# Mandel v. Mitchell > District Court, E.D. New York · March 18, 1971 · 325 F. Supp. 620 URL: https://www.frixlaw.com/law-library/cases/9788351 ## Case - **Full name:** Ernest MANDEL, David Mermelstein, Wassily Leontief, Norman Birnbaum, Robert L. Heilbroner, Robert Paul Wolff, Louis Menashe, Noam Chomsky, and Richard A. Falk, Plaintiffs, v. John M. MITCHELL, Attorney General of the United States, William P. Rogers, Secretary of State, Defendants - **Court:** District Court, E.D. New York - **Decided:** March 18, 1971 - **Citations:** 325 F. Supp. 620; 1971 U.S. Dist. LEXIS 14143 - **Precedential status:** Published - **Opinion:** Dissent by Bartels - **Judges:** Feinberg, Bartels, Dooling - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed by Kleindienst v. Mandel, 408 U.S. 753 (1972). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9788351 ## Opinion text BARTELS, District Judge (dissenting): In substance, the question posed by this application for injunctive and declaratory relief is whether the inherent sovereign power to exclude aliens from entry into this country must bow to any interference with the right of Americans to hear under the First Amendment. The majority holds that subsections 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) [popularly known as the McCarran Act], are unconstitutional because the “sole and selective effect of the Statute is to operate as a means of restraining the entry of disfavored political doctrine * * * ” and further, that the sovereign power to exclude is irrelevant in this case to the constitutional inquiry because “there is not here any distinct aim of the exercise of that power that is primary and to the attainment of which the restraint of First Amendment interests is sacrificed in a secondary or mediating exercise of power.” Stated in another way, the majority holds that the accused subsection (a) (28) is directed to no end other than the limitation of First Amendment rights. In reaching this conclusion the majority applied to subsection (a) (28) of the McCarran Act the test enunciated in Dennis v. United States, 341 U.S. 494 , 71 S.Ct. 857 , 95 L.Ed. 1137 (1951), proscribing strictures upon speech which merely advocates or teaches the “economic, international, and governmental doctrines of World communism” without incitement to the use of force to accomplish that end; in other words, the “clear and present danger” test. Reaching this conclusion they hold, in effect, that there is no room for the application of the “balancing test” (cf. Speiser v. Randall, 357 U.S. 513 , 78 S.Ct. 1332 , 2 L.Ed.2d 1460 (1958)) and that there exists a “reasonable alternative” (cf. United States v. Robel, 389 U.S. 258 , 88 S.Ct. 419 , 19 L.Ed.2d 508 (1967)). With all due respect, I cannot accept the majority’s conclusion predicated upon this analysis. My difference with the majority stems from the fact that while recognizing the *638 sovereign power to exclude in the interest of self-preservation, they subordinate this interest to the First Amendment interest by applying standards invoked exclusively to strictures upon speech by American citizens and strictures upon the right of American citizens to hear other American citizens. In proceeding in this manner it seems to me that the majority has ignored the crucial fact that subsection (a) (28) serves the important objectives of (1) national security and (2) foreign policy, and that the exclusion of a disfavored political doctrine as expounded in person by an alien is not its aim but only a by-product. Before discussing these two objectives, it is appropriate to note that the constitutionality. of this statute could authoritatively rest upon the long-established principle that the Congressional power to exclude aliens is absolute. 1 From early times the Supreme Court has repeatedly held that no limits could be placed upon the power of Congress to exclude those classes of aliens who were deemed, for reasons sufficient to the Congress, as undesirable for entry into the United States. The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 , 9 S.Ct. 623 , 32 L.Ed. 1068 (1889); Fong Yue Ting v. United States, 149 U.S. 698 , 13 S.Ct. 1016 , 37 L.Ed. 905 (1893); Lem Moon Sing v. United States, 158 U.S. 538 , 15 S.Ct. 967 , 39 L.Ed. 1082 (1895). In United States ex rel. Turner v. Williams, 194 U.S, 279, 24 S.Ct. 719 , 48 L.Ed. 979 (1904), this principle was clearly expounded by the court in validating the constitutionality of an enactment barring alien anarchists from entering the United States even though innocent of evil intent. There the court said: “If the word ‘anarchists’ should be interpreted as including aliens whose anarchistic views are professed as those of political philosophers, innocent of evil intent, it would follow that Congress was of opinion that the tendency of the general exploitation of such views is so dangerous to the public weal that aliens who hold and advocate them would be undesirable additions to our population, whether permanently or temporarily, whether many or few; and, in the light of previous decisions, the act, even in this aspect, would not be unconstitutional, as applicable to any alien who is opposed to all organized government.” (p. 294, 24 S.Ct. p. 724). The majority claims that Harisiades v. Shaughnessy, 342 U.S. 580 , 72 S.Ct. 512 , 96 L.Ed. 586 (1952), indicates that Dennis , not Turner , is the governing standard in the area of alien exclusion. But Harisiades dealt only with the question of deportation of resident aliens. Neither that case nor any other authority supports the conclusion that the Turner principle no longer defines the exclusion power. The continuing validity of the early cases has been repeatedly recognized by later decisions reaffirming the principle that the determination of which classes of aliens may enter and remain in the United States is wholly within the sphere of the political branches of the government. See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 , 70 S.Ct. 309 , 94 L.Ed. 317 (1950); Harisiades v. Shaughnessy, supra; Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 , 73 S.Ct. 625 , 97 L.Ed. 956 *639 (1953); Galvan v. Press, 347 U.S. 522 , 74 S.Ct. 737 , 98 L.Ed. 911 (1954). Thus, in concurring in Harisiades, Mr. Justice Frankfurter observed that “The conditions for entry of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control.” (Emphasis supplied). ( 342 U.S. at 596-597 , 72 S.Ct. at 522 ). Several years later, writing for the majority in Galvan v. Press, supra, Mr. Justice Frankfurter added: “As to the extent of the power of Congress under review, there is not merely ‘a page of history,’ * * * but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. * * * But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.” ( 347 U.S. at 531 , 74 S.Ct. at 743 ). In Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 123 , 87 S.Ct. 1563, 1567 , 18 L.Ed.2d 661 (1967), Mr. Justice Clark remarked: “It has long been held that the Congress has plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” See also Hitai v. Immigration and Naturalization Service, 343 F.2d 466 (2d Cir. 1965), cert. denied, 382 U.S. 816 , 86 S.Ct. 36 , 15 L.Ed.2d 63 (1965); Gordon and Rosenfield, Immigration Law and Procedure, § 2.2(a) (1968); Konvitz, Civil Rights and Immigration 3 (1953). The basis for this exceedingly broad application of the exclusion power is not difficult to ascertain. It is predicated upon the understanding that the power of Congress over admission of aliens touches “basic aspects of national sovereignty, more particularly our foreign relations and the national security.” Galvan v. Press, supra, 347 U.S. at 530 , 74 S.Ct. at 742 . National Security The Legislative and Executive responsibility for national security is the primary theme of the earliest cases rejecting attacks on applications of the exclusion power. See, e. g., The Chinese Exclusion Case (Chae Chan Ping v. United States), supra, and Fong Yue Ting v. United States, supra. In according priority to this interest the courts have done no more than follow the concept of the framers of the Constitution. Madison, often referred to as the father of our Constitution, wrote: “Security against foreign danger is one of the primitive objects of civil society. * * * “ * * * The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.” (Emphasis supplied). The Federalist No. 41, pp. 204-205 (Everyman’s Library 1961). Hamilton repeated the axiom in these words: “The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. *640 This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.” The Federalist No. 23, p. Ill (Everyman’s Library 1961). The early Supreme Court cases accordingly respected the Congressional determination that the entry into this country of certain classes of persons was a form of potential aggression and encroachment which need not be tolerated by a sovereign nation. A study of the Congressional findings which are the basis for the exclusionary provisions herein attacked demonstrates that a similar conclusion must be reached with respect to aliens falling within the proscribed classes. Subsection (a) (28) of the Act tracked, in essence, Section 11 of Title I of the Internal Security Act of 1950, denominated the Subversive Activities Control Act of 1950. Section 2 of that Title set forth fifteen legislative findings derived from information concerning the world Communist movement presented to a number of legislative committees. Among others, Congress found that “(1) There exists a world Communist movement which, in its origins, its development, and its present practice, is a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups (governmental and otherwise), espionage, sabotage, terrorism, and any other means deemed necessary to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization. * -x- -x- * * * “(11) The agents of communism have devised clever and ruthless espionage and sabotage tactics which are carried out in many instances in form or manner successfully evasive of existing law. * * * “(12) The Communist network in the United States is inspired and controlled in large part by foreign agents who are sent into the United States ostensibly as attaches of foreign legations, affiliates of international organizations, members of trading commissions, and in similar capacities, but who use their diplomatic or semidiplomatic status as a shield behind which to engage in activities prejudicial to the public security.” Predicated upon these findings, Congress enacted the substantive provisions of the Act including the ineligibility rules here at issue. Viewed against this background these provisions do not appear to be solely a means of excluding a disfavored doctrine. Instead they manifest a considered legislative judgment that aliens who belong to Communist organizations and who espouse the doctrine of world Communism should not be permitted entry into the United States without prior Executive approval because of the objective threat which they pose to the national security since such individuals are more likely than others to engage in acts of sabotage, civil disruption, and illegal incitement to violence. The majority’s answer to this statement is that United States v. Robel, supra, renders such a judgment invalid because the statute fails to distinguish between protected and unprotected speech in determining the basis of exclusion. But Robel and its forerunner Aptheker v. Secretary of State, 378 U.S. 500 , 84 S.Ct. 1659 , 12 L.Ed.2d 992 (1964), are no authority for this conclusion. Neither involved the entry of an alien and in both cases the strict application of the .“least drastic alternative” doctrine was predicated upon the finding that the provisions there at issue imposed a “substantial burden on protected First Amendment activities” ( 389 U.S. at 268 , 88 S.Ct. at 426 ) because the means chosen to implement the governmental purpose “cut deeply into the right of association” ( 389 U.S. at 264 , 88 S.Ct. at 424 ). In contrast, the impact on the First Amendment rights of American citizens resulting from the enforcement of subsection (a) (28) bears iittle, if any, resemblance *641 to the substantial interference with such rights in Robel and Aptheker . Subsection (a) (28) does not purport to ban the espousal of world Communism by any American. Nor does it seek to ban the importation of books, articles, or pamphlets written by Mandel or any other alien expressing the exact doctrines that Mandel desires to lecture upon or debate about in the United States. If it be suggested that there is a difference between the visual and audio medium, the Act does not prevent the recording and presentation of the very lectures the American plaintiffs desire to hear. And if the excitement of intellectual debate is what is at stake, the plaintiffs may, as they have suggested, secure Mandel’s participation by means of a transcontinental hook-up. While this is not to suggest that the vicarious presence of Mandel is in all respects equivalent to his actual presence, it does serve to illustrate the limited interference with the American plaintiffs’ First Amendment rights here at stake. Cases much closer than Robel and Aptheker in approximating the nature and extent of interference with the instant plaintiffs’ First Amendment rights are Teague v. Regional Commissioner of Customs, Region II, 404 F.2d 441 (2d Cir. 1968), cert. denied, 394 U.S. 977 , 89 S.Ct. 1457 , 22 L.Ed.2d 756 (1969), and Zemel v. Rusk, 381 U.S. 1 , 85 S.Ct. 1271 , 14 L.Ed.2d 179 (1965). In Teague the court upheld a statute and regulations directing the Commissioner of Customs to detain packages originating in mainland China and North Vietnam until the addressee obtained a license authorizing their release. Since a license would not be granted unless payment for the packages was made into a blocked account, the court, in effect, held that the interest of the national government in stemming the flow of currency to certain nations was superior to an American citizen’s interest in receiving a book or a pamphlet prepared in North Vietnam which he could not receive gratuitously and one which the publisher understandably would not send if payment could only be made into a blocked account. Such a ruling substantially forecloses the channels of certain intercontinental communication to the bulk of the American people who, as individuals, might desire information from these Communist nations. The fact that certain publications and films are licensed for importation without restriction as to the method of payments under programs approved by the Librarian of Congress or the National Science Foundation or are licensed in exchange for publications from the United States provides no assurance that one or more publications will be exempt from the Act, or that such publications will be available at any institution, or that any individual will be willing, in order to exercise his rights, to identify himself. See Lamont v. Postmaster General, 381 U.S. 301 , 85 S.Ct. 1493 , 14 L.Ed.2d 398 (1965). That the licensing regulations did not provide for the selective censorship of certain publications does not distinguish it from the instant case for it must be assumed that most of the publications emanating from Communist nations will be in the nature of doctrinal propaganda, just as the majority assumes that those who have espoused the doctrine of world Communism in the past are likely to continue such advocacy upon arrival in the United States. 2 *642 Similarly, in the case of Zemel v. Rusk, supra, which involved a greater diminution in the free exchange of information and ideas than is here presented, the Supreme Court held that First Amendment rights were not even involved. In Zemel the court upheld the action of the State Department in banning travel to Cuba, which it had done pursuant to a statute providing that the Secretary of State may grant and issue passports under such rules as the President shall designate and prescribe for and in behalf of the United States. To the appellant’s argument that the “travel ban is a direct interference with the First Amendment rights of citizens to travel abroad so that they might acquaint themselves at firsthand with the effects abroad of our Government’s policies, foreign and domestic, and with conditions abroad which might affect such policies”, the court answered: “We must agree that the Secretary’s refusal to validate passports for Cuba renders less than wholly free the flow of information concerning that country. While we further agree that this is a factor to be considered in determining whether appellant has been denied due process of law, we cannot aecept the contention of appellant that it is a First Amendment right which is involved. For to the extent that the Secretary’s refusal to validate passports for Cuba acts as an inhibition (and it 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 clothed by ingenious argument in the garb of decreased data flow. * * *. The right to speak and publish does not carry with it the unrestrained right to gather information.” (381 U.S. at 16-17, 85 S.Ct. at 1280-1281). If “travel” to Cuba to obtain information is “action”, it would also appear that “travel” by Mandel to the United States to impart information is likewise “action”. And, if the right to speak and publish does not carry with it the unrestrained right to gather information and ideas for American audiences, then the right to hear does not carry with it the unrestrained right to have foreign citizens orate those ideas in the United States. With respect to the relative degrees of decreased data flow, one must admit that Zemel presents a more sympathetic First *643 Amendment case than the instant one. Whereas in the case at bar we are dealing with a limited obstruction to the exchange of ideas, in Zemel the court sanctioned a virtual ban on informational intercourse with the then sole existing Latin American experiment in Communism. See dissent of Mr. Justice Goldberg, citing Chaffee, Three Human Rights in the Constitution of 1787, 195-196 (1956); The Supreme Court, 1964 Term, 79 Harv.L.Rev. 123, 127 (1965); Note, Resolving Conflict Between the Right to Travel and Implementing Foreign Policy, 1966 Duke L.J. 233 . The holding of, Zemel barring American citizens from witnessing at firsthand the practical operation of Communism in Cuba would seem to dispose of the majority’s argument that the First Amendment requires that the citizens as sovereign have access in person to every teaching and advocacy from all sources. It can hardly be said that the right to hear, as is the case with all First Amendment rights, is absolute and that it may not be limited or regulated by the government in certain circumstances. Cf. Dennis v. United States, supra; Poulos v. New Hampshire, 345 U.S. 395 , 73 S.Ct. 760 , 97 L.Ed. 1105 (1953); Kovacs v. Cooper, 336 U.S. 77 , 69 S.Ct. 448 , 93 L.Ed. 513 (1949). Zemel’s rejection of the “access” argument without nice calculations as to whether the interest supporting the prohibition could have been effected in any more limited manner suggests that not all inhibitions on the free exchange of information and ideas are to be held to the exact standard applied in Robel and Aptheker . While the Robel court held that classification by membership in the Communist Party in America was too broad, it is clear that such classification per se is not invalid even though it imposes some burden upon freedom of speech. In Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1 , 81 S.Ct. 1357 , 6 L.Ed.2d 625 (1961), the Supreme Court affirmed an order of the Subversive Activities Control Board requiring the United States Communist Party to register as a “Communist-action organization” under Section 7 of the Subversive Activities Control Act of 1950. In so doing, the court expressly recognized that registration may entail some burdens on free expression due to the public obloquy associated with such membership. It nevertheless concluded that registration of all members of the Party without regard to the quantum of individual participation was constitutionally justified in view of the substantial danger presented by the Communist Party itself, as evidenced by the legislative findings of fact in Section 2 of the Act. In reaching this determination the court aptly remarked: “But where the problems of accommodating the exigencies of self-preservation and the values of liberty are as complex and intricate as they are in the situation described in the findings of § 2 of the Subversive Activities Control Act — when existing government is menaced by a world-wide integrated movement which employs every combination of possible means, peaceful and violent, domestic and foreign, overt and clandestine, to destroy the government itself — the legislative judgment as to how that threat may best be met consistently with the safeguarding of personal freedom is not to be set aside merely because the judgment of judges would, in the first instance, have chosen other methods.” ( 367 U.S. at 96-97 , 81 S.Ct. at 1410-1411 ). The majority contends that the national security concern manifested in the statute can adequately be protected by subsections (a) (27) and (a) (29) direct-, ly focusing on the potential illegal acts. Obviously, Congress in its legislative judgment, by enacting subsection (a) (28), believed these sections to be insufficient because of the unique and substantial threat to the security of the nation presented by members of the Communist movement who seek entry into this country. Even in domestic cases the danger presented by organizations engaged in illegal advocacy has been held sufficient to impose criminal sanctions *644 with respect to active and knowing members of the Communist Party without a requirement that such member be actually engaged in such illegal advocacy. Scales v. United States, 367 U.S. 203 , 81 S.Ct. 1469 , 6 L.Ed.2d 782 (1961). From this it logically follows that aliens possessing a similar membership in a similar organization can be justifiably excluded under subsection (a) (28). And while it is necessary in wholly domestic cases, such as Scales, Aptheker, and Robel , to make precise judgments as to the extent of the individual’s participation in the organization and his knowledge of the organization’s illegal advocacy before imposing any significant burdens on him, the Government does not have the same opportunity to investigate the quantum and quality of an alien’s participation in foreign organizations; nor does it have the same resources or power to screen the potentially subversive or other illegal activities of aliens seeking to enter this country; nor can the Government be expected to adequately delve into the precise goals or tactics of the many foreign Communist organizations. Persons within its borders are subject to its regulations and legal processes — aliens are not. The legislatively determined clandestine nature of the Communist Party, when operating in a foreign context, effectively precludes the precision of regulation of alien entries required by the majority. It is unreasonable and unrealistic to expect American consuls abroad to make such judgments as to alien members of the Communist movement on an ad hoc basis. Extension of the classification to also include aliens espousing world Communism is justified by similar considerations of secrecy and lack of information and investigative resources concerning the fact of formal affiliation with Communist organizations or concerning their propensity to achieve the aims of their espousal by impermissible means. Another factor to be noted in considering world Communism is that the line dividing lawful speech from illegal incitement is evanescent and, as stated by Mr. Justice Jackson in Harisiades v. Shaughnessy, supra, “it often is difficult to determine whether ambiguous speech is advocacy of political methods or subtly shades into a methodical but prudent incitement to violence” ( 342 U.S. at 592 , 72 S.Ct. at 520 ). A different treatment of aliens with Communist affiliations as opposed to Americans with such affiliations is also supported by the fact that the latter can be expected to possess a greater degree of loyalty and allegiance to the United States than the former. Thus, while the Aptheker and Robel courts would not permit the conclusion that an American citizen automatically becomes a potential public risk by virtue of his mere affiliation with the Communist Party, such a conclusion is valid when applied to an alien who does not possess the same tie to and the same interest in the nation as an American. In short, Congress, in enacting subsection (a) (28), had a right in the exercise of its legislative judgment to recognize the difference between a member of the Communist Party who is already an American and a member of the Communist movement who as an alien seeks entry. It had a right to decide that the risk of potential illegal exploitation and subversive activities is much greater in the latter than the former. Consequently, I cannot agree that the absence of absolute precision in the statutory regulation of the potential dangers of illegal advocacy and subversion by a certain class of aliens is fatal to the instant enactment. Rather, in view of the substantial national interest at stake, the limited nature of the burden on free speech, and the unavailability of meaningful alternatives, I conclude that the exclusion provisions do not cut more deeply into the freedom of speech “than is necessary to deal with ‘the substantive evils that Congress has a right to prevent' ” (Scales v. United States, supra, 367 U.S. at 229, 81 S.Ct. at 1486) and, further, that these provisions are wholly outside the power of this court to control (Harisiades v. Shaughnessy, supra, 342 U.S. at 591 , 72 S.Ct. 512 ). In the hierarchy of priorities the impera *645 tive of national security in dealing with aliens must prevail over limited restrictions upon First Amendment rights. Foreign Affairs Quite apart from protecting the paramount interest of national security, subsection (a) (28) can be amply justified as a tool for the flexible conduct of our foreign affairs. To prevent the priority of First Amendment rights in domestic or internal affairs from distorting our vision as to the vital importance of freedom in the conduct of our foreign affairs, it is necessary to emphasize the distinction. In United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315 , 57 S.Ct. 216, 219 , 81 L.Ed. 255 (1936), the Supreme Court reminds us of this difference in its statement that “It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differences are fundamental, may not be doubted.” The exclusion power of a sovereign nation is one of the most important instruments in its arsenal for the independent conduct of its foreign affairs. Early appreciation of the close relationship between foreign affairs and immigration policy appears in Mr. Justice Gray’s assertion that the power of exclusion was “vested in the national government, to which the constitution has committed the entire control of international relations, in peace as well as in war.” Nishimura Ekiu v. United States, 142 U.S. 651, 659 , 12 S.Ct. 336, 338 , 35 L.Ed. 1146 (1892). It is a truism that the Federal Government, representing as it does all the States, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign governments and that the regulation of aliens is intimately blended and intertwined with the responsibilities of the Federal Government in this field. Hines v. Davidowitz, 312 U.S. 52 , 61 S.Ct. 399 , 85 L.Ed. 581 (1941). See Harisiades v. Shaughnessy, supra, 342 U. S. at pp. 588-589, 72 S.Ct. 512 ; United States v. Curtiss-Wright Export Corp., supra, 299 U.S. at 318 , 57 S.Ct. 216 ; United States v. Pizzarusso, 388 F.2d 8, 9 (2d Cir. 1968), cert. denied, 392 U.S. 936 , 88 S.Ct. 2306 , 20 L.Ed.2d 1395 (1968); Henkin, The Treaty Makers and the Law Makers: The Law of the Land and Foreign Relations, 107 Penn.L.Rev. 903, 917-922 (1959). History has shown that this country, like other nations, has over the year enacted numerous laws and entered into many treaties to attain its foreign policy objectives including the guarantee of rights to the aliens of those countries which grant similar rights to American nationals. 3 The loss of thousands of lives and the expenditure of billions of dollars attest to the fact that the Federal Government has reached the judgment that the continued world-wide growth of the world Communist movement as practiced in its tyrannical form is inimical to the best interests of this nation. In a great measure the world-wide struggle against Communism involves a struggle for the allegiance of persons. That is one reason this country warmly welcomes and grants asylum to defectors from this totalitarian rule from many parts of the world. Another technique for resisting this worldwide movement is to bar admission to this country, even on a temporary basis, of aliens who aid and abet its growth *646 by membership in its organizations in other countries and by espousing its doctrine abroad. In Zemel the Supreme Court sustained passport restrictions on travel to Cuba predicated primarily upon the government’s judgment that a major goal of the Castro regime is to export its Communist revolution to the rest of Latin America, and that travel between Cuba and the other countries of the , Western Hemisphere is an important element in the spreading of subversion (381 U.S. at 14-15, 85 S.Ct. 1271 , 14 L.Ed.2d 179 ). I see little difference in principle between this effort to physically isolate Communist Cuba and the effort to isolate the more general world-wide Communist movement by taking measures to dissuade potential adherents in various nations from supporting such movements. Once it is understood that world Communism is not solely a doctrine but also a movement cutting across national lines, classifications, such as those set forth , in subsection (a) (28), on the basis of adherence to that movement become understandable and justifiable. Obviously, it is in the national interest of the United States to provide its citizens with the greatest freedom of world-wide movement. However, whether a United States citizen may enter a particular country is determined by the government of the country to which entry is sought. Many of these countries are avowedly Communist or, at least, are strongly, if not decisively, influenced by the leaders of world Communism. To induce governments of such countries to adopt the reciprocal position of permitting the entry into, and freedom of speech of Americans in those countries for similar privileges extended to aliens, the government should have the power to exclude members of world Communism as a matter of foreign policy. This power must be entrusted to the Legislative and the Executive branches of the government and not to the courts. The following statement of Mr. Justice Jackson in Harisiades v. Shaughnessy, supra, is illustrative of the principle: “However desirable world-wide amelioration of the lot of aliens, we think it is peculiarly a subject for international diplomacy. It should not be initiated by judicial decision which can only deprive our own Government of a power of defense and reprisal without obtaining for American citizens abroad any reciprocal privileges or immunities. Reform in this field must be entrusted to the branches of the Government in control of our international relations and treaty-making powers.” ( 342 U.S. at 591 , 72 S.Ct. at 520 ). Reverting to the analogy of restrictions on the rights of American citizens to travel to certain Communist countries, the court in Worthy v. Herter, 106 U.S.App.D.C. 153 , 270 F.2d 905, 910 (1959), cert. denied, 361 U.S. 918 , 80 S.Ct. 255 , 4 L.Ed.2d 186 (1959), expressly noted that such a restriction is “in and of itself a foreign policy,” or “at least an instrument of foreign policy,” citing individual examples of restrictions on travel to various countries until those countries released certain Americans who had been imprisoned there. Manifestly, the same holds true for the exclusion of Communist aliens from our country. The relation between the exclusion power and the conduct of foreign affairs demonstrates why the rationale of Robel and Aptheker is inapposite to the instant case. For example, in Robel a more limited statute containing classifications regulating the employment of Communist Party members in defense plants might have been drafted without any objective loss to national security. But to impose a classification limitation upon the exclusion power of Congress or the discretion of the Executive to exclude or admit members of those classes would necessarily restrict, emasculate and dilute the power of the Federal Government to deal in foreign affairs with other governments or their citizens. To validate subsection (a) (28) it is not necessary to conclude that the power to exclude is absolute although the national interest in survival among nations suggests that it *647 must be. Since subsection (a) (28) is a limited exercise of that power amply justified by the interest of national security and the exercise by the Legislative and Executive branches of the Government of their foreign relations power, I conclude that its enactment is constitutional and that any effect upon First Amendment rights of American citizens to hear aliens (if they have such a right) is only incidental and necessary to accomplish the purpose sought to be achieved. 4 First Amendment Due Process The majority assert that while the Executive discretion to admit temporarily those whom the statute declares ineligible may exist in those cases where the exercise of that discretion does not impinge on First Amendment rights, such discretion cannot exist where, as here, such rights are affected. It is argued that no provision is made in the statute to assure that the exercise of the Executive discretion is subject to the protection of due process. However, it is admitted that ultimately due process is not an issue since the Government is without any power to act under subsection (a) (28). Inasmuch as I reach the opposite conclusion that the Government has power to act in the area of subsection (a) (28), it is necessary to make a brief reference to the due process claim. The essence of plaintiffs’ claim is that the procedure adopted by the Government violates First Amendment due process for only a judicial determination, for which there is no provision in the statute, suffices to impose a valid final restraint upon First Amendment rights, citing Freedman v. Maryland, 380 U.S. 51, 58 , 85 S.Ct. 734 , 13 L.Ed.2d 649 (1965), and Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175 , 89 S.Ct. 347 , 21 L.Ed.2d 325 (1968). These cases are in-apposite to the necessity for review in the factual context here at issue. They focused upon the procedure which resulted in an initial decision suppressing expression in the United States by Americans without prior judicial participation or hearing. In essence, the court held in those cases that where judicial decision making is ultimately required, it must be imposed sooner rather than later in an adversary rather than in an ex parte proceeding. There is no basis to extend the application of these cases to require judicial review wherever an administrative decision may have the incidental effect of somewhat hindering an American’s right to hear an excluded alien. The attack here must in reality be focused upon the initial decision by the American Consul, without judicial participation, upon the question of eligibility; it can hardly be directed at the exercise by the Executive of the waiver power, although there are many references made by the plaintiffs to the arbitrary action of the Attorney General. Under the statute the waiver power can be exercised only after the American Consul reaches a final determination of ineligibility. This determination to waive or not to waive ineligibility is based on considerations extrinsic to the eligibility provisions of the statute which have been passed upon by the Consul and is peculiarly concerned with the political conduct of the government. Accordingly, there is little doubt that the option must be entrusted exclusively to the Executive branch of the Government without judicial interference. Cf. Chicago & Southern Airlines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111 , 68 S.Ct. 431 , 92 L.Ed. 568 (1948); United States ex rel. Knauff v. Shaughnessy, supra. A similar conclusion must be reached with respect to the absence of judicial review of the American Consul’s decision upon the question of eligibility but for a different reason. While an alien *648 who has entered this country may be expelled only after procedural due process, an alien on the threshold of initial entry stands on an entirely different footing. As said in United States ex rel. Knauff v. Shaughnessy, supra,, “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” ( 338 U.S. at 544 , 70 S.Ct. at 313 ). Nishimura Ekiu v. United States, 142 U.S. 651 , 12 S.Ct. 336 , 35 L.Ed. 1146 (1892); Ludecke v. Watkins, 335 U.S. 160 , 68 S.Ct. 1429 , 92 L.Ed. 1881 (1947). The requirement that aliens secure a visa from an . American Consul abroad was first adopted as a security measure in 1917. Since that time statutory enactments, administrative interpretations and court decisions have uniformly held that the exercise of the Consul’s determination was beyond judicial interference. “Whether the consul has acted reasonably or unreasonably is not for us to determine. Unjustifiable refusal to visé a passport may be ground for diplomatic complaint by the nation whose subject has been discriminated against. See 3 Moore’s Digest, 996. It is beyond the jurisdiction of the court.” United States ex rel. London v. Phelps, 22 F.2d 288, 290 (2d Cir. 1927), cert. denied, 276 U.S. 630 , 48 S.Ct. 324 , 72 L.Ed. 741 (1928). More recently, the Ninth Circuit Court of Appeals has reminded us that “Congress has conferred upon consular officers authority to issue or withhold a visa. Such determination is not subject to either administrative or judicial review.” Loza-Bedoya v. Immigration and Naturalization Service, 410 F.2d 343, 347 (9th Cir. 1969); United States ex rel. Ulrich v. Kellogg, 58 App. D.C. 360 , 30 F.2d 984 (1929), cert. denied, United States ex rel. Ulrich v. Stimson, 279 U.S. 868 , 49 S.Ct. 482 , 73 L.Ed. 1005 (1929); Licea-Gomez v. Pilliod, 193 F.Supp. 577, 582 (N.D.Ill.1960); United States ex rel. Santarelli v. Hughes, 116 F.2d 613, 615 (3d Cir. 1940); Estrada v. Ahrens, 296 F.2d 690, 692, n. 2 (5th Cir. 1961); cf. Lem Moon Sing v. United States, 158 U.S. 538, 547 , 15 S.Ct. 967 , 39 L.Ed. 1082 (1895); Brownell v. Tom We Shung, 352 U.S. 180, 184, n. 3 , 77 S.Ct. 252 , 1 L.Ed.2d 225 (1956). See generally Rosenfield, Consular Nonreviewability, 41 A.B.A.J. 1109 (1955). In the area of alien exclusion the case for non-judicial review is particularly strong. Flexibility must be granted to the Consul under all sections of the Act in order to adapt the Congressional policy to the variable conditions with which the Consul is from time to time confronted. Frequently his decision to deny a visa is predicated upon confidential information, the disclosure of the sources of which might endanger the public security and in some cases might seriously adversely affect our foreign relations. See Auerbach, The Visa Process and Review of Visa Application, 37 Int.Rel. 305, 309 (1960), and The Administration of the Immigration Laws by the Department of State and the Foreign Service, 36 Int.Rel. 6, 8 (1959). 5 American citizens who desire to hear an excluded alien cannot, it seems to me for reasons of national security and in the interest of the proper conduct of our foreign affairs, demand a judicial review of the alien’s exclusion. This is particularly true when it is realized that *649 the alien himself has no such right. See United States ex rel. Turner v. Williams, supra, 194 U.S. at 292 , 24 S.Ct. 719 , 48 L.Ed. 979 . For the above reasons I conclude that the above subsections are valid and constitutional, and that the complaint herein should be dismissed. . This is a recognized principle of international law. In Nishimura Ekiu v. United States, 142 U.S. 651, 659 , 12 S.Ct. 336, 338 , 35 L.Ed. 1146 (1892), Mr. Justice Gray stated: “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. Vat. Law Nat. Lib. 2, §§ 94, 100; 1 Phillim.Int.Law, (3d Ed.) c. 10, § 220.” I Oppenheim, International Law (8th Ed. Lauterpacht) (1955) § 314; West-lake, International Law, part i, p. 210; IV Moore, Digest of International Law, § 550; Bouve, A Treatise on the Law Governing the Exclusion of Aliens in the United States 3 (1912). . Lamont v. Postmaster General, 381 U.S. 301 , 85 S.Ct. 1493 , 14 L.Ed.2d 398 (1965), is not to the contrary because in that case there was no compelling governmental interest requiring the enactment of the statute there called into question. The right to hear, like the right of association, is not mentioned in the Constitution. Whether it carries the same credentials as the right to speak depends upon future delineation. Upon this subject the words of Mr. Justice White as joined in by Mr. Justice Harlan in the dissent in Robel are significant. “The right of association is not mentioned in the Constitution. It is a judicial construct appended to the First Amendment rights to speak freely, to assemble, and to petition for redress of grievances. *642 [ Footnote omitted.] While the right of association has deep roots in history and is supported by the inescapable necessity for group action in a republic as large and complex as ours, it has only recently blossomed as the controlling factor in constitutional litigation; its contours as yet lack delineation. Although official interference with First Amendment rights has drawn close scrutiny, it is now apparent that the right of association is not absolute and is subject to significant regulation by the State.” 389 U.S. at 282-283 , 88 S.Ct. at 434 . Without attempting to delineate the contours of the derivative contitutional right to receive information, it is to be noted that other recent cases applying this principle have not involved important countervailing governmental interests. Thus it is difficult to find any compelling state interest in vesting arbitrary authority in state college administrators to determine who may or may not accept invitations to speak to faculty and student groups. See Brooks v. Auburn University, 412 F.2d 1171 (5th Cir. 1969); Stacy v. Williams, 306 F.Supp. 963 (N.D.Miss.1969); Smith v. University of Tennessee, 300 F.Supp. 777 (E.D.Tenn.1969); Snyder v. Board of Trustees of the University of Illinois, 286 F.Supp. 927 (N.D.Ill.1968); Dickson v. Sitterson, 280 F.Supp. 486 (M.D.N.C.1968). Similarly, a holding that a state cannot convict a person for possessing obscene material in the privacy of his own home does not interfere with any governmental interest of national moment and was clearly as much founded on the right to privacy as it was on the First Amendment. Stanley v. Georgia, 394 U.S. 557 , 89 S.Ct. 1243 , 22 L.Ed.2d 542 (1969). As in Teague v. Regional Commissioner of Customs, Region II, supra, the governmental interest herein involved is enormously more important than the interests at stake in the other cases. . 28 U.S.C. § 2502 provides that the Court of Claims shall be open to the subjects or citizens of any foreign government which accords to the citizens of the United States the right to prosecute claims against their government in its courts. 22 U.S.C. § 256 grants jurisdiction to foreign consuls over their seamen only where such consuls’ government grants tlie same rights to the United States consul by treaty. 8 U.S.C. § 1253 (g) empowers the Secretary of State to instruct consular officers to discontinue the issuance of immigrant visas to nationals, citizens, subjects or residents of countries that refuse to accept deportees. . Once it is determined that this statute does not on its face violate the First Amendment, it is irrelevant that some legislators might have voted for it with the motive of excluding unpopular political doctrine. United States v. O’Brien, 391 U.S. 367, 382-386 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 (1968). . As a practical problem it should be noted that the requirement of judicial review would present a task of enormous magnitude for the court since, in order to guard against arbitrary visa refusals, it would be necessary to provide a review for all visa refusals regardless of the asserted ground for such refusal. (See 1969 Report of Visa Office of the United States Department of State for precise figures.) To suggest that the problem of rectifying errors would be simple upon the thesis that a review would necessarily be limited to remedy obvious or egregious errors, is unrealistic. It cannot be assumed that arbitrary actions “leap from the record” (of. Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,” 82 I-Iarv.L.Rev. 367 (1969)), especially where the factual background of the case is set in foreign lands having unfamiliar laws, customs and institutions. Of. Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 Yale Law Journal 517, 567 (1966). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9788351. Public record. Not legal advice.