Columbia student’s deportation arrest should scare all Americans

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The Trump administration came into office claiming to stand for free speech. Yet the arrest and detention of Mahmoud Khalil, a lawful permanent resident who led pro-Palestinian student protests at Columbia University, has dealt a serious blow to the First Amendment.

Going back to 1941, the Supreme Court has held that resident noncitizens have free-speech rights. Deporting Khalil for his political speech would violate this basic freedom — and set back First Amendment rights for all Americans.

Although President Donald Trump posted news of the arrest on Truth Social, the administration has not officially explained its legal grounds for seeking to deport Khalil. There are, however, only two provisions of immigration law that would plausibly fit the facts of his case as they have been reported. Both would almost certainly be unconstitutional as applied to Khalil.

The first, Section 237(a)(4)(C)(i) of the Immigration and Nationality Act, says that a noncitizen (known in legal terms as an “alien”) can be deported if the secretary of state “has reasonable ground to believe” that the person’s presence in the country “would have potentially serious adverse foreign policy consequences for the United States.”

This provision is rarely enforced. When the Clinton administration tried to use it in 1996 to deport a Mexican national whose extradition was being sought at the highest levels of the Mexican government, a federal district court judge — as it happens, Trump’s sister, Maryanne Trump Barry — held that the law was unconstitutional on grounds of vagueness, lack of an opportunity for the noncitizen to be heard and unlawful delegation of power by Congress.

The U.S. Court of Appeals for the Third Circuit, in an opinion by then-Judge Samuel Alito, vacated Barry’s judgment, not because it was legally wrong but because the ruling held that the noncitizen could not challenge the constitutionality of the law until he went through the ordinary immigration law process. Barry’s 1996 opinion is thus not a binding precedent.

Yet the “adverse foreign policy consequences” provision would pretty clearly violate the First Amendment as applied to someone who was being removed purely for political speech that would otherwise be constitutionally protected — which seems to be the case for Khalil.

In an important 2010 decision, the Supreme Court held that even advocating in favor of a terrorist organization is protected free speech unless it is coordinated with a foreign terrorist organization so as to count as material support of terror. So, unless the government has evidence to prove that Khalil was working for or with Hamas, which no one thus far has alleged, whatever he said as part of the Columbia protests is constitutionally protected. He can’t be punished for it by the government, including by the secretary of state.

Of course, the current Supreme Court might try to find a way to distinguish its own 2010 precedent. But Chief Justice John Roberts, who wrote it, would be unlikely to sell out its core holding. The liberals would join him, and I strongly suspect that justices Amy Coney Barrett and Brett Kavanaugh would, too.

The other legal provision the administration might try to use to justify Khalil’s deportation is Section 237(a)(4)(B) of the same Immigration and Nationality Act. This part says that someone can be deported if he “endorses or espouses terrorist activity or persuades others” to do so or “support a terrorist organization.”

Khalil will eventually have his day in court and be able to make these arguments. He is entitled to a hearing before an immigration law judge before deportation. Even before that happens, the Trump administration will have to appear before federal District Court Judge Jesse Furman in New York to explain why it thinks it was lawful to arrest and detain him.

That’s because Khalil’s lawyers filed a petition for habeas corpus in New York, where Khalil was arrested. If they managed to do so before he was taken to an ICE facility in Jena, Louisiana, as they say they did, the New York-based federal court will have jurisdiction.

That would be good news for him.

For one thing, Furman is one of the smartest and most highly respected district court judges in the country. When the Supreme Court blocked Trump’s efforts to undermine the 2020 Census, the opinion by Chief Justice John Roberts relied on Furman’s detailed lower court decision, a strong indication of the respect in which his work is held.

For another, the reason ICE took Khalil to Louisiana is almost surely because the agency wanted to make sure any litigation about his detention would take place under the jurisdiction of the highly conservative U.S. Court of Appeals for the Fifth Circuit. It’s much better for Khalil, or any detainee, to be before the U.S. Court of Appeals for the Second Circuit, which has jurisdiction over New York, where Khalil was living when arrested.

The trouble, of course, is that even if the system works and Khalil isn’t deported, his arrest will already have chilled free speech for everyone in the U.S. That’s the point of it. And damage like that is difficult to undo.