RUTHFULLY YOURS

Earlier today, we posted my piece about the Trump administration’s arrest of Mahmoud Khalil, a lawful permanent resident alien (LPR) — i.e., a green card holder — who was reportedly born in Syria but claims Palestinian ancestry. Khalil has been a prominent figure in the pro-Hamas agitation at Columbia — as late as last week when he reportedly posed as a mediator between the university and “protesters” who occupied a building at Barnard College — an unlawful enterprise that resulted in nine arrests (Khalil was not among them). That uprising was evidently triggered by Barnard’s expulsion of two students who, hiding behind masks, interrupted a “History of Modern Israel” class by barging in and strewing Jew-hatred flyers around the room.

Early this afternoon, President Trump posted on his Truth Social site that the arrest of Khalil, whom he described as “a Radical Foreign Pro-Hamas Student on the campus of Columbia University,” was “the first of many to come,” and that the administration would “find, apprehend, and deport these terrorist sympathizers from our country — never to return again.”

The familiar array of Islamist organizations and their media and Democratic Party allies is rallying to Khalil’s defense. The agitator’s apologists contend that his arrest and the government’s plan to deport him are illegal. A lawyer for Khalil has filed a suit in Manhattan federal court (the Southern District of New York) to try to block deportation and compel his release. Khalil’s allies are concerned about reports that, although he was arrested in Manhattan where he was residing, the Trump Homeland Security Department has already whisked him to a holding facility in Louisiana — perhaps hoping to deport him before the courts can intervene, or at least to try to litigate any lawsuits in a district the administration hopes will be more friendly than the SDNY.

(As this post was written, it was reported that SDNY Judge Jesse Furman ordered the Trump administration not to remove Khalil from the United States at least until the court can weigh in. This was done to preserve jurisdiction over Khalil in the SDNY, even if the administration moves him elsewhere. Judge Furman scheduled a court conference on the matter for Wednesday morning, March 12.)

As I explained in the piece, the statute governing the deportation of aliens present in the U.S. is §1227 of the immigration law. In pertinent part, it incorporates by reference §1182, which controls the exclusion of categories of aliens (exclusion renders an alien ineligible to enter the U.S. in the first place).

According to CNN, the administration is relying on the provision in §1227 that relates to deportations based on “foreign policy” considerations. The relevant subsection ((a)(4)(C)) provides:

In general, an alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.

This ground for deportation should work. It will not be without controversy.

The Supreme Court has repeatedly held that the executive branch has broad discretion when it comes to national security judgments about which aliens may be admitted and which should be expelled from the United States. Nevertheless, because §1227 says the Secretary of State must have a reasonable ground to believe the alien’s presence or activities in the U.S. could cause “serious adverse foreign policy consequences,” counsel for Khalil will argue that the court has authority to review whether Secretary Rubio’s judgment is “reasonable.”

It would be highly controversial for a politically unaccountable judge — who has no constitutional responsibility for foreign policy, national security, or immigration enforcement — to substitute the court’s judgment for that of the Secretary of State, especially one who was just unanimously confirmed by the Senate to steer American foreign policy. I do not believe a majority of the Supreme Court would abide such judicial imperialism.

Alas, I believe there are many progressive lower court judges appointed by Democratic presidents who would not hesitate to second-guess Rubio’s judgment.

As I detailed in today’s piece, I believe the administration has the authority to deport Khalil based on the “terrorist activity” provision of §1227, on the theory that his activities “endorse” or “espouse” the activities of Hamas, which has long been a formally designated terrorist organization under federal law. To my mind, it would be seem preferable for the administration to premise Khalil’s deportation on his own pro-terrorist activities than on Secretary Rubio’s judgment regarding the foreign policy consequences of those activities.

On further review, however, I think the administration is right.

To repeat, §1227 incorporates by reference the “terrorist activities” provision in the exclusion statute — specifically, subsection (a)(3) of §1182, which prescribes the excludability of aliens who, among other things, represent “a political, social, or other group that endorses or espouses terrorist activity” (that’s subsection (a)(3)(B)(i)(IV)(bb) — a mouthful, I know).

That should cover Khalil . . . but there’s a catch. The “foreign policy” deportation provision of §1227 (excerpted above) incorporates by reference a potentially significant exception found in the exclusion statute — namely, §1182(a)(3)(C)(iii).

That exception states:

An alien … shall not be excludable or subject to restrictions or conditions on entry into the United States … because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien’s admission would compromise a compelling United States foreign policy interest. [Emphasis added.]

Maddeningly, this exception is one of many provisions in our law that attempt both to (a) vest aliens with the same First Amendment protections American citizens enjoy, and (b) skew the system so that, unless the government can prove commission in violent or illegal activity, it is difficult to deport or exclude aliens on ideological grounds — even aliens who harbor anti-American, counter-constitutional, or hate-driven ideologies (such as sharia supremacism, which, among its other noxious elements, is inherently antisemitic).

I have been arguing for over a decade that this is grossly irresponsible and that the Constitution does not require it. (See, e.g., here, as well as my 2010 book, The Grand Jihad.) An alien’s admission to or presence in the United States is a privilege, and our fundamental law does not require the government to admit any non-Americans. Nevertheless, the current against ideology-based immigration restrictions has been a long-term trend in statutory law and government policy. It started during the Cold War, when progressives contended that anti-anti-Communism was more dangerous than Communism itself. It picked up steam after jihadist terrorism became a profound threat in the 1990s, when administrations of both parties recoiled from the remorseless fact that jihadism is driven by sharia supremacism — an interpretation of fundamentalist Islam prevalent in the Middle East and many Islamic enclaves that have sprouted up in the West.

I do not believe that Khalil’s activities in the U.S. should be deemed lawful speech and association. If reports are correct, Khalil was active as an agent of agitators who carried out lawless activities. That is not mere speech and association, and it would be unlawful if engaged in by Americans — indeed, that is why dozens of Americans were arrested in connection with the campus unrest.

Nevertheless, the Trump administration is clearly trying to ensure that it has a legal basis to deport pro-Hamas activists even if a court finds that their behavior would have been immune from prosecution, on First Amendment grounds, if engaged in by Americans. It thus makes sense to rely on Secretary Rubio’s judgment regarding the foreign policy ramifications of Khalil’s activities.

As a secondary position, the administration should also argue that Khalil is deportable for pro-Hamas activity. The Justice Department should also be aggressively investigating to uncover whether the conduct of Khalil and his cohort is worthy of prosecution — as material support to terrorism and/or as any form of immigration fraud (i.e., did Khalil and others similarly situated make misrepresentations or material omissions in seeking entry into the United States or in seeking to adjust their immigration status?).

As we’ve seen with the surge of Jew-hatred and pro-terrorist agitation on campus and on our streets, it is vital to national security and domestic tranquility that we overhaul immigration laws that frustrate the government’s constitutional authority to exclude and deport aliens based on their adherence to anti-American, anti-constitutional ideologies. But that is a long-term project as to which, sadly, we can expect no meaningful help from Democrats — even though it wasn’t so long ago that there was a strong Democratic Party consensus on support for national security and for Israel.

For now, the Trump administration is trying to do what can be done within the confines of existing law. That law, construed properly, authorizes the government to exclude and deport pro-jihadist agitators.