March 10: Can Trump Deport Radicals?

Boehler bombs; Curb your DOGE; Trump offers peace to Iran

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The Big Story

On Saturday, agents from Immigration and Customs Enforcement (ICE) arrested Mahmoud Khalil, a foreign national, recent graduate from a master’s program at Columbia University, and a campus leader of Columbia University Apartheid Divest, the successor organization to the banned chapter of Students for Justice in Palestine. Khalil, according to reporting from the BBC, is now in an immigrant detention facility in Louisiana.

The Trump administration’s messaging about Khalil, and the reasons for his arrest and deportation, have been somewhat messy. The arrest was previewed by a Thursday Fox News report that the State Department had revoked the “first visa of an alien who was previously cited for criminal behavior in connection with Hamas-supporting disruptions,” though the statement did not clarify what criminal behavior Khalil had been cited for. Border czar Tom Homan told Fox that Khalil had violated his visa terms by “locking down buildings and destroying property” at Columbia, but Khalil was (to our knowledge) never arrested for that behavior, and his brief suspension from Columbia last April was revoked after the university concluded there was no evidence to support it. On Sunday, a spokesman for the Department of Homeland Security (DHS) said the arrest was “in support of President Trump’s executive orders prohibiting antisemitism” and that Khalil had “led activities aligned to Hamas, a designated terrorist organization.” In an X post responding to a story about the arrest, Secretary of State Marco Rubio announced, “We will be revoking the visas and/or green cards of Hamas supporters in America so they can be deported.”

These statements have naturally raised First Amendment concerns, not all of them bad faith or opportunistic. Insofar as “antisemitism” refers to a set of beliefs, not criminal actions, it is protected by the First Amendment, and the president has no authority to “prohibit” it. To make matters somewhat more confusing, Khalil’s lawyer has claimed that Khalil is not on a student visa, as initial reports claimed, but is a lawful permanent resident with a green card who is married to a U.S. citizen. While section 212(a)(3)(B)(i)(VII) of the Immigration and Nationality Act (INA) classifies as inadmissible to the United States any alien who “endorses or espouses terrorist activity” or a “terrorist organization” (as suggested by the DHS spokesperson), it is unclear in practice how this prohibition would apply to a resident alien with substantial links to the United States. For instance, a 2017 memo on this question from ICE and Trump’s White House Office of Legal Counsel noted that courts had acknowledged First Amendment protections for lawful permanent residents on par with those of U.S. citizens, as well as for U.S. citizens (in this case, Khalil’s wife) with a substantial interest in the presence of the resident alien. “To the extent the government seeks to regulate the content of the speech of aliens through its power to exclude or expel,” the memo concluded, the Supreme Court would likely subject these efforts to “strict scrutiny.” Serious (i.e., felony-level) criminal behavior on Khalil’s part would provide stronger grounds for deportation, but thus far, none has been credibly alleged.

So, does all of that make Khalil’s arrest an “abuse of the administrative state,” which we should either deplore on principled grounds or cheer for because he’s bad guy and LOL, rules don’t matter anymore? Not quite. The Scroll spoke on the phone with Art Arthur of the Center for Immigration Studies, a longtime immigration judge and lawyer who served under the Clinton administration as the Acting Chief of the National Security Law Division in the General Counsel’s Office of the Immigration and Nationality Service, the precursor agency to DHS. Arthur was adamant that Khalil’s deportation was perfectly legal—not because Khalil committed any heinous crimes or because he had espoused support for terror, but because a separate section of the INA, 237(a)(4)(C)(i), grants the State Department broad authority to deport any 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.” The law includes protection for aliens whose “beliefs, statements, or associations” would be “lawful within the United States” but grants the secretary of state power to override these protections, as long as he notifies the chairs of the House and Senate Committees on the Judiciary and Foreign Relations.

The controlling precedent here is Matter of Ruiz-Massieu, a 1999 ruling from the Board of Appeals of the Justice Department’s Executive Office for Immigration Review, which held that:

A letter from the Secretary of State conveying the Secretary’s determination that an alien’s presence in this country would have potentially serious adverse foreign policy consequences for the United States, and stating facially reasonable and bona fide reasons for that determination, is presumptive and sufficient evidence that the alien is deportable under section 241(a)(4)(C)(i) of the Act, and the Service is not required to present additional evidence of deportability.

So all Rubio needs to do is write a letter providing “facially reasonable and bona fide reasons” in support of Khalil’s deportation, and the administration should, legally, be in the clear.

That said, we have to admit that we do not welcome a world in which anti-Israel speech from foreigners is the only class of radical or anti-American speech that earns the attention of immigration authorities. Existing immigration law permits the United States to refuse admission to a broad variety of aliens, including anyone “affiliated” with the Communist Party or any other “totalitarian” party; in Turner v. Williams (1904), the Supreme Court judged that it was within Congress’ authority to determine that “anarchistic views” were “so dangerous to the public weal that aliens who hold and advocate them would be undesirable additions to our population,” and therefore that anarchists could be legally barred from immigrating to the United States.

In other words, the point of such deportations should not be to “protect Jews” within a right-wing therapeutic state. The point should be to preserve the American way of life by declining to extend the privilege of residency to those whose allegiances and beliefs are incompatible with our own. The latter category includes foreign Hamas supporters but is not limited to them. If the administration broadens its focus to other sorts of foreign radicals (the Roy Singham network would be a good place to start), we suspect they’ll find a target-rich environment.

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The Rest

→The man responsible for Washington’s direct talks with Hamas, hostage envoy Adam Boehler, did a genuinely bizarre U.S.-Israeli media blitz on Sunday, inflaming tensions between Washington and Jerusalem and creating a substantial degree of confusion about the White House’s posture in cease-fire talks. The Times of Israel’s David Horovitz on Monday published a roundup of some of Boehler’s worst gaffes, including:

• Referring to Palestinian prisoners as “hostages”

• Referring to Israeli hostages as “prisoners”

• Saying, of his negotiating strategy with Hamas, that the best practice was to “identify with the human elements” of the people you’re talking to

• Confirming to CNN that Trump personally signed off on his talks, while refusing to confirm Trump’s approval in an interview with Israel’s Channel 13, saying only that “people in the White House” signed off on the talks

• Distancing the United States from Israel, telling CNN, “We’re the United States. We’re not an agent of Israel. We have specific interests at play.”

• Twice referring to the only living American hostage, Edan Alexander, by the wrong name

• Endorsing what we derided under Biden as the “Hezbollah solution” for Gaza, telling CNN, “You could see something like a long-term truce where we forgive prisoners, where Hamas lays down their arms, where they agree that they’re not part of the political party going forward. I think that’s a reality that’s real close.”

On Monday, Rubio characterized Boehler’s initiative as a “one-off situation” that “hasn’t borne fruit” and said that “our primary vehicle for negotiation on this front will continue to be [Middle East envoy Steve] Witkoff and the work he’s doing through Qatar.”

→Donald Trump appears to be limiting the authority of Elon Musk’s Department of Government Efficiency following pushback from his cabinet secretaries. In a Thursday post on Truth Social, Trump wrote that his secretaries would have final say over who is hired and fired within their agencies and that he had instructed DOGE to begin cutting with a “scalpel” rather than a “hatchet.” Over the weekend, The New York Times reported that the post had followed a tense cabinet meeting on Thursday in which Musk had clashed with Secretary of State Marco Rubio and Secretary of Transportation Sean Duffy. Duffy, according to the report, complained that Musk was trying to fire air-traffic controllers while his agency was dealing with multiple recent plane crashes; Musk called this a “lie” and demanded that Duffy produce the names of the people he had fired. Duffy responded that “there were not any names, because he had stopped them from being fired.”

→Quote of the Day:

We have a situation with Iran that something is going to happen very soon, very, very soon. You’ll be talking about that pretty soon, I guess. Hopefully, we can have a peace deal. I’m not speaking out of strength or weakness, I’m just saying I’d rather see a peace deal than the other. But the other will solve the problem.

That’s President Trump speaking to Fox News in an interview recorded Friday and aired on Sunday. In it, Trump confirmed last week’s reports that he had sent a letter to Iranian Supreme Leader Ayatollah Ali Khamenei, saying, “I’ve written them a letter saying ‘I hope you’re going to negotiate,’ because if we have to go in militarily, it’s going to be a terrible thing for them.” Khamenei publicly rebuffed the overture on Saturday, but in a Sunday social media post, Iran’s mission to the United Nations wrote, “If the objective of negotiations is to address concerns vis-à-vis any potential militarization of Iran’s nuclear program, such discussions may be subject to consideration.” On Monday, Fox reported that the United States had declined to renew a sanctions waiver—continually renewed by the Biden administration—allowing the Iraqi government to purchase electricity from Iran.

→And, right on cue …

→Chart of the Day:

That’s from a New York Times feature on the legacy of the COVID-19 pandemic; the chart, which uses data from Princeton University, shows the relative increase in time spent at home since 2003, when people spent about 16.5 hours per day at home.

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