Mandel v. Mitchell

Decision Date18 March 1971
Docket NumberNo. 70 C 344.,70 C 344.
PartiesErnest 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.
CourtU.S. District Court — Eastern District of New York

COPYRIGHT MATERIAL OMITTED

Leonard B. Boudin, New York City (Rabinowitz, Boudin & Standard and David Rosenberg, New York City, of counsel) for plaintiffs.

Lloyd H. Baker, Islip, N. Y. (Edward R. Neaher, U. S. Atty. of counsel) for defendants.

Before FEINBERG, Circuit Judge and BARTELS and DOOLING, District Judges.

DOOLING, District Judge.

The suit seeks a declaratory judgment that on its face and as applied Section 212(a) (28) and (d) (3) (A) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1182(a) (28) (d) (3) (A) is unconstitutional. Section 212(a) (28) of the Act declares ineligible for visas and excludes from admission to the United States aliens who are or at any time were members of described classes of aliens identified with certain leftist and extremist political doctrines; Section 212 (d) (3) (A) authorizes the temporary admission of an ineligible and excluded alien in the unbounded discretion of the Attorney General after the Attorney General approves a recommendation of the Secretary of State or the consular officer that the alien be admitted temporarily despite his ineligibility. Plaintiff Mandel, who had been admitted in the Attorney General's discretion exercised under Section 212(d) (3) (A) in 1962 and 1968, was denied admission in 1969 on the ground that the consular officer had found him ineligible for a visa "because his subversive affiliations," and his "flagrant abuse of the opportunities afforded him to express his views in this country" during his 1968 visit made a favorable exercise of the discretion to admit him unwarranted.

Plaintiff Mandel is joined in his suit by professors of institutions of higher education some of whom had invited him to speak on specified dates in 1969 at specified colleges or universities and at three conferences. Alleging that the plaintiff professors and other citizens desire to have Mandel speak at universities and other forums to hear his views and engage in "free and open academic exchange," that they have to that end invited him to participate in a series of university conferences and public forums, that Mandel has accepted the invitation and that clearing his admissibility in advance of again setting up a schedule of appearances is necessary, plaintiffs charge that Section 212(a) (28) and (d) (3) (A) of the Act is invalid under the First and Fifth Amendments as imposing a prior restraint on constitutionally protected communication, predicating exclusion on belief and advocacy not allied with "unlawful speech or conduct," denying the equal protection of the law in excluding leftists but not rightist extremists, failing to provide due process safeguards for determining ineligibility, and failing to provide standards for the exercise of the Attorney General's discretion to exclude, and, that in the particular case of Mandel, the Secretary and Attorney General have acted arbitrarily without evidence sufficient to support a finding of ineligibility, or to furnish a basis for rejecting the Secretary's recommendation that Mandel be admitted temporarily.

Plaintiffs move for a preliminary injunction restraining the Attorney General and Secretary of State from enforcing Section 212(a) (28) and (d) (3) (A) of the Act as against plaintiffs. Since the injunction sought would restrain the enforcement, operation or execution of an Act of Congress for repugnance to the Constitution, a three judge court is required to pass on the motion and has been designated by the Chief Judge of the Second Circuit, 28 U.S.C. §§ 2282, 2284.

It is concluded that plaintiffs are entitled to the preliminary injunction they seek.

The parties agree that there is no relevant controversy on the facts, and that the facts presented lead directly to the heart of the questions of "standing" and validity that the case presents.

Ernest Mandel is a citizen of Belgium, editor-in-chief of the Belgian Left-Socialist weekly LA GAUCHE, and the author of a two volume text entitled "Marxist Economic Theory" published in 1969. It appears not to be denied that Mandel can correctly be categorized as "an orthodox Marxist of the Trotskyist school," and, in a speech, said to have been given by tape recording at a conference in New York on November 29, 1969, Mandel described himself as "an exponent" of the doctrine of Karl Marx. The text of the speech is resolutely Marxist in its claims (e. g., referring to the trend of working-class initiatives in Western Europe as indicating revolutionary potential, the text continues "And this is why a revolutionary strategy in the Marxist sense of the word is both possible and indispensable, if the new upsurge of working class militancy which is now in full swing in Europe is not to end in defeat as it did in the previous three main periods of upsurge: that at the end of World War I; that during the mid-thirties; and that at the end of World War II"). The speech concludes, in a passage that at once exemplifies Mandel's academic advocacy of revolutionary doctrine and marks its difference from incitement to subversive action:

"This conclusion brings us back to the starting point. What are the agencies of social change in the West today? It is the basic thrust of the productive forces themselves, undermining, eroding, and shaking periodically in a violent way private property, the nation-state, and generalized market economy. It is the inevitable periodic explosions of labor's discontent against its alienation as producer, against the capitalist relations of production at plant level, locally, regionally, or nationally. It is the reemergence of revolutionary consciousness in the youth through the transmission belts of the colonial revolution, the student revolt, the rise of a new generation of revolutionary teachers, scientists, technicians, and intellectuals. It is the potential fusion of that revolutionary consciousness with large masses of workers through campaigns and actions for transitional demands, culminating in workers' control of production. And it is the building of the revolutionary party and the revolutionary International. The better we succeed in combining all these elements, the closer we shall be to a socialist world and to the emancipation of labor and of all mankind!"

It is not claimed that Mandel is a member of the Communist Party or its affiliates, and Mandel has asserted on his visa applications that he is not.

Mandel had been admitted to the United States in 1962 (as a working journalist) and again in 1968, on both occasions—although the Department of State concedes that the fact was not brought home to him—after a finding of political ineligibility and an exercise in his favor of the Attorney General's discretion to admit him temporarily under Section 212(d) (3) of the Act on recommendation of the Department of State. During his 1968 visit Mandel accepted speaking engagements at more than 30 universities or colleges in the United States and Canada (including Harvard, Swarthmore, Antioch, Michigan, Notre Dame and Berkeley); he was at Columbia three times, at the University of Pennsylvania twice, and spoke at the Socialist Scholars Conference at Rutgers. His visit apparently extended from early September until November.

In 1969 Mandel was invited to participate in a conference on "Technology and the Third World" at Stanford University on October 17 and 18 as a speaker and as a panelist to discuss a speech to be given by Professor John K. Galbraith of Harvard; he was the recipient also of faculty requests to speak or lecture during his visit at several universities or colleges including Princeton, Amherst, the New School, Columbia and Vassar, of a student-group request to participate in a conference on social and economic conversion to the demands of a peace-oriented society at Massachusetts Institute of Technology, and he was to speak at a conference arranged by the Bertrand Russell Peace Foundation and the Socialist Scholars Conference on "Agencies of Social Change," his individual subject to be "Revolutionary Strategy in the Imperialist Countries."

Mandel applied in Brussels for a visa on September 8, 1969, to attend the Stanford conference, to leave for the United States on October 14 and stay six days. He was told orally on October 23 and by letter of October 30, 1969, that a visa and waiver had been refused; the letter explained that he had been ruled ineligible for admission under Section 212(a) (28) in 1962, that in 1962 and in 1968 upon Embassy recommendation the Department of State had exercised its discretion to grant temporary admission under Section 212(d) (3), but that the waiver requested of Washington in September had been denied. The Consul advised that a second request for waiver was being forwarded in connection with Mandel's new-filed application of October 22 for a visa to lecture and attend conferences at various institutions. A State Department letter of November 6, 1969, to plaintiffs' counsel explained that the earlier "waivers" were conditioned on conformity to the itinerary, activities and purposes stated in the visa application, that in 1968 Mandel had engaged in activities beyond the stated purposes of his trip, that on that ground a waiver had not been sought on the September visa application but that since Mandel may not have known the conditions on which the earlier visas had been issued, and had now engaged to conform to his stated itinerary and purposes, the Department was reconsidering his case and discussing it with the Department of Justice. On January 27, 1970, the Department of State advised the Bertrand Russell Peace...

To continue reading

Request your trial
8 cases
  • Abourezk v. Reagan
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • March 11, 1986
    ...as a matter of law because it describes the lower court holding reversed by the Supreme Court in Kleindienst v. Mandel. Mandel v. Mitchell, 325 F.Supp. 620 (E.D.N.Y.1971) (three-judge court). In upholding the refusal of the Attorney General to grant a waiver to Mandel from the mandatory exc......
  • Kleindienst v. Mandel 8212 16
    • United States
    • U.S. Supreme Court
    • June 29, 1972
    ...his decision or weigh it against the First Amendment interests of those who would personally communicate with the alien. Pp. 761—770. 325 F.Supp. 620, Daniel M. Friedman, Washington, D.C., for appellants. Leonard B. Boudin, New York City, for appellees. Mr. Justice BLACKMUN delivered the op......
  • Allen v. Milas
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 24, 2018
    ...were entitled to an order enjoining the Attorney General from denying Mandel admission to the United States. Mandel v. Mitchell , 325 F.Supp. 620, 632–33 (E.D.N.Y. 1971). Reversing, the Supreme Court began with the proposition that Mandel had no right of entry and thus no personal right to ......
  • American Academy of Religion v. Napolitano
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 17, 2009
    ...that the Supreme Court reviewed in Mandel had declared these grounds unconstitutional under the First Amendment, see Mandel v. Mitchell, 325 F.Supp. 620, 634 (S.D.N.Y.1971), it was at least arguable that the visa denial, if reviewable, would have faced a more serious First Amendment challen......
  • Request a trial to view additional results
1 books & journal articles
  • Consular Nonreviewability
    • United States
    • Full Court Press AILA Law Journal No. 4-2, October 2022
    • Invalid date
    ...Norman Birnbaum, Robert L. Heilbroner, Robert Paul Wolff, Louis Menashe, and David A. Falk.3. 376 U.S. 254 (1964).4. Mandel v. Mitchell, 325 F. Supp. 620, 629 (E.D.N.Y. 1971).5. The named plaintiff, Attorney General Richard Kleindienst, was confirmed by the Senate on June 12, 1972, two week......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT