By James R. Edwards Jr. September 2005
James R. Edwards, Jr., Ph.D., is an adjunct fellow with the Hudson Institute, co-author of The Congressional Politics of Immigration Reform, and contributor to several published volumes concerning immigration issues. His writings have appeared in The New York Times, The Washington Times, Human Events, and other publications.
America has often faced the threat of foreigners promoting radical ideologies, including Jacobinism, anarchism, communism, fascism, and now Islamism. It is an unavoidable consequence of mass immigration. The higher the level of immigration, the more likely it is that individuals espousing hatred and violence toward America will gain entry. But whatever the level of immigration, excluding or removing noncitizens from the United States based on their promotion of such beliefs (“ideological exclusion”) can help to protect the country. Historically such efforts have played this role, especially during the 20th century. With the end of the Cold War, Congress effectively repealed ideological exclusion, meaning that only active terrorists on watch lists could be barred, while those promoting the ideologies of such terrorists would have to be admitted. To end this vulnerability, ideological exclusion should be restored, allowing aliens to be excluded or deported not only for overt acts but also for radical affiliations or advocacy. Such grounds for exclusion and removal should be based on characteristics common to the many varieties of extremism, rather than target a specific ideology.
Maintaining control over aliens who wish to enter the United States and over those who already have crossed America’s borders has been a guiding principle of American immigration policy since colonial days. Many of the Founding Fathers, notably many of those who served in the earliest Congresses, sought to ensure that only foreigners who embraced American ideals and republican principles would gain admittance — and it was expected that any who displayed disloyal views after arrival would be deported.
One such policy of exclusion based on an alien’s ideological beliefs came to prominence in the Cold War era, and was effectively eradicated in the 1990 Immigration Act. That law eliminated the 1952 McCarran-Walter Act’s iteration of ideological exclusion. Denounced as a Cold War relic, the use of ideology as a grounds for exclusion met its demise.
However, the advisability of this policy change has been called into question by a new awareness of the wisdom of the Founders and of past congressional immigration controllers in their concern for the beliefs that aliens may harbor. Today, the question has become: Is America left vulnerable because of the virtual elimination of ideological exclusion and the overexpansion of First Amendment protections to noncitizens whose allegiance lies somewhere other than with the United States of America?
Ideological exclusion rightly gives a certain amount of pause because of its nexus between our “nation of immigrants” folklore and “freedom of speech” ideals. While much public invocation of the term “nation of immigrants” to describe America’s immigrant experience is vastly overblown, immigration has indeed played a role in American history that is unique among nations. Though the notion that anybody can become an American oversimplifies the case, the fact is that the United States has exhibited a remarkable willingness and ability to assimilate outsiders.
Likewise, the First Amendment to the Constitution guarantees that Congress shall not infringe upon Americans’ rights to freedom of religion, speech, and press. Americans quite properly hold these rights dear. The Constitution protects these specific rights of Americans for Americans and for America’s benefit. Therefore, to consider where these rights’ appropriate limits lie (because, as the Supreme Court has long recognized, they are not absolute rights) can be uncomfortable.
This Backgrounder begins with a review of exclusion and deportation (also known as removal) policy, highlighting the history of ideological exclusion. Next, it examines the McCarran-Walter ideological exclusion and its demise in 1990. Then, it considers certain parallels between previous concerns that informed exclusionary policies, particularly during the Cold War, and today’s heightened concerns with Islamofascism following the 9/11 attacks. Finally, several policy recommendations are offered.
Exclusion & Deportation in U.S. History
Excluding and removing aliens who exhibited unwanted characteristics has been traditional American practice. Whether by colonial, state, or federal governments, the right to exclude and deport noncitizens has been vigorously exercised in this nation. Indeed, such a right is inherent to the idea of a sovereign nation.
Colonial-Era Exclusion Policies
Even before the United States became a nation, colonial governments placed restrictions on those seeking to settle in their jurisdictions. For example, many colonies rejected foreigners who were likely to become a public charge.1 The British government used the opportunity of colonization to rid itself of thousands of undesirables, including “social misfits, convicts, and men who were driven by desperation to take a chance in the wilds of America.”2 Thus sparked the first grounds for exclusion being written into American law codes, as colonies from the 17th century on took measures to keep out individuals who could not, or would not, support themselves, as well as those who posed a moral or security threat.
America’s founding settlers sought to establish a society; more, a foothold of British jurisdiction in the New World. Harvard’s Samuel Huntington explains:
America is a founded society created by seventeenth- and eighteenth-century settlers almost all of whom came from the British Isles. Their values, institutions, and culture provided the foundation for and shaped the development of America in the following centuries. They initially defined America in terms of race, ethnicity, culture, and most importantly religion. Then in the eighteenth century they also had to define America ideologically to justify their independence from their home-countrymen.3
Huntington notes the characteristic critical attitude of Americans toward immigrants (especially as distinct from settlers). This scrutiny centered on an alien’s character. First as colonies, then as states, early Americans sought to preserve and protect the character of the society they and their forefathers paid so high a price to establish. For example, a Pennsylvania statesman in 1786 decried that “no mode should yet have been adopted for ascertaining the good character of such foreigners as have come to settle among us . . . and we should hold ourselves very deficient in political duty” not to set “an effectual bar against the idle and profligate”4 (italics in original).
Colonial laws to curb the inflow of immigrants of suspect character from becoming part of the newly established society included requirements that ships’ captains supply passenger manifests, duties or bonds imposed on arrivals adjudged as a threat to public order or a burden on society (including non-British in Pennsylvania, for example),5 and forced return of undesirables. As circumstances arose, various approaches were taken in different colonies to control the infusion of undesirables, which included at various times Quakers, convicts (or “gaolbirds”), Catholics, disease carriers, and separatists.6
Old World tensions between Catholics and Protestants, especially given the keen awareness of power struggles and abuses by the religion in power in an age of established denominations, informed measures by which to exclude “papists.” In the eyes of America’s predominantly Protestant community, it hardly seemed prudent to have established a society for religious dissenters from the Old World’s Establishment only to allow a hostile takeover by potential persecutors. Hence, Virginia in 1643 provided for the deportation of Catholic priests within five days of arrival.7
Besides the settlement of victims of European religious persecution, such as French Huguenots and German Palatines, the politics related to established religions factored in. Reaction to the Catholic arrivals “was further intensified by the imperial wars of the eighteenth century, during which Catholic powers and their Indian allies decimated frontier settlements, and by the efforts of Spaniards in Florida to incite slaves to rebel or run away from their masters in Carolina and Georgia.”8 In other words, the close relation between Catholic religious belief and Roman Catholic politics was viewed as likely to influence Catholic immigrants’ ideology and activism against the prevailing Protestant society.
Antebellum Exclusion Policies
Following independence, Americans continued exclusion policies, expanding them in state law. “The new states were unanimous in rejecting . . . Europe’s wastrels and convicts,” turning back “ships carrying transported felons.”9 Exclusion of unwanted new arrivals, deportation of aliens who proved unwanted, and various restrictions on foreigners allowed to stay continued. Many such laws affirmed colonial laws on the books or expanded them. In 1783, Virginia, for example, barred citizenship (then granted by states) to “alien enemies.”10 Nationally, the Articles of Confederation in Article IV kept from “paupers, vagabonds, and fugitives from justice” the privileges of citizenship.11
The Constitution tasked Congress with establishing a uniform naturalization law (Article I, Section 8), while regulation of aliens (and initially, immigration) remained largely a state matter. Events led the Federalist-controlled Congress to act for the preservation of the nascent republic. The French Revolution differed in kind from the American Revolution imposing “liberty” and “equality” with an iron fist, and seeking to spread its radical ideology throughout Europe and even to involve the United States on its side. Clear-headed Americans knew their country must not pick sides between their former ally, now a radical regime, and their former colonizing foe, from which they had won independence.12
The French revolutionary spirit, or Jacobinism, was exported to the New World via immigration, sparking grave foreign and domestic policy crises. Domestically, foreign-born French sympathizers and their ideological message risked the United States’ neutrality. The American tour of Citizen Edmond Genet in 1793 further deepened American political divisions. Abroad, a treaty dispute led to France’s refusal to seat the American ambassador in 1796 and the subsequent seizure of American merchant ships at sea. Thus, Congress enacted the Alien Enemies Act and the Alien Act in 1798.13
The Alien Enemies Act built upon the president’s war powers, authorizing him to apprehend, restrain, secure, and remove alien enemies residing in the United States during times of hostility with their native country. The Alien Act (often linked with the Sedition Act, perhaps the most controversial of the Federalist laws, which targeted newspapers) granted the president discretionary authority to apprehend and deport aliens who might subvert the nation.14 These were the first federal laws directed at safeguarding the nation against aliens, in large part based on their ideology. The Alien Act was repealed, along with the Sedition Act, in the Jeffersonian backlash at perceived Federalist overreach; the Alien Enemies Act remains in force.
Even Republicans (i.e., Jeffersonians) who opposed the Alien and Sedition Acts, notably in the Virginia and Kentucky Resolutions of 1798, shared the core skepticism toward foreigners who lacked republican character and held political views contrary to American ordered liberty. For instance, James Madison backed a residency requirement prior to naturalization, telling the first Congress in 1790 that it was “necessary to guard against abuses. They should induce the worthy of mankind to come, the object being to increase the wealth and strength of the country. Those who would weaken it were not wanted.” He had previously said at the Constitutional Convention that “[h]e wished to maintain the [American] character . . . [by admitting] foreigners of merit and republican principles.”15 Thomas Jefferson expressed doubts about mass immigration by aliens lacking republican virtue: “They will bring with them the principles of the governments they leave . . . or, if able to throw them off, it will be in exchange for an unbounded licentiousness.”16
University of Dallas Professor Thomas West, examining the Founders’ views on immigration, concludes “that every people has a right to exclude aliens that it deems undesirable, and a duty to exclude aliens whose excessive numbers or questionable character might endanger the citizens’ liberty.”17 His analysis of the historical record led him to write, “None of the Founders gave a theoretical account of the right of a political community to exclude would-be immigrants. That is because such a right was obvious to all as an inference from the general principles they all shared.”18 In fact, despite Jefferson’s election as president in 1800, the Republican takeover of Congress, and repeal of the Alien Act, Jeffersonians “used the [Alien Enemies] Act’s provisions to intern and neutralize unnaturalized British immigrants during the War of 1812.”19
Early Federal Exclusion Legislation
Most exclusion and removal laws operated at the state and local level throughout the antebellum period. Undesirable aliens were categorized largely the same as they had been during colonial days.20 However, Congress enacted the first federal exclusion law on March 3, 1875. This law prohibited the entry of alien criminal convicts and prostitutes, responding to reports of immigrants arriving who were paupers, convicts, insane, unable to support themselves, and Chinese women “brought for shameful purposes.” The 1875 law exempted from exclusion aliens convicted solely on political charges.21
In 1882, Congress added to criminals and prostitutes as exclusionary grounds both mental defectives and likely public charges. The Chinese Exclusion Act also became law that year, which cut off Chinese immigration because of low-wage Chinese workers flooding the American labor market. As a further deterrent, the Act withheld the privilege of naturalization from Chinese immigrants. The Chinese Exclusion Act remained in force until 1943. In 1891, another exclusion law barred admittance to aliens who were insane, infected with contagious disease, practiced polygamy, or convicted of a crime of moral turpitude.22 It should be noted that polygamy was largely an ideological characteristic. Although it was a criminal act with religious connotations, it reflected an ideological worldview.
Besides a late 19th century rise in immigration levels that fed societal upheaval, including immigrant labor unrest and detrimental economic effects on American workers, foreign-born political radicals stirred public concern. Beyond urban machine politics that relied on alien grist and rising religious differences between largely Protestant natives and Catholic immigrants, alien troublemakers — anarchists — were afoot on American soil. Tichenor says:
The 1886 bombing of Haymarket Square in Chicago occurred during a national strike initiated by the Knights of Labor, but its hasty attribution to seven anarchists of whom six were immigrants persuaded many Americans that terrorism, labor upheaval, and political radicalism originated abroad.23
President William McKinley, who had campaigned on a platform of tariffs and “big tent” themes directed at immigrants (“America for Americans, native and naturalized”), fell to an assassin’s bullet in 1901. Leon Czolgosz, called “an anarchist of American birth but obviously foreign extraction,” sparked congressional action to add anarchists to the exclusion list.
The 1903 law provided for exclusion and deportation of alien anarchists — those foreigners who believe in or “advocate the overthrow by force of violence of the Government of the United States or of all governments or of all forms of law, or the assassination of public officials.” The 1903 Act also both bolstered public health exclusions and provided for limited exceptions for certain diseased aliens.24 Higham reports that the first alien removed under this law was John Turner, “a mild-mannered English anarchist who made his second trip to the United States in 1903, [who] was arrested by a bevy of secret service men and deported before he had a chance to speak in public.”25 In other words, the new exclusion law barred aliens on the basis of ideological views, as had the Alien Acts just over a century earlier.
Congress further widened exclusionary grounds in 1907, including admitted criminals. It expanded such categories of barred foreigners to include “imbeciles,” those carrying tuberculosis, and “feeble-minded persons,” as well as persons whose mental or physical weaknesses affected their ability to support themselves. Again in 1917, exclusion laws were bolstered — this time, by the addition of a literacy test for aliens over 16 years of age. Other 1917 exclusions included aliens “of constitutional psychopathic inferiority” and chronic alcoholics, stowaways, vagrants, and aliens who had been deported.26 Wartime concerns led to further restrictions of foreigners based on their ideological, political, and radical beliefs and activities. Maguire writes that World War I led to
. . . legislation prohibiting the entry of anarchists, subversives and others dangerous to national security [being] recodified. Further attention was also given to prohibiting the entry of those engaged in sabotage, or those engaged in writing, publishing, and otherwise advocating proscribed activities. Also excluded were aliens who were members of associations involved in the circulation of such material.27
A realistic, security-conscious policy thus was instituted to protect the nation from the dangerous beliefs, and actions prompted by those beliefs, of people who did not belong to the body politic of the United States and therefore could not claim rights to this nation’s protection.
Socialist, anarchist, and communist organizations, such as the Industrial Workers of the World, generated labor strikes, riots, and bombings, as well as disseminating radical propaganda, in wartime and postwar America. Foreigners held prominent roles in these groups’ leadership. The alien exclusion and deportation laws enabled U.S. authorities to fight back against the alien threat that came to be known generally as the Red Scare. For example, 44 aliens were held in connection with a 1919 strike in Washington State and prosecuted for deportation; three actually were deported.28
U.S. Attorney General A. Mitchell Palmer — his own home the target of a radical’s bomb — ordered the investigation of radical organizations. One group, the Union of Russian Workers, identified itself as communist, atheist, and anarchist. Police searches of such groups turned up evidence, including radical literature and, in some instances, bomb-making material.29 Arrests by the hundreds followed in what were called the Palmer raids, but few deportations ensued. More than 6,000 deportation warrants were issued, with about 4,000 served on alien communists and anarchists. Just over 500 alien radicals actually left the country of the 1,119 ordered deported.30
Arguably, exclusionary laws’ bark was worse than their bite, in practice. Nevertheless, even if they were applied less vigorously than they might have been, these laws helped safeguard America through the time of the Bolshevik revolution, the rise of Nazism, communism, and fascism.
World War II, the Cold War, and Beyond
Ideological assaults from foreigners continued after World War I and the Palmer raids. Immigrants provided fertile soil for recruiting for advocates and activists of foreign extremist causes. In fairness, while many immigrants embraced the radical ideas, others sought affiliation with people of their own ethnic and cultural origins. However, after 1920s immigration restrictions were enacted, “Communist activity became more open and militant” in the Depression Era, leading Rep. Hamilton Fish’s congressional committee to recommend the outright exclusion of communists under U.S. immigration law.31
Soviet communists sought to infiltrate the United States and to undermine it politically, as The Venona Secrets makes plain. Throughout the 20th century, the Communist International, or Comintern, directed spies and recruitment and propaganda activities on American soil from the Soviet Union. For example, the Comintern in 1936 ordered “‘a campaign . . . in the shortest possible period among the members of the CP [Communist Party] so that they will do everything in their power to become citizens of the USA,'” while average members with immigration problems were told to leave the party.32
Communist Russia took advantage of the massive inflow of Eastern Europeans that occurred before the 1920s, when U.S. immigration restrictions were adopted and immigration levels thus fell precipitously. The Communist Party in America at the time of Whittaker Chambers’s joining was
. . . overwhelmingly foreign-born. Only one out of seven Party members spoke English well enough to be in an English-speaking branch. The other six out of seven were members of branches that spoke their native language — three-quarters of them came from the former Tsarist Empire.33
Hitler’s Nazi Party took power in Germany in the 1930s, with war breaking out in Europe. The Nazi war machine, Mussolini’s regime in Italy, Soviet communism pushing for world influence, as well as Imperial Japanese designs pressing in Asia, presented the United States with a foreign policy handful. A 1939 Supreme Court ruling in Kessler v. Strecker held that alien membership in a proscribed group only applied to present membership. Congress soon made it clear that past membership would be grounds for excluding aliens for ideological reasons. A 1940 law barred foreigners who had belonged to a subversive organization in the past, as well as requiring aliens in the United States to register and be fingerprinted. Another law denied a visa to and the entry of foreigners whose planned activities would “endanger the public safety.”34
Even before the United States was drawn into World War II, the domestic threat became more serious. As tensions mounted, ideological exclusion and removal, as well as alien registration and control laws, became all the more important tools for the U.S. government to have at hand.
Secret intelligence operations by the U.S. military, known as MAGIC, intercepted and decoded Japanese diplomatic messages beginning in the late 1930s. These communications evidenced the extent of Japan’s espionage on American soil. By late 1940, MAGIC unveiled Japan’s plans for spying in the United States, directing the recruitment of agents from “our ‘Second Generations’ and our resident nationals” among others.35
As it had been invoked in previous wars, the Alien Enemies Act served as the basis for designating German, Japanese, and Italian nationals as enemy aliens, along with prudential controls during World War II, such as prohibiting enemy alien travel into certain areas, restricting alien property ownership, and internment (not only of Japanese nationals, but other Axis nationals). The 1940 Alien Registration Act resulted in nearly five million foreign nationals registering with the government during World War II.36 The context of the times saw liberal columnist Walter Lippman writing in 1942:
The enemy alien problem on the Pacific Coast, or much more accurately, the fifth column problem, is very serious and very special. . . . The Pacific Coast is officially a combat zone; some part of it may at any moment be a battlefield. Nobody’s constitutional rights include the right to reside and do business on a battlefield.37
German fifth columns had assisted Hitler’s European conquests, thanks to “German citizens and Nazi sympathizers” living in such nations as Poland, Belgium, Holland, and France.38 Thus, the perceived threat was realistic.
Whereas Axis enemies during a state of war provided a somewhat clearer target for exclusion and other immigration control policies, Soviet communism had always been more surreptitious. Soviet agents, front groups, and infiltration and espionage techniques composed a broad strategy to undermine the United States. Immigrants as well as traitorous natives played a role in the communist threat. For instance, German refugee Karl Frank, alias Paul Hagen, was investigated by the FBI in 1945. His internal security case confirmed that Hagen was a communist and active in a communist front group, New Beginning.39
Soviet aggression escalated after the Second World War, and with it tensions mounted between the USSR and the United States. This was the Cold War, when ideological exclusion became an even more vital public policy instrument. During this period, a refugee problem arose in which people posed as refugees seeking admission using bad documents. In 1948, the Displaced Persons Act barred refugee frauds from U.S. admittance.40
While Soviet espionage of the American-British atomic bomb project was proceeding by 1941, the communist effort was aided by a Manhattan Project insider, Klaus Fuchs, a German refugee, who supplied the Soviet Union with valuable atomic secrets.41 The postwar 1940s and 1950s saw Russian aggression throughout Eastern Europe, the closing off of East Germany and East Berlin, the successful theft of atomic weapons know-how, and continued Soviet militarization with a nuclear accent. Meanwhile, Soviet designs gained a clear advantage from the ability of its agents and sympathizers to travel with relative ease in and out of the United States. The realization of this vulnerability gave rise to enactment of the 1950 Internal Security Act.
A sign that Cold War Congresses took the communist menace seriously and meant to deal with it realistically and effectively, this national security measure forbade the entry of persons likely to perform subversive activities in the United States. The codified security exclusions named such activities as sabotage, espionage, and public disorder. New categories of exclusion included membership in the Communist Party or its affiliates. This marked the first designation in law of the party’s name, and achieved the “specific exclusion of Communists and Fascists from admission into the United States.”42 The law was amended the next year to allow the admittance of involuntary members of communist organizations.43
The McCarran-Walter Act and Ideological Exclusion
The McCarran-Walter Act of 1952, or the Immigration and Nationality Act, reorganized and recodified all U.S. immigration laws, including exclusion policies. This Act became law over President Truman’s veto. It eased family separation for excluded individuals through waivers and emphasized immigrant character (barring criminals, communists, frauds, and other undesirables), health (barring such mental defectives as “idiots, imbeciles, morons, and persons of border-line intelligence”) and ability (setting a labor test and prioritizing entry by aliens with needed job skills).44 In many ways, it represented the high-water mark of American ideological exclusion policy.
Sen. Patrick McCarran (D-Nev.) and Rep. Francis Walter (D-Pa.) included ideological exclusions among the many grounds for excluding aliens from American soil, based on well-founded fears arrived at after much congressional inquiry. For example, a late 1940s Senate Judiciary subcommittee report concluded that current legal loopholes resulted in the admission of “criminals, Communists, and subversives of all descriptions . . . like water through a sieve.”45
Sen. McCarran had told the Senate, “We must bring our immigration system into line with the realities of Communist tactics.”46 What realities? Former communists, including Whittaker Chambers, Elizabeth Bentley, and Louis Budenz, who had informed the FBI about their communist subversion and provided specific, verifiable information about communist operatives and operations, appeared at congressional hearings to expose the enemy operating from within.47 These witnesses
. . . testified that the real control of the [communist] party in the United States was in the hands of foreign agents who entered and left the country at will. Maurice Malkin, another former Communist, declared, ‘The Communist Party of the United States was organized and has been led by aliens since its inception in 1919.’ These witnesses recommended much more stringent immigration laws in regard to subversives in order ‘to cut the lifeline of the party.’48
Congressional efforts culminated in the spring of 1951, with joint House and Senate Judiciary Committee hearings on McCarran and Walter’s reintroduced legislation. The latest McCarran bill largely followed the Internal Security Act’s exclusions of subversives. However, the legislation allowed the entry of former members of subversive groups, if membership was nominal and forced for getting jobs or ration cards. In order to be regarded as admissible, such alien members would have to had renounced their former allegiance and for two years have actively opposed the radical ideology.49 However, government witnesses warned that it would not be possible to determine the truth about aliens seeking entry from closed nations, and it would be better to “err in favor of American security.”50
The McCarran-Walter Act became law by overwhelming majorities in both bodies of Congress, with sufficient strength to overcome President Truman’s veto. Truman objected to retaining the national-origins system.) It eventually listed 33 categories of excludable aliens (nine of them new). Regarding an alien’s ideology, three grounds related to security and politics. Section 212(a)(27) kept out aliens who would participate in activities that would be prejudicial to the public interest or public safety. Section 212(a)(28) excluded aliens who belong to subversive organizations or teach or advocate prohibited views. Section 212(a)(29) barred aliens deemed likely to engage in subversive activities once here. This noncontroversial subsection kept out aliens expected to engage in espionage, sabotage, public disorder, or activity that risks national security or use of force or violence to overthrow the U.S. government.
Ideological exclusion proved a valuable policy tool for the Cold War by enhancing efforts to ferret out Soviet agents and fight communist subversion. But its application, compared with other grounds for exclusion and deportation, appears measured. From 1892 to 1980, the Immigration and Naturalization Service excluded 1,369 aliens as subversives or anarchists. Of them, 1,098 such exclusions occurred in the 1950s, or about 5 percent of all INS exclusions that decade. These grounds were employed to deport threatening aliens, too, but not greatly. Only 230 subversive or anarchist aliens were deported on those grounds in the 1950s, making it the third-lowest deportation category of the decade of 13 on INS tables, and only the fourth-ranking decade for such deportations between 1908 and 1990.
The 1960s saw 128 aliens excluded as anarchists or subversives, and 15 aliens removed for those reasons. In every decade, far more aliens were excluded or deported for criminal or narcotics violations or some other reason than were kept out or sent back for dangerous ideology or radical activism.
The State Department says it does not have available visa refusal data from 1952 to 1962. Therefore, it is difficult to draw firm conclusions regarding ideological exclusion’s application by the State Department in the early years of McCarran-Walter.
Ideological Expansion by Congress and Courts
In 1951, the Supreme Court upheld the 1940 Alien Registration Act (or Smith Act) convictions of 12 Communist Party conspirators seeking the overthrow of the U.S. government in Dennis v. United States. In 1952, the court ruled in Harisiades v. Shaughnessy in favor of deporting aliens who previously belonged to subversive groups.51 But the court was about to shift radically, as the same social forces that gave rise to the 1965 immigration overhaul, scrapping the national-origins quota system, fed elite sentiment to expand the First Amendment far beyond its original meaning. This mindset included foreigners’ speech.
A number of court decisions expanded the First Amendment far beyond the Founders’ original intent. For example, the judiciary loosened the long-standing protections in law that safeguarded individuals from defamatory expression and removed the legal consequences of libelous attacks. One such case was New York Times v. Sullivan in 1964. In this decision, the U.S. Supreme Court inordinately raised the standard of proof for public officials and public figures claiming defamation. Thus, unless a plaintiff could prove the publication occurred despite knowledge of falsity or in reckless disregard of the truth, even falsehoods that defame public figures now enjoyed “constitutional” protection.52
The same judicial activism informed other rulings with just such an expansive interpretation of the First Amendment. The 1969 case of Brandenburg v. Ohio overturned a criminal statute under which a Ku Klux Klansman had made veiled threats against the U.S. president, Congress, and the judiciary. The Supreme Court ruled that “mere advocacy” of illegal acts instead of “inciting or producing imminent lawless action” should enjoy “constitutional” protection.53 Other cases stretched the First Amendment’s protection to include not only broad written and spoken ideas, but symbolic expression such as clothing, actions such as burning the flag, and vulgarity.54
Into this context fell the exclusion of aliens on ideological grounds. The Supreme Court under Chief Justice Earl Warren had already practically reversed the Dennis decision, distinguishing in Yates v. United States in 1953 “an action involving the overthrow of the government from abstract discussion or writing suggesting such action.”55 Activist judges in the 1950s, 1960s, and beyond carved out the concept of “meaningful association,” so that known members of a Communist Party organization, communist military, or communist government had to have performed some voluntary activity to back up ideological sympathy and membership in order to be excludable.56 The 1961 decision in Noto v. United States let off a convicted communist advocate. In 1967, the court effectively extended First Amendment freedom of association to mean that communists might work in American national defense facilities.57 How such an expansive perspective might decide on ideological exclusion provisions eventually came to a test.
The 1972 ruling in Kleindienst v. Mandel addressed the ideological exclusion of a Belgian socialist newspaper editor under INA Section 212(a)(28). The court determined that the exclusion was in order, as Mandel advocated world communist principles; therefore, the denial of a visa for “facially legitimate and bona fide” reasons fell within Congress’s broad, plenary powers to decide aliens’ admission and exclusion. Of note, the court denied Mandel standing to bring a constitutional challenge of a visa denial. The six American plaintiffs asserted that Mandel’s exclusion violated their First Amendment rights of association and to receive information. However, the court declined to rule on First Amendment grounds, saying to do so “would allow all aliens to be admitted and would consequently transform Congress’s plenary power into a ‘nullity.'”58
In 1975, the United States signed the Helsinki Accords, which in part sought to ease the international movement of ideas and people. Sen. George McGovern in 1977 successfully offered an amendment that came to bear his name, ostensibly to further compliance with the Helsinki Accords. The McGovern Amendment to the fiscal 1978 Foreign Relations Authorization Act stacked the deck against Section 212(a)(28). This part of the ideological exclusion law spelled out in eight detailed subsections various alien subversives who were to be rejected for entry into the United States. These exclusionary grounds ranged from group membership to affiliation to various activities supporting the furtherance of subversive causes. Activities included writing, teaching, advocating, and publishing seditious acts against the U.S. government. It granted a waiver to aliens who could prove membership was involuntary.
The McGovern Amendment turned that system on its head; now, waivers for nonimmigrant (i.e., temporary) visas would be automatically recommended unless the alien’s admission would jeopardize U.S. security interests. Further, the Secretary of State would have to certify such exclusions to Congress. Over the next two years, the amendment was refined to clarify that the instant waiver did not apply to terrorists from the Palestine Liberation Organization, nationals of nonsignatory Helsinki countries, or supposed labor unions that were in fact communist fronts.59
Controversy surrounding ideological exclusion festered in the 1970s, but came to a head in the 1980s, with the Reagan administration’s coming to power. Congress said the Carter administration denied more visas under Subsection (27), but critics attacked the Reagan administration exclusions as aimed at foreign policy opponents.60 Section 212(a)(27) kept out aliens believed to seek entry “solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.” The only waiver under this exclusion was for certain diplomats. Certain outspoken foreigners received invitations from American groups — primarily left-wing politicians, academics, activists, and others — ostensibly to exchange ideas on foreign policy and military affairs. Most invitations appeared to be attempts to give a forum to critics of various Reagan administration policies, such as in Central America and on nuclear arms.61
Former NATO official Nino Pasti, a former Italian senator and air force general, was president of a peace group and active in the communist front group the World Peace Council. New England pacifist organizations invited Pasti to speak at nuclear freeze rallies, but the State Department denied him a nonimmigrant visa under paragraph (27). Nicaraguan Interior Minister Tomas Borge accepted an invitation to speak at several meetings of those opposed to Reagan administration policies toward the communist government in Nicaragua, but he was denied a visa under paragraph (27). Similarly, the government denied visas to invited speakers Olga Finlay and Leonor Rodriguez-Lezcano. These Cuban women were offered a forum at American universities and at the Third World Woman’s Project of the Institute for Policy Studies.62
American plaintiffs challenged these exclusions, claiming they were being denied their First Amendment right to receive information and to associate with the aliens and that the Immigration and Nationality Act was being misapplied. These cases were consolidated in Abourezk v. Reagan.63
In 1984, the U.S. District Court for the District of Columbia found for the government, granting its motion for summary judgment. The court ruled on the statutory claims, not the constitutional ones. It determined that the “public interest” terminology “embrace[d] harm to foreign policy interests,” that the McGovern Amendment applied solely to paragraph (28), not (27), and applied the Kleindienst standard of a “facially legitimate and bona fide” basis for visa denial. This last element represented something of a balancing of First Amendment considerations with congressional and executive authority to conduct foreign relations. The court also, having reviewed in camera classified documents regarding the aliens in question, concluded that the visa denials occurred because of the persons being officials of governments or organizations hostile to this country.64
The Court of Appeals for the D.C. Circuit in 1986 vacated the lower court’s ruling and remanded the case. While agreeing that paragraph (27)’s “public interest” clause included foreign policy matters, it ordered the lower court more fully to explore whether this exclusionary statute applied only to intended subversive activities, as the plaintiffs claimed, or also applied to simple entry or presence. This court then accepted the plaintiffs’ claim that the government should only employ the paragraph (27) exclusion if an alien is not excludable under (28) relating to group membership. This argument implied that (27) was given as the basis for exclusion in order to circumvent the McGovern Amendment’s strictures on (28) exclusions.65
In the fall of 1987, the Supreme Court upheld the appellate ruling in a per curium decision.66 The district court, in light of the appellate decision, ultimately determined that the government had not provided sufficient evidence from the legislative history to sustain a practice of paragraph (27) exclusions based on anything other than planned activities. The court additionally applied the appellate-suggested standard to ensure that the McGovern Amendment was not bypassed via (27); the aliens’ memberships would have to be taken into account, and their possible exclusion considered, under paragraph (28). In this case, the court found the government had not presented an adequate case to justify a (27) exclusion based on group membership, which the court claimed should normally be considered under (28). This meant Nino Pasti and both Cuban women could not be rejected for a visa, based on group membership, under paragraph (27); however, Tomas Borge could be kept out because of his intention to travel inside the United States as the Nicaraguan government’s representative.67
Section 212(a)(28), pertaining to membership in communist or other dangerous groups, had already been weakened by the McGovern Amendment. Following the Left’s uproar against the Reagan administration’s apparent reliance on Section 212(a)(27) as an end run, Sen. Daniel Patrick Moynihan (D-N.Y.) and Rep. Barney Frank (D-Mass.) went to work. The Moynihan-Frank Amendment became law as Section 901 of the 1988-1989 Foreign Relations Authorization Act. The amendment applied both to immigrants and nonimmigrants (though when extended the next year it was narrowed to apply only to nonimmigrants). The amendment provided that aliens could not be excluded or deported “because of any past, current, or expected beliefs, statements, or associations which, if engaged in by a United States citizen in the United States, would be protected under the Constitution of the United States.” That is, American lawmakers sought to extend the First Amendment to the world — despite foreigners’ lack of corresponding duties that U.S. citizens bear or the status of being subject to the U.S. government’s jurisdiction.68
The original ideological exclusion provisions never seem to have kept out large numbers of aliens, compared with other grounds for exclusion or deportation or as a proportion of total findings of visa ineligibility. Section 212(a)(28) grounds precluded the most aliens from getting visas, compared with (27) and (29) (see Table 1). Paragraph (28) caused around 200 immigrant visa denials a year in the Johnson administration years and from roughly 1,200 to 4,500 nonimmigrant visas to be denied each of those years in the 1960s. A note in the State Department’s report began to appear with the fiscal year 1968 figures that a high percentage (60 percent in FY 1968) of immigrant visa applicants overcome the grounds for refusal. In 1971, State Department reports began to show the number of annual visa refusals overcome.