With a whimper, not a bang, the 1952 McCarran-Walter Act is gone. In one of its last acts, the 101st Congress repealed this embarrassing remnant of the McCarthy era, a law that permitted the exclusion and expulsion of immigrants with politically "incorrect" beliefs and associations. Long criticized, the law appeared especially ludicrous in the wake of the Cold War.
But before we congratulate our representatives for courageously eradicating this 1950s relic, we should ask whether the new law that replaced it is in fact a change for the better. From the perspective of one who has litigated under the McCarran-Walter Act for many years, it looks unfortunately like more of the same. The new law continues to draw ideological lines and may well increase the administration's ability to exclude and deport aliens for political reasons.
Under the McCarran-Walter Act, aliens could be kept out of the country and expelled after they entered if they advocated Communist ideas, belonged to Communist organizations, or espoused such doctrines as the destruction of property. Moreover, the government could bar entry to those whose presence it deemed "prejudicial to the public interest," an open-ended phrase that proved handy when spokespersons opposed to administration policies sought to visit. If the government wanted to keep an alien out but didn't want to reveal its evidence for doing so, it could dispose of the necessity for a hearing before an immigration judge merely by asserting that its decision was based on confidential information.
In short, in the McCarran-Walter Act we applied to aliens a range of principles and practices that we would have considered constitutional anthema if applied to citizens: guilt by association, persecution for one's beliefs, censorship of anti-government speech and secret "Star Chamber" enforcement proceedings.
The 1990 law has been heralded as a long-awaited repudiation of these principles. It is not. For example, immigrants can still be excluded for mere membership in the Communist Party. As a result, we will continue to require all immigrants to answer a question long ago repudiated for citizens: "Are you now or have you ever been a member of the Communist Party?" The new law also bars representatives and officials of the Palestine Liberation Organization, the "Communist" party of the 1990s. Thus, guilt by association remains the operative principle.
Two additional grounds for deportation, concerning "terrorism" and "foreign policy," raise even broader problems. Just as the 1952 Congress responded to the threat of Communism by outlawing a wide range of legitimate but unpopular political activity, so the 1990 Congress has used the threat of "terrorism" to enact similarly sweeping provisions. The new law defines "terrorism" to include, among other things, the use of a firearm or explosive "with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property."
An organization that has engaged in such conduct is a "terrorist" organization. And, according to the Immigration and Naturalization Service, the law makes deportable anyone who has raised money or recruited members for such an organization. Under this standard, the government could deport every alien who collected donations for the African National Congress during Nelson Mandela's recent American visit, and Mr. Mandels himself would be barred from entering.
Still broader is a new "foreign policy" ground. Under this provision, the United States can expel or exclude any alien whose presence poses "potentially serious adverse foreign policy consequences." The law warns that this judgment generally should not be based on lawful "beliefs, statements or associations," but even allows that basis if the secretary of state is willing to call the foreign policy interest "compelling." This gives the secretary virtual carte blanche, for what court will second-guess that Cabinet member's judgment that an alien's presence poses "compelling" or even "potentially serious adverse policy consequences"?
To make matters worse, where the government seeks to exclude aliens for "terrorist" or "foreign policy" reasons, it can use the same "confidential information" procedure available for ideological exclusions under the McCarran-Walter Act. The government's ability to deny all access to the information upon which it bases its decisions greatly exacerbates the potential for unchecked ideological action.
Reports of the McCarran-Walter Act's death are greatly exaggerated. Its spirit lives on in the 1990 revisions, which continue to deny immigrants the very freedoms of belief and association upon which this nation of immigrants was founded. Far from repudiating the ideological litmus test, Congress merely adjusted it to today's paranoias. The national pastime of witch hunting did not begin with the McCarran-Walter Act, and unfortunately it will not end with its repeal.
The writer is a professor at Georgetown University Law Center and a volunteer staff attorney at the Center for Constitutional Rights.