DRAFT: Yes, This Is Who We Are: The Forthcoming Deportation of Mahmoud Khalil

Below the paywall fold because it is just a draft, and outside my wheelhouse anyway. An irritable gesture provoked by a very sharp person—Steve Vladeck—looking at his feet rather than at what is...

Below the paywall fold because it is just a draft, and outside my wheelhouse anyway. An irritable gesture provoked by a very sharp person—Steve Vladeck—looking at his feet, rather than at what is really going on around him. Steve Vladeck sees “difficult questions…”. A less naïve observer—a Fred Rodell—would see a Supreme Court with a six-vote lock against taking steps to vindicate the rights of non-citizens to politically dissent. Power is now deciding who can speak and who cannot…

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There are lots of smart people wringing their hands these days who do not seem to understand what is really going on—or what I, at least, think is really going on.

Today’s exhibit: the very sharp Steve Vladeck:

Steve Vladeck: Five Questions About the [Mahmoud] Khalil Case: ‘The government's arrest and detention of a pro-Palestinian Columbia student (and green card holder) raises difficult questionst…. To sustain… Khalil’s arrest, the government has to identify the specific basis on which… Khalil is subject to removal…. My best guess… 8 U.S.C. § 1227(a)(4)(C)… “An alien whose presence… the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences.. is deportable…. [once] the Secretary of State personally determines that the alien’s [continued presence] would compromise a compelling United States foreign policy interest”… [and] 8 U.S.C. § 1182(a)(3)(B)(i)(VII)… renders both inadmissible and removable any non-citizen who “endorses or espouses terrorist activity or persuades others to… support a terrorist organization”… (to wit… Hamas)…. It’s at least possible that the government has a non-frivolous case for seeking Khalil’s removal….

Now we get to the hard and important part—the unshakable appearance, if not the reality, that all of this is being done in retaliation for constitutionally protected speech…. [But] the Supreme Court… has made it very difficult to use a First Amendment retaliation claim to successfully defeat an enforcement proceeding… especially in immigration…. The First Amendment might require the Secretary of State to have substantial support for… [his] personal determination…. Courts could subject [that] to meaningful scrutiny…. The First Amendment might limit… removing LPRs for… [merely] “endors[ing]” or “espous[ing]” terrorist activity…. A Fifth Amendment challenge on… vague[ness]…. Devil… very much… in the details….

I would certainly hope that the federal courts will read the Constitution to require… an awfully compelling reason…. I suspect that no such reason exists…. But that’s what the litigation is going to test… not something about which I can be confident… <https://www.stevevladeck.com/p/131-five-questions-about-the-khalil>