When the Executive Branch exercises their power to exclude an alien on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.
After having been invited to speak at various American colleges, Mandel, an alien who was a resident and citizen of Belgium applied for a nonimmigrant visa to enter the United States. He was a scholar, a professional journalist, the editor in chief of a weekly publication, and the author of a book on Marxist economic theory. Although he was not a member of the Communist Party, he considered himself a revolutionary Marxist, and he advocated the economic, governmental, and international doctrines of world Communism. His advocacy of Communist doctrines made him ineligible for a visa under 212(a)(28)(D) and 212(a)(28)(G) of the Immigration and Nationality Act of 1952, and although his ineligibility was subject to waiver under 212(d)(3)(A) of the Act, the Attorney General of the United States refused to grant such a waiver. In a letter to the alien's counsel, it was stated that the denial of the waiver was based on the conclusion that the alien had flagrantly abused the opportunities afforded him during a recent trip to the United States. Seeking declaratory and injunctive relief, the alien and several American professors sued Kleindienst, the Attorney General in the United States District Court for the Eastern District of New York, and alleged that Kleindienst's refusal to grant a waiver violated Mandel’s First Amendment right to hear his views and to engage him in a free and open academic exchange. A three-judge District Court was convened, upheld the professors' First Amendment claim, and granted declaratory and injunctive relief (325 F Supp 620).
Did Kleindienst violate Mandel’s First Amendment right to hear his views and to engage him in a free and open academic exchange?
The United States Supreme Court reversed the decision of the lower court on the basis the United States Congress had granted Kleindienst the right to exclude aliens from the United States on any legitimate basis and judicial intervention with that policy was not appropriate.