ICE arrested Palestinian activist and former Columbia student Mahmoud Khalil with the intent of deporting him in accordance with the announced Trump policy of deporting non-citizens who engage in pro-“terrorist” speech related to the Israeli-Palestinian conflict. Predictably, the Axis is all-in supporting Khalil, who sure appears to be a bad human hill to die on. Representative Alexandria Ocasio-Cortez condemned ICE’s detainment of Mahmoud Khalil, calling it a “tyrannical” move, “Violating rule of law, actually,” she wrote. That AOC defends him alone makes me inclined to want to get rid of the guy, but that would be irrational. Judge Jesse Furman of the Southern District of New York issued an order today halting Khalil’s processing and scheduled a hearing on the case for later this week. Ah yes, the Southern District of New York!
In a confusing essay at The Volokh Conspiracy, Ilya Somin writes that deporting non-citizens for the content of their speech is a First Amendment violation and “a slippery slope,” then, in the fifth paragraph, acknowledges that 8 U.S.C. § 1182(a)(3), bars “Any alien who … endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.” I’d say endorsing and supporting Hamas qualifies under that law, wouldn’t you? So Somin says, “Such laws, too, should be ruled unconstitutional.” But until and unless it is, the Trump administration has the law on its side.
The question remains, is such a restriction on the free speech of non-citizens ethical? Somin:
“The First Amendment’s protection for freedom of speech, like most constitutional rights, is not limited to US citizens. The text of the First Amendment is worded as a general limitation on government power, not a form of special protection for a particular group of people, such as US citizens or permanent residents. The Supreme Court held as much in a 1945 case, where they ruled that “Freedom of speech and of press is accorded aliens residing in this country.”
I find this absolutist approach fairly persuasive, because free speech is safest when the exception to the First Amendment are rare. And yet, I can also see the utilitarian value of a principle that says that while one is a guest in this country and not yet a citizen, one should behave. If you want full protection of the First Amendment, become a citizen. Somin concedes that even if non-citizens have a right to free speech, they don’t have a constitutional right to stay in the US so, arguably, deporting them for disruptive speech doesn’t violate the Constitution. But, he says, depriving people of a right as punishment for their speech violates the First Amendment.
Except that residing in the U.S. when one is not a citizen isn’t a right, but a privilege.
Somin also loses me—forever!—with this foolishness: “I would argue that freedom of movement – including across international boundaries – is also a human right, one that should not be restricted based on arbitrary circumstances of parentage and place of birth.” That sounds like an open boarders argument to me, and that is signature significance for a scholar who is estranged from reality. Utopian positions that are impossible in the real world are unethical: they just waste time and confuse people.
Whether deporting non-citizen pro-terrorism advocates like Mahmoud Khalil is constitutional, legal or ethical is a close call all around. Presumably the U.S. Supreme Court will end up deciding.
Ethics Alarms 
To paraphrase Don Corleone: “Now Listen, Whoever Comes To You Defending This Mahmoud Khalil, They’re The Traitor. Don’t Forget That“
Lefty choosing this hill upon which to die?
“Never Interrupt Your Enemy When He Is Making A Mistake.” N. Bonaparte
PWS
So Somin says, “Such laws, too, should be ruled unconstitutional.” But until and unless it is, the Trump administration has the law on its side.
Trump also has precedent on his side. See Harisiades v. Shaughnessy, 342 U.S. 580 (1952)
True, it often is difficult to determine whether ambiguous speech is advocacy of political methods or subtly shades into a methodical but prudent incitement to violence. Communist Governments avoid the inquiry by suppressing everything distasteful. Some would have us avoid the difficulty by going to the opposite extreme of permitting incitement to violent overthrow, at least unless it seems certain to succeed immediately. We apprehend that the Constitution enjoins upon us the duty, however difficult, of distinguishing between the two. Different formulae have been applied in different situations, and the test applicable to the Communist Party has been stated too recently to make further discussion at this time profitable. We think the First Amendment does not prevent the deportation of these aliens.
I have a bit of confusion about this case.
From the article: “Greer said she spoke by phone with one of the ICE agents during the arrest, who said they were acting on State Department orders to revoke Khalil’s student visa. Informed by the attorney that Khalil was in the United States as a permanent resident with a green card, the agent said they were revoking that instead, according to the lawyer.”
If it is a matter of revoking a student visa, I do not have a big issue here. A student visa is a non-immigrant visa, meaning you are not here to stay. You really are here as a guest. You probably have very little in the way of due process rights. They probably could just send you home. (You are not even allowed to work, so you do have fewer rights.)
If he is a permanent resident, the due process is much more complicated. You can be removed even if you are a permanent resident, but not on some whim. You have been permitted to stay “permanently.” You have to commit serious crimes to be deported or leave the country for more than 1 year, I think (you abandon your residency if you leave for a long period of time, or leave repeatedly).
If he is a permanent resident, he should not be removed.
But, now, looking at the specific statute, it deals with “inadmissible aliens.” Without quoting the whole statute (or section), it talk about how aliens seeking to enter the United States are inadmissible. Mahmoud Khalil is already here. He has been admitted. So, I do not think 8 U.S.C. 1182 even applies in this case.
-Jut
Ilya Somin is wrong.
I’m waiting for Steve Witherspoon to give us another important reminder about “we the people.” After all, the Constitution is about “we the people, in order to form a more perfect Union,…” The assurance of domestic tranquility is for those who are members of the union…and there are laws around becoming a member if one is not a natural-born citizen. Once those legal requirements are satisfied, an individual may join the union as a citizen, and is afforded all the protections the Constitution offers, among them a First-Amendment right to free speech.
Khalil has not satisfied those requirements of citizenship and is calling for the support of anti-semitic groups that are labeled terrorists and terrorist threats to our country. His words ring strongly against a more perfect union, domestic tranquility, and securing the blessings of our liberty.
In the succinct words of John McLaughlin (each time he ended “The McLaughlin Group”): “Bye bye!!”
Now ask Somin to do the Second Amendment.
Some aliens legally in the US may, under federal regulations, purchase firearms, others may not.
What’s the difference?
As a green card holder, I have an interest in seeing where this goes.
The first point that I want to make is that Ilya Somin, and the lawyers at the Volokh Conspiracy are First Amendment absolutists. They follow Clarence Darrow’s dictum “In order to have enough freedom, it is necessary to have too much” in regards to our constitutional rights.
The ACLU used to be First Amendment absolutists. In the “National Socialist Party of America v. Village of Skokie” case they successfully defended the rights of Nazi’s to march through Skokie, a village with a significant Jewish population.
I have no sympathy for Hamas and the Nazi’s of course, but in the USA both have the right to advocate for their causes under the First Amendment, and that includes holding peaceful protests. (For the purpose of this post I will abstain from commenting on whether the Hamas protests at Columbia were peaceful, some Jewish students enrolled at Colombia beg to differ….). This is important for all who legally reside in the USA, because if unpopular speech is protected than all of our speech is protected under the constitution.
ICE does not allege that Mahmoud Khalil has committed any crimes. He is a permanent resident, with a green card (source: The Hill). A green card can be revoked under circumstances spelled out by law. However if a green card is revoked followed by extradition based on a person’s viewpoints and speech, shouldn’t we be concerned that this may have a chilling aspect on speech for non-US citizens? SCOTUS ruled in the “Bridges v. Wixon” case (1945) that “Freedom of speech and of the press is accorded aliens residing in this country. P. 326 U.S. 148.“, prohibiting the extradition because of membership of the Communist Party.
So if a green card can be revoked under 8 U.S.C. § 1182(a)(3) “Any alien who … endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization” then I think it is worth to have this law tested all the way up to SCOTUS given precedents like Bridges v. Wixon.
CEES VAN BARNEVELDT, you are making me do it. I did not want to look at this, but I am further convinced that the statute has NO application in this case.
The statute begins with the following language:
“Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:”
Someone who espouses terrorist activity is not eligible to receive a visa or be admitted to the United States. Khalil presumably did obtain a visa and was admitted; now, he is a permanent resident.
8 USC 1182 is irrelevant.
-Jut
Focusing on Ilya’s comment,
I find it risible that so many people seem to think a right necessarily comes without any restrictions whatsoever. I have a right to free speech, but I don’t have a right to be listened to. I have a right to bear arms, but not to be an aggressor utilizing those arms. I have the right to life, but not to insist that a grocery store provide me with food free of cost.
I would agree that the freedom of movement is a right, and I will cite the Catechism of the Catholic Church paragraph 2211:
But even the CCC admits to restrictions:
A right to emigrate does not mean someone can simply go wherever he chooses, and the local government must tolerate it. As the CCC notes, the need for the local government to assure the common good means it can limit the number of migrants, or the rate of migration, so that the local community is not harmed by the influx of migrants. We have a duty to care for the poor, yes, but that duty does not extend to beggaring ourselves. If an influx of migrants will wreck the local economy so that everyone is hurt, then it is fair to say that the rights of the migrants are clashing with the rights of the local populace.
Let us look, for example, at the Wyoming town of Kemmerer (the birth place of the chain JC Penney, if anyone was curious). The new natrium reactor nuclear power plant is under development nearby. It is expected that at the height of construction, some 1600 contractors will be onsite. The town has a population of not quite 2400. That influx of contractors is going to, temporarily, nearly double the population. Housing is going to be taxed. Food supplies are going to be taxed. There will be a massive increase in illegal incidents, taxing the local constabulary. Electricity, gas, and water usage will skyrocket. The infrastructure has to be prepped to handle such an influx, or the entire community will crash. Knowing that so many contractors are coming allows the community to prepare. (Whether they are preparing properly is a matter of debate, according to my friends who live there.) Preparation and a gradual admittance of the contractors will alleviate most of the issues, and ultimately will be a boon to the community. But to be swamped unexpectedly with those numbers, all at once, would (metaphorically) loot the place and leave it destitute.
We endured a similar situation in Rawlins, back in 2015, when we had over 2000 contractors at the height of the refinery runarounds that year. The town prepared in advance to have all kinds of temporary lodging for the contractors, but even so, all the hotels were packed full, the grocery stores were continually depleted, the police were busy handling drunk contractors every night, and the entire community was strained from trying to support such a massive influx of temporary workers. And Rawlins, being a town of around 8800, only saw an increase of not quite 25%, instead of the 67% Kemmerer is expected to see.
In a similar sense, think of the cities that host the Olympic games. They are chosen years in advance so that the cities have time to prepare, not only for venues for all the events, but for the volume of people that will descend on the city and only for a few weeks. Preparing for such an influx of people is crucial to ensure that everyone is not harmed by a dearth of food, water, and lodging, which everyone would agree we have a right to have.
This disconnect, as always, seems to be between the dreamy-eyed ideal and the devilish details needed to make things work. It would be nice to take care of everyone, yes, but resources are finite. Logistics are required to ensure that everyone we do choose to care for has adequate access to resources. We must therefore determine how many immigrants we can accept, and if we place any limitations on the number allowed on an annual basis, then we have to have some guidelines on how to restrict people. We might choose a first-come-first-served attitude, or we might want to place priorities on refugees, or on people who are highly skilled, or are politically connected, or whatever the case might be. Any way we cut it, as soon as we determine we cannot care for everyone right this moment, some are going to be left out.
To return to the general thought on restrictions on rights, I would look at the right to emigrate as a protection against the local government preventing its citizens from leaving to become citizens of another country, if that country will have them. It is not an obligation on a foreign country to accept an immigrant, if it has been determined that the immigrant does not qualify for entry.
Nicely done, Ryan, as always.
jvb
Jack wrote:
That sounds like an open boarders argument to me, and that is signature significance for a scholar who is estranged from reality.
Exactly. That’s why I don’t read anything Somin writes — he is not only terminally Trump-deranged, he is an immigration absolutist, believing that everyone has a right to come into this country and live, even as a citizen, if so inclined.
Regarding the subject of your post, I generally agree with you. If the First Amendment were an absolute bar to removal, those who support and defend enemies of the United States would be subject to no penalty and would require some other pretense to remove if they attempted to use their arguments to foment insurrection or outright rebellion. A country cannot exist under such a permissive arrangement.
Finally, we don’t actually know why Khalil is being removed. Everyone assumes it was because of protected First Amendment activities, but there is a whole range of things that could’ve prompted the removal, including participating in illegal activities such as trespassing or violating other laws concomitant with protesting.
I cannot but help thinking that material support for a terrorist group is not covered by the First Amendment.
If someone comes into my home then starts promoting ideas that I totally disagree with whether it is supporting terrorist groups, promoting that some crimes should not be illegal when I think that they should be illegal, espousing DEI, or any other rubbish that I totally oppose then I should have the right to through him or her out of my home. They can still promote their ideas outside my home so I am not prohibiting their free speech, just don’t do it in my home.
Just as parents have a right to control what happens in their home and if their children bring home friends that the parents judge to be unsuitable then they can stop them coming to their home, then so should a country be able to eject any persons that they deem unsuitable. Anyone who is a permanent resident is presumably working towards becoming a citizen. This should mean not doing anything that would cast doubt upon whether they are suitable to be a citizen and promoting terrorism or committing crimes are not the actions of a good citizen.