mean, Borge, there is no doubt that he is a member of the Sandinista Junta.

He is an official of the Nicaraguan government.

Nobody disputes that.

At the very least the allegations connected to him, are connected to him personally.

The allegations connected to Pasti and to Finlay and to Lezcano, are connected to them because of the organizations to which they belong, and that is, we think, forbidden by the McGovern Amendment, regardless of how you decide the other (a)(27) question about entry or presence.

And let me come back to the entry or presence issue for one more moment, then, just debunk this reliance on legislative history.

The government makes a passing nod to the doctrine of plain language that any analysis of the statute has to begin with the language which the Congress has drafted, and it then, for very understandable reasons, wants to get off that language as quickly as possible, because, it, in fact, speaks to activities and not entries or presence.

And where it winds up is in the legislative history.

And the government’s position with regard to the legislative history and it was a position that was echoed by Judge Bork, in dissent, below, is that over the 40 or 50 years that this statute has been developing, there are five or six references in committee reports, to the words, entry or presence, and therefore, that supports the claim that when Congress referred to activities, it really meant to include entry and presence within the term, activities.

As we point out, in our brief, if you in fact, look at the full passages cited by the government and not the isolated phrases that I believe the government takes out of context, you will see that every reference to entry or presence is followed by a reference in the next clause, or the next sentence, to prejudicial activities within the United States.

And that, on the basis of a full and fair reading of the legislative history, it seems quite clear, that what Congress has been consistently concerned about, in (a)(27) and its predecessor statutes, was entry and presence to engage in prejudicial activities.

And (27), if it is linked to anything, it is more closely linked to (29).

That talks about entry to engage in sabotage or espionage.

And that what Congress understood, I think, is that there are some activities that may not rise to the level of sabotage or espionage, but nonetheless are prejudicial activities.

It is a very big leap to go from there to the claim that either no activities are required at all, under (27) despite its language, or that the kinds of activities that Congress meant to prohibit or meant to justify a ban under (27), included speech making.

And when you look at the statements that Senator McCarren made on the floor of the Congress when he introduced the predecessor provision in 1950… in 1952, when Section 212(a)(27) was enacted, there was very little colloquy or conference language about the provision.

And there was more in 1950 when its predecessor’s provision, the Internal Security Act was adopted and what Senator McCarren, quite clearly says, and we cite it in our brief, is that his concern, the concern of Congress, was with aliens who seek to enter or engage after entry, in activities prejudicial to the public interest, and he, in fact, referred to the requirement of overt acts.

And as I have said, previously, this record is totally barren of any allegation that even comes close to that.

Let me raise just a few other points with you.

Steven R. Shapiro:

In terms of… to come back to administrative practice, for a second… the government does not make very much mention of the contemporaneous administrative record, which under standard doctrine of statutory construction is, if anything, more relevant than current interpretations.

In terms of contemporaneous interpretations of (a)(27), there are two things worth noting.

One is a Board of Immigration Appeals decision in 1953, in which the government attempted to exclude a pacifist from the United States and the Board of Immigration Appeals one year after (a)(27) was adopted, said, no, you cannot do that.

You are keeping him out on the basis of status.

And (a)(27) requires activities.

He was, I think, engaged in a speech making tour, Justice Rehnquist.

The BIA in 1953 said that that is not enough, under (a)(27).

The other thing that I want to bring to the Court’s attention, and I say this with regret, but it does not appear in either side’s brief, or in the opinion by the Court of Appeals, are some 1952 regulations by the State Department on (a)(27), which disappeared in 1954.

Since 1954, the State Department has had no substantive regulations interpreting this Section.

But from 1952 until 1954, and this appears at 17 Federal Register, page 11590, and December 19th, 1952.

The Section on (a)(27) says, the provision of Section 212(a)(27) that the Act shall be considered to relate to the ineligibility of aliens to receive visas, because of their purpose, plan, intention or design, whether solely, principally, or incidentally to engage in activities after arrival in the U.S., which would be prejudicial to the public interest, or would endanger the welfare, safety or security of the United States.

Once again, the emphasis on activities after admission, not somebody whose mere entry or presence, because of their status, would create difficulties for the government.

Let me just wind up by making a brief comment about the First Amendment issue in this case.

We raised the First Amendment claim-in the District Court.

It was not reached by the Court of Appeals because of its interpretation of the statutory language.

It is not before this Court, in any real and concrete way.

It was not raised by the government in its cert petition.

But I think it undeniable, that the interpretation and application of these statutes, in these cases,–

William H. Rehnquist:

Well, the government would not be expected to raise it in its petition, would it?

The government does not want to claim that it violates the First Amendment.

Steven R. Shapiro:

–No, what the government did, Your Honor, what the government did, in their petition, in fact, was to drop a footnote on the final page of their brief on the merits, saying that even though, we have not raised the First Amendment question in our questions presented, it was reached by dissent below, it was alleged by the Plaintiffs, and therefore, this Court has jurisdiction, and should reach out to decide it.

What I am saying is that I do not think that it is necessary for this Court to decide the First Amendment question, but I do think that the presence of significant First Amendment claims has to affect the interpretation of the statute.

And that the statute can, and should be interpreted, in a way that minimizes its First Amendment difficulties, and that is not the case, if the statute is interpreted to permit exclusions from the United States, based on a claim that an alien’s substantive speeches within the United States, create prejudice to American foreign policy interests.

And I do not believe, as Justice O’Connor’s question indicated and I was delighted to hear the government’s response, I do not believe this Court, by any means, foreclosed the First Amendment issue in Mandel.

Mandel was a case, in which the excluded foreign speaker was kept out of the United States, because he had violated the terms of a past visa, by engaging in activities that were not permitted under that visa.

Nothing in the holding of Mandel, I do not believe, even remotely suggests that if the government keeps somebody out of the country, because it does not like the speeches, they are likely to give in this country, that that is a facially legitimate and bona fide reason.

And I think that those First Amendment considerations have to necessarily at least be part of the process, of interpreting the statute to conform, not only with constitutional requirements, but to conform with, what I believe, is the clear and obvious intent of Congress, as reflected in the plain language of the statute, and a fairly consistent legislative history.

Thank you, very much.

William H. Rehnquist:

Thank you, Mr. Shapiro.

Mr. Wallace, you have two minutes remaining.

Lawrence G. Wallace:

The Court of Appeals referred to the legislative history of Subsection 27 as interchangeably using references to entry and activities as the basis of concern, and that is, entirely consistent with Judge Harold Green’s saying that it is a distinction without a difference in this context.

And, that, as I tried to relate it to the text, that the thing that can be prejudicial about the activities, is the entry… of the proposed activities, is the entry or presence of the individual who is seeking the visa.

That is the thing that can be prejudicial rather than anything that is malum and say, about the activities that is our reading of our Subsection 27 and the way to reconcile it with the repeated entries, repeated reference to entry or presence in the legislative history of that provision and its predecessors.

The affidavits, in this case, and I refer the Court to Joint Appendix pages 59, 62, and 89, repeatedly say that no one is excluded from this country solely because his views are critical of our foreign policy views or in any way to deny the expression of points of view to the American people.

The reason that one looks to the proposed activities, is to see whether they come within the narrow class for which we would admit someone without extending our general hospitality… the narrow classes that I tried to describe to you… to attend a meeting of the UN; to engage in bilateral negotiations; to get hospital treatment, etcetera.

We can allow people in for limited purposes, but not to extend our general hospitality to them.

My time has expired.

William H. Rehnquist:

Thank you, Mr. Wallace, the case is submitted.