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…
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>
Vladeck’s words here: “difficult questions…”, “it’s at least possible…”, “a non-frivolous case…”, “the First Amendment might require…”, “the First Amendment might limit…”, “the devil… very much… in the details…”, “I would certainly hope…”—those words seem to be very wrong and out of place, at least to me.
My view: Vladeck needs to go back and reread that seventy year-old book from that annoying and cruel but brilliant nutboy Fred Rodell, Nine Men <https://archive.org/details/ninemenpolitical0000rode>. Rodell would say:
Four justices—Thomas, Alito, Gorsuch, and Kavanaugh—are Professional Republicans who dance with the one who brung ya. Since Republicans are Trumpists, they will not cross Trump without grave cause. And an obnoxious alien protesting alongside those handing out booklets justifying the October 7, 2023 massacres by Hamas is not a grave cause.
One justice—Barrett—is a deeply hierarchical, patriarchal, and deferential-to-Republicans unpredictable loose cannon.
One justice—Roberts—is eager to advance Republican causes as far as he can without breaking the Supreme Court’s authority. That means that here he will follow Alexander Bickel’s doctrine of “reticence” rather than take a position in which he only has Democratic support. Fear of defiance by a Republican executive supported by media-generated public outrage will be much on his mind.
That means: Six votes on the Supreme Court for deporting Mahmoud Khalil—provided the Justice Department dots the i’s, crosses the t’s, and Marco Rubio signs the requisite determinations.
Perhaps things would be, or could become, different if there were full-throated denunciations of Hamas terrorism and massacres from Mahmoud Khalil.
Perhaps things would be, or could become, different had Mahmoud Khalil personally been demanding unconditional release of all hostages held by Hamas as an integral part of a Gaza ceasefire.
But in the absence of those, I see nothing in the vibe of Roberts’s or Barrett’s chambers that would make either of them to decide that Mahmoud Khalil is one of the good guys, and that this is a place to make a stand.
And, in addition, Mahmoud Khalil’s lawyers will face the uphill rock-pushing of trying to do their work in a country where it is strong, strongly felt that:
Citizens have political rights—rights to vote and otherwise do politics here in the United States—non-citizens do not.
Citizens have civil rights by virtue of the naked Constitution, while non-citizens have rights by the grace and favor of interpretations and extensions.
There is a right to assemble peaceably to petition for redress of grievances, not to disrupt the institutions and practices of daily life to make people listen to you.
People certainly can advocate that the United States take steps to make sure the people in their homeland get a fair shake, but that does not extend to causes many of the supporters of which dearly wish they posed a clear and present danger to the national security of the United States.
Extending the penumbra of some political rights to non-citizens, extending the umbra of full civil rights to non-citizens, tolerating assemblies that turn into disruptions, and siding with causes that wish they were a threat to national security—those are things that a confident nation proud of itself and its liberties is willing to support. But that is not us now. And that is certainly not the Republican half of us now.
So he gets deported.
Or perhaps, if enough sand is tossed into the legal gears, he rots in prison for four years as the case wends its way up and down and up and down again, pregnant U.S.-citizen wife or not. The words and phrases “difficult questions…”, “possible…”, “non-frivolous case…”, “First Amendment might require…”, “First Amendment might limit…”, “devil… in the details…”, and “hope” are not appropriate here.
In the end, however, Steve does get to what I think is the right place:
Steve Vladeck: Five Questions About the [Mahmoud] Khalil Case: ‘Is this really who we are?… What, exactly, is happening[?]… Trump… makes [it] clear that… the government intends to use these rarely invoked removal authorities in enough cases to seek to deter non-citizens… from speaking out about sensitive political issues….
If anything is anti-American, it’s threatening non-citizens who are in this country legally and have committed no crimes with the specter of being arrested, detained, and removed for doing nothing more than speaking up… even, if not especially, [for] unpopular causes with which many of us may well disagree… <https://www.stevevladeck.com/p/131-five-questions-about-the-khalil>
But this is all, as Andrew Marvell wrote back almost four-hundred years ago, “justice against fate complain[ing],/And plead[ing] the ancient rights in vain…”. Those ancient rights do “hold or break/As men are strong or weak…”
And our Republicans today are very weak men and women indeed.
References:
Bickell, Alexander. 1962. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis: Bobbs-Merrill. <https://archive.org/details/leastdangerousbr0000unse_k3l6>.
Marvell, Andrew. 1650. "An Horatian Ode upon Cromwell's Return from Ireland." In The Poems of Andrew Marvell, edited by Nigel Smith, 95–99. New York: Pearson Longman. <https://archive.org/details/poemsofandrewmar00marvuoft>.
Rodell, Fred. 1955. Nine Men: A Political History of the Supreme Court from 1790 to 1955. New York: Random House. <https://archive.org/details/ninemenpolitical0000rode>.
Vladeck, Steve. 2025. "131. Five Questions About the [Mahmoud] Khalil Case." One First. March 10. <https://www.stevevladeck.com/p/131-five-questions-about-the-khalil>.
I share your outrage. One copy-edit note: You inadvertently wrote Mahmoud Abbas (rather than Khalil) twice, just above the numbered list.
It doesn't seem surprising that Vladeck has very conservative views (but views that make him a leftist radical in the eyes of some parts of the federal judiciary). In any case, a decent jumping-off point for this discussion. Staying in our wheelhouses would be what the Germans under Hitler referred to as an "inner immigration." All hands on deck