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Kleindienst v. Mandel (Sup. Ct, 1972): Could Excluding Muslim Immigrants Based on Religion Violate Constitutional Rights of US Citizens? Roger Algase

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Few people would argue with the proposition that one of the most important and widely discussed immigration proposals to come out of the entire presidential election campaign and post election transition period is the president-elect's announcement that he will either ban or drastically restrict the entry of Muslim immigrants to the United States.

As almost everyone in America knows, the original version of this plan, first announced a year ago, in December 2015, was a world-wide ban based solely on religious belief. Subsequently, beginning with his August 31, 2016 Phoenix Arizona immigration address, Trump suggested that his original world-wide Muslim immigration ban, based on religion alone, might be transformed into an ideological ban, based on "extreme vetting" of applicants for admission from certain mainly Muslim countries.

Here is a strictly hypothetical example of how such "extreme vetting", to see if a given Muslim would-be immigrant or visitor supports "American values", might work:

(As background, while I cannot claim to be a specialist on this subject, I start with the proposition that Muslim domestic relations law assigns different, though not necessarily superior or inferior, roles to men and women. I also assume that Islamic law, in common with fundamentalist Christianity and Orthodox Judaism, strictly forbids same sex relationships.)

"Do you believe that women should have identical legal rights to men in all aspects of life? Do you support same sex marriage? Oh, you don't believe or support either of these because you are a Muslim?

Well, a lot of us non-Muslims here in America don't believe in equal pay (not to mention reproductive rights) for women either, and not all Americans, including but not limited to fundamentalist Christians, are comfortable yet with same sex marriage, as our Vice-President, Mr. Pence, showed while he was governor of Indiana; but, hey, if your sincerely held Muslim religious beliefs are opposed to the above "American values", sorry about that - no matter how much you are against terror or religious violence in any form, as we understand to be the case with the overwhelming majority of the world's Muslims, we still don't want you in America - Visa Denied.")


Since then, Trump has been less than precise about which plan he intends to follow, if either, so it is still not clear whether Ovid's dictum of 2,000 years ago at the beginning of his great epic poem Metamorphoses:

in nova fert animus mutatas dicere formas/corpora

("I will tell about transformations into new bodies.")

will apply to the president-elect's original proposal of a year ago.

What is clear, however, is that whether the proposed Muslim immigrant ban is based on religion, or has been transformed into a ban based on political belief or lack of adherence to "American values" - as defined by Donald Trump - (or, as may be more likely, some combination of the above), questions will inevitably come up about the effect that banning or restricting Muslim immigrants because of their religion and/or beliefs will have on the First Amendment rights of their US citizen co-religionists to freedom of speech and freedom of religion.

Already, there are far too many, and far too dangerous, signs that banning or restricting entry to the US by Muslim immigrants could have, and indeed are intended to have, a chilling effect on the free exercise of religion or the free expression of political views by Muslim American citizens

These are, for example, expressed in the open letter to the president-elect signed by 42 Constitutional law professors from universities all over America described in my December 27, 2016, Immigration Daily comment.

As shown in the law professors' letter, the new administration may be considering, not merely a ban on Muslim immigrants, but also restrictions on the civil rights and liberties of Muslim US citizens, such as setting up a registry for Muslim Americans, closing or conducting surveillance of mosques, and, most chilling of all, sending Muslim US citizens to "relocation" camps based purely on their religious affiliation as was done, to America's eternal disgrace, with Japanese-American US citizens based on race during WW2.

Therefore, it is helpful to re-examine what is arguably the leading US Supreme Court decision on all of America's modern legal history concerning the interplay between rules concerning the exclusion of immigrants because of their beliefs, and the First Amendment rights of US citizens. This case is Kleindienst v. Mandel, 408 U.S. 753 (Supreme Court, 1972). which I will proceed to discuss below.

The facts in Mandel were as follows:

Ernest Mandel, who sought admission to the US as a visitor, was a citizen of Belgium and a left wing writer who, while not a member of the Communist party, openly described himself as a "revolutionary Marxist" who adhered to the doctrines of world communism.

He applied for a visa in order to give a series of lectures and attend conferences in the US pursuant to the invitation of various university or student organizations. However, he was found to be ineligible for a visa under a statute making any non-US citizen who writes or publishes the doctrines of world communism or in favor of making the Unites States into a totalitarian dictatorship ineligible for admission.

Mandel did not challenge the fact that this statute applied to him. However, the statute also provided for the possibility of a waiver, and the US Department of State had recommended a waiver to the Attorney General (INS).

However, the Attorney General refused to grant the waiver. Mandel then brought an action in a federal district court, joined by several US citizen university professors, claiming that the statutes on which his visa denial were based were unconstitutional denials of their First Amendment rights to freedom of speech and their Fifth Amendment rights to due process and equal protection of the law because they prevented the US citizen professors from meeting and exchanging views with Mandel in person.

The District Court agreed with the plaintiffs and granted their request for an injunction ordering the government to admit Mandel to the United States.

On appeal by the United States, the first issue that the Supreme Court dealt with was whether there was such a thing as a First Amendment right to "receive information and ideas" that could be affected by denial of an opportunity for the USC plaintiffs to meet with Mandel personally (instead of hearing his views by transatlantic phone, which is what actually took place instead).

Justice Blackmun, writing for the majority, suggested that that such a right might very well have been involved in that case:

"...we are loath to hold on this record that existence of other alternatives [to meeting in person] extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access".

The fact that the Supreme Court recognized that, at least in some instances, US citizens have constitutional rights which could be infringed by denying admission to the US to a non-US citizen, would appear to put these rights on a collision course with the plenary power doctrine, which puts admission of non-US citizens to the United States beyond the control of the judicial branch, and makes this subject to the decisions of the "political branches", namely Congress and the Executive, only.

How the Supreme Court resolved this conflict in the Mandel case, and what implications this resolution might have for Muslim (or even non-Muslim) US citizens who might be in danger of losing even more vital and important constitutional rights, according to plans reportedly under consideration by the new administration, such as the freedom to dissent from or protest administration immigration policies, the freedom to attend their own places for worship, or even their freedom from arbitrary arrest and detention in concentration camp-style "relocation centers" without any charges or evidence of individual wrongdoing, will be examined in Part 2 of this three-part series.
_____________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School who has been helping mainly skilled and professional immigrants from diverse parts of the world and ethnic/religious backgrounds obtain work visas and green cards for more than 35 years. Roger's email address is algaselex@gmail.com



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Updated 12-30-2016 at 03:42 AM by ImmigrationLawBlogs

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