THE Reagan administration lost a down in the Supreme Court last week - but the setback may just be temporary. The justices deadlocked 3 to 3 (two of eight sitting justices abstained) on whether the State Department had the power to bar aliens from visiting the United States solely because they were affiliated with communist organizations.
Broader related issues - including the power of the president to control matters pertaining to immigration and the free-speech rights of citizens to hear the views of visitors to the US - were not addressed. Almost certainly the court will face these matters in the future.
In this case, Reagan v. Abourezk, a tie was as good as a loss for the administration. It left intact a ruling by the US Court of Appeals for the District of Columbia that visitors could not be denied visas solely on the basis of ``organizational ties.''
Denying a White House argument, the lower appellate court had held that affiliation alone was not enough to justify exclusion. What was needed was government proof that the granting of a visa would jeopardize national security.
The split vote in the Supreme Court, however, didn't set any national precedent. And the matter will revert to a district court for further analysis of what might constitute subversive activity.
Under consideration was the State Department's interpretation of the Immigration and Nationality Act (INA), which allows the US to exclude those who would ``engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.''
Also at stake was the 1977 McGovern amendment, which provides that this exclusion be denied unless the government determines - and certifies to Congress - that admission of an alien would threaten US security interests.
The case involved the government's denial of non-immigrant visas to four aliens who sought entry to the US as speakers in October and November of 1983.
Nino Pasti, a former general in the Italian Air Force and one-time NATO representative who wanted to speak at a rally in Boston protesting the placement of American Pershing 2 missiles in Europe. Mr. Pasti had received previous visas to the US but was denied 1983 entry ostensibly because of his membership in the World Peace Council, a group the State Department believed was controlled by communists.
Tom'as Borge, Nicaragua's interior minister, who was scheduled to make several university appearances as well as to go to Washington, at the invitation of several congressmen. The administration expressed concern that his admission could have adversely affected negotiations with the contras and sent a ``wrong message'' to US allies.
Olga Finlay and Leonor Rodr'iques Lezcano - both members of the Federation of Cuban Women, and family law experts - were invited to New York to address the Commission on the Status of Women and also to later address university audiences.
The State Department held that their appearances would have encouraged Americans to ``accept a positive image of the Cuban Revolution and Cuban society'' and would have been prejudicial to US foreign policy interests.
A host of US civil rights, educational, and legal groups challenged the visa denials - including the Fund for Free Expression, Helsinki Watch, the American Association of University Professors, and the Reporters Committee for Freedom of the Press. The government's position was supported by the Washington Legal Foundation and Allied Education Foundations.
Michael G. Heyman, associate professor of law at John Marshall Law School in Chicago, says that this case - although narrowly decided by the appellate court - raises broader questions regarding visa policies.
Professor Heyman, an immigration specialist, explains that in recent years, the State Department has tended to ``blacklist'' people - including scholars and artists - who oppose administration policy abroad and deny them entrance to the US.
``This circumvents not only McGovern but the spirit of Helsinki,'' he adds.
The US entered into the Helsinki Accords in 1975. This committed the nation, Heyman points out, ``to facilitate the freer and wider dissemination of information of all kinds, to encourage cooperation in the field of information and the exchange of information with other countries.''
US citizens who filed the original suit against the government, including former Sen. James Abourezk of South Dakota, had held that the visa denials violated their First Amendment right to engage in dialogue with these visitors.
Government lawyers argued, on the other hand, that the issue was not free speech - but the authority of the president to conduct foreign policy without impairment by the judiciary.
The lone dissenter in the circuit court ruling was Judge Robert Bork (President Reagan's recently defeated nominee to the Supreme Court), who also criticized a ``process of judicial incursion'' into the administration of US affairs overseas.
A Thursday column