Shortly after posting a discussion of conservative legal scholar Illya Somin’s article at Reason declaring the Trump administration’s effort to deport Mahmoud Khalil “unjust and unconstitutional,” I became aware of the article at City Journal in which conservative legal scholar Ilya Shapiro defends the policy as legal and constitutional. It is clear from the essay that he also believes the policy is appropriate and ethical.
As an aside, I have dreaded this day. Shapiro is the Ilya whom Georgetown Law Center punished for making the argument that President Biden’s limiting his Supreme Court nominee pool to black female judges was not the way to end up with the mots qualified and able candidates. Somin is the Ilya whose commentary I have been reading at the Volokh Conspiracy for more than a decade. Regular readers here know my typo proclivity, and once the two Ilyas were in my head together, every time I types “Ilya S…” it had been touch and go whether I would type the right name or the wrong one. I only know of three Ilyas, the third being Ilya Kuryakin, the Russian sidekick of Napoleon Solo (Robert Vaughn) on “The Man From U.N.C.L.E.” He was played by the estimable late David McCollum, eventually known for portraying the role of “Ducky” on “NCIS.”
Ilya Shapiro argues that Ilya Somin’s case is weak and disingenuous, because it is not seeking to deport the former Columbia student for mere speech, but for conduct “detrimental to the national interest.” “There’s nothing objectionable or controversial about removing those who harass, intimidate, vandalize, and otherwise interfere with an educational institution’s core mission, ” he writes.
In one of the first executive orders Trump signed, he directed federal agencies to strengthen vetting and screening of those seeking admission and those already in the country, because “the United States must ensure that admitted aliens and aliens otherwise already present in the United States do not bear hostile attitudes toward its citizens, culture, government, institutions, or founding principles, and do not advocate for, aid, or support designated foreign terrorists and other threats to our national security.” Then, as part of the “Additional Measures to Combat Anti-Semitism,” he ordered the use of “all available and appropriate legal tools, to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.”
All of this makes eminent sense: it’s the government’s duty to screen out visitors and migrants who would be harmful to our country, including those who reject our values or are hostile to our way of life, such as Communists, Nazis, or Islamists.
Read the whole thing. Shapiro’s piece is about 75% shorter than Somin’s but he has, I think, the better case. I still think this will end up at the Supreme Court, but note, as Shapiro points out,
The INA’s inadmissibility provision also empowers the president to “suspend the entry of all aliens or any class of aliens” whom he determines to be “detrimental to the interests of the United States” or to impose on them “any restrictions he may deem to be appropriate.” During Trump’s first term, the Supreme Court upheld that broad grant of presidential discretion to vet, restrict, and even ban immigrants—and thus to direct executive-agency action in that regard—at the culmination of the high-profile “travel ban” litigation. In Trump v. Hawaii, the Court okayed an executive order restricting travel from various countries, with Chief Justice John Roberts affirming that the only statutory requirement is that the president “find” the entry of the affected aliens to be “detrimental to the national interest.”
When an alien who has already been provided with temporary resident status reveals that he or she advocates positions “detrimental to the United State,” therefore, it is appropriate to kick such an individual out.
Ethics Alarms 
I do not disagree with Shapiro’s analysis, but I think it is inapplicable to Khalil. Khalil is not a temporary resident; he is apparently a permanent resident. If so, he may have come on a visa but he has changed his status to become a permanent resident. That cannot be revoked now, except by a very specific (and complex) procedure. And, if he becomes a citizen, it is extremely difficult to do that.
-Jut
This is a tough one.
We don’t extend the Second Amendment to aliens unless they jump through some extra hoops, but speech has always enjoyed extra protections.
A small benefit of student visas is to spread American values to the other citizens of the world, so they can advocate for those freedoms in their home countries. But their purpose is to learn, not affect political policy.
But if this does get sanctioned as acceptable, imagine how it could be abused. Imagine every incoming student from China is suddenly also a paid protestor advocating for the release of captured spies.
“When an alien who has already been provided with temporary resident status reveals that he or she advocates positions ‘detrimental to the United State,’ therefore, it is appropriate to kick such an individual out.”
Well! The only conclusion then is for all those with temporary resident status to keep their mouths shut and say nothing at all that could possibly, regardless of the stretch, be conceived as advocating any position. For example, is it detrimental to the US to support Ukraine, or is it detrimental to support Russia? Say something, anything, about that war and you would be subject to deportation at the whim of the President.
It is foolish to be that afraid of speech.
The question arises by deporting him. Do we do more damage to the United States and our values of free speech by deporting him which would serve as evidence that our Constitution is only worth the paper it is printed on.
I once thought that the EU espoused the rights Americans hold dear. Legal decisions in the EU have eroded that belief that our NATO allies have our values that are embodied in our Constitution. Radical thought flourishes when we don’t live up to our ideals. And, if our arguments are so weak that they cannot stand up to scrutiny it might be time to reevaluate our positions.
The key sentence in Shapiro’s comment on Trump’s EO is:
Then, as part of the “Additional Measures to Combat Anti-Semitism,” he ordered the use of “all available and appropriate legal tools, to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.”
They key question then becomes whether Khalil committed unlawful anti-Semitic harassment and violence. Let’s assume that was indeed the case, and Khalil’s speech was unlawful because it fell in one of the narrow exceptions on our free speech rights e.g. by presenting a clear and imminent danger, then the Trump administration may have a much stronger case for revoking Khalil’s right to stay in the USA.
However, if Khalil’s actions were fully permittable under the First Amendment, and did not infringe on anybody rights, then I think this needs to go up all the way to SCOTUS, as I argued in a comment on Jack’s first post on this matter.
Let’s assume that ICE is able to extradite Khalil solely based on his expression. Would that mean that we can extradite all students on a visa who have a Palestinian flag hanging in their dorm? What if Kamala Harris was elected as POTUS, would an student from Israel on a visa be in danger if he openly supports IDF action in Gaza? Let’s be mindful that administrations of different leaning may also have different views on what constitutes terrorism, or genocide. My believe is that First Amendment absolutism is the right choice, also given the fact that the previous administration found ways to abridge these freedoms with censorship based on viewpoint.
This is a tough call. The cited statute 8 U.S.C. § 1182 addresses “admissibility” and not removability. That statute makes advocating for the PLO a grounds for inadmissibility because the PLO has been designated a terrorist organization. It would not be a far stretch to conclude that Hamas is a terrorist organization (it has been designated a terrorist organization by the State Department since 1997). thereby justifying inadmissibility.
So, to me, the question is: Does advocating for Hamas constitute a grounds for revocation of permanent resident status, justifying removal from the US? If Shapiro is correct, it does; if Somin is correct, it doesn’t.
Both Ilyas are smart, serious thinkers, and their positions are defensible on either side. The District Court will likely side with non-removability; the Court of Appeals might affirm, and the current make up of SCOTUS will probably reverse and render in favor of removability.
jvb: AOC should get off her high horse: there is credible evidence she willingly and intentionally employed an illegal alien as part of her staff:
https://nypost.com/2025/03/08/us-news/aoc-former-staffer-diego-de-la-vega-self-deports-to-colombia/
Last time I checked, hiring an illegal alien was a crime.
jvb
Ilya Shapiro’s article refers to 8 U.S.C. § 1227 which covers deportability of aliens. I did a quick scan of the text, and did not find advocacy for terrorist organizations as a ground for deportation. However I am not a lawyer, so please don’t quote me on it. So I am curious to see where the courts go on this.
My feelings on this issue are thorn. I despise everything Khalil stands for, and the harassment and threats of violence during these pro-Hamas rallies. I would not mourn to see him being deported.
However I am also mindful of how during the Biden administration certain laws such as the Patriot Act have been abused, and opponents of Biden policies were labelled as domestic terrorists.
So my preference is to see the rights of all who reside legally in the USA secured, even if that means that some wrongdoers may not face adverse consequences.
I agree
8 U.S.C. § 1227(a)(4)(B) states,
“(B) Terrorist activities
“Any alien who is described in subparagraph (B) or (F) of section 1182(a)(3) of this title is deportable.”
It seems the Trump Administration is on solid grounds.
jvb
Not sure how Twitchy compilations of X posts are viewed on EA, but at the very least, this one is *interesting*:
https://twitchy.com/samj/2025/03/11/ryan-mauro-thread-mahmoud-khalil-n2409654