High Court Says U.S. May Have Illegally Barred Communists

An equally divided Supreme Court today upheld a ruling that could limit the government’s power to bar people from the United States based on their membership in or alleged affiliation with Communist governments.

By a 3-3 vote, the court affirmed a federal appeals court decision that the Reagan Administration may have acted illegally in denying visas to four people invited to this country by American citizens.

Because of the split vote, today’s one-sentence ruling does not establish a national precedent.

The court lacks one member because of the vacancy created by the retirement of Justice Lewis F. Powell Jr. Justices Harry A. Blackmun and Antonin Scalia took no part in today’s decision.

The ruling was unsigned, and the breakdown of the vote by the participating justices was not disclosed.

The decision upholds a 2-1 ruling in 1986 by the U.S. Circuit Court of Appeals here. The appeals court overturned a judge’s ruling allowing the Administration to bar a Nicaraguan official, two Cuban Communist Party officials and an Italian member of a group allegedly controlled by the Soviet Union.

The appeals court said the judge’s analysis of federal law was inadequate and ordered him to conduct further hearings.

The Administration “has broad discretion over the admission and exclusion of aliens, but that discretion is not boundless,” the appeals court said. “It extends only as far as the statutory authority conferred by Congress and may not transgress constitutional limitations.”

The government may have been practicing a “brand of guilt by association Congress sought to check” in a 1977 law dealing with visas for Communists, the appeals court said.

The appeals court said a chief aim of that law is to permit entry to people as long as they do not pose risks to national security.

Bork Was Lone Dissenter

The lone dissenter on the appeals court was Reagan’s Supreme Court nominee, Robert H. Bork, who said the Administration did not violate federal law in excluding people with ties to Communist governments.

“Relationships between our government and the governments of Nicaragua, the Soviet Union and Cuba have been marked with tension,” Bork said. He said the exclusion of the four was not based on their political beliefs but because they “are members of or connected with particular foreign governments.”

The State Department refused in 1983 to grant a visa to Tomas Borge, interior minister in Nicaragua’s Sandinista government, who was invited to the United States by members of Congress, university professors and religious leaders.

Then-Under Secretary of State Lawrence Eagleburger said granting Borge a visa would be “highly prejudicial to the foreign policy interests of the United States.”

Eagleburger said permitting Borge’s proposed five-day visit would mislead U.S. allies and adversaries in Central America.

The State Department also denied entry in 1983 to Olga Finlay and Leonor Rodriguez Lezcano, officials of the Cuban Communist Party who were invited by the New York City Commission on the Status of Women to discuss issues concerning women.

In the third case, the Administration refused a visa to former Italian Sen. Nino Pasti, a member of the World Peace Council. The U.S. government said the organization is controlled by the Soviet Union. Pasti had been invited to speak to a rally in Boston advocating nuclear disarmament.