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Last Saturday, immigration agents arrested Mahmoud Khalil, a lawful permanent resident of the U.S., at his home in New York City, declaring that he would be deported as soon as possible. The Trump administration did not charge Khalil with a crime, nor did it seriously allege that he had committed one. Instead, it targeted him for his leadership in last year’s pro-Palestinian protests at Columbia University. Although Khalil holds a green card and is married to an American citizen, the administration asserted that it had the legal authority to expel him on the basis of his participation in First Amendment–protected speech, without even the pretense of due process. It swiftly transferred him to a notoriously dangerous immigrant detention center in Louisiana, where he remains while his lawyers fight his removal.
On this week’s Slate Plus bonus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discuss the government’s persecution of Khalil, the disturbing precedent it sets, and the broader threat it poses to all our civil liberties. A preview of their conversation, edited and condensed for clarity, is below.
Dahlia Lithwick: You and I have been following the Trump administration’s decision to more or less abduct and then disappear Mahmoud Khalil under a statute that opens the door for any green-card holder to be removed in apparent violation of basic constitutional rights. On Thursday morning, a spokesman for the Trump administration was literally unable to answer the question of whether this means any green-card holder can be deported on the basis of protected free speech. There was an emergency habeas hearing in Judge Jesse Furman’s New York courtroom on Wednesday. The government’s lawyers did not even pretend that Khalil had committed a crime. They just argued that they thought he was dangerous, dusting off an old statute to do it, and then said they moved him from New York to Louisiana—quite deliberately, so that Judge Furman would not have jurisdiction over the case.
I see these actions as so dangerous for basic constitutional protections. If Khalil committed a crime, charge him with a crime. But holy cow, this feels like the whole shooting match in terms of speech and assembly and other First Amendment–protected values. And I don’t know how to think about the fact that this administration doesn’t even believe he deserved due process.
Mark Joseph Stern: It is ghastly and horrifying. And no matter what anyone thinks of the underlying speech here, I don’t think any American should approve of what the Trump administration is doing—because, as you said, this really is sort of the endgame for free speech and due process. The administration is citing an old law from the second Red Scare, originating in the Immigration and Naturalization Act of 1952, that says “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.” Secretary of State Marco Rubio has said that he thinks that Khalil’s free speech would have adverse foreign policy consequences, so Khalil must be deported. That is from the government’s papers so far; that is evidently the entire basis of this removal.
It’s really important to remember that this is an obscure and largely untested provision of the law. The only other time in recent history it was invoked was when the Clinton administration wanted to deport a former Mexican government official who was accused of corruption. But a federal judge at the time ruled that the law was an unconstitutional violation of due process.
That judge was Maryanne Trump Barry, the sister of Donald Trump. And the constitutional issues were never definitively resolved because the Justice Department decided to indict the official anyway, which is what it should have done in the first place, and then he died before the case could reach completion. That is the sum total of the precedent that the Trump administration is purporting to build off in its quest to jettison these basic constitutional principles—that the government has to follow some process before abducting and deporting you; that the government cannot retaliate against your constitutionally protected expression; and that the government should at least be able to cite some criminal activity you allegedly engaged in before it disappears you in the night.
I think this shows that the government’s legal arguments are on really thin ice. The law in question was enacted in a very different time, the second Red Scare, when there were much fewer civil liberties guaranteed to everyone, including immigrants. A lot of legal reasoning from that period has been totally discredited. And so I hope that the courts will step in and do the right thing. Judge Furman seems to want to. But as you noted, the first thing that the government did was try to move Khalil to a state within the U.S. Court of Appeals for the 5th Circuit, so that the 5th Circuit would have jurisdiction over his claim instead of, well, a real court. That’s a dark place to be.
I want to reiterate something you said, because it’s deadly serious: No matter what you think of what Khalil said and did, he was charged with no crime. He was given no notice. He was simply taken from his home and disappeared. And we have to be really, really afraid when there isn’t even an attempt on the part of government lawyers to say there was a crime—when, instead, they simply hang everything on a dusty old statute and a dubious claim that we think he’s dangerous to the United States. Because if they’re coming for that, they’re coming for all of us.
I also want to emphasize that the First Amendment doesn’t distinguish between citizens and noncitizens, or lawful permanent residents and everyone else. So the idea that your green card is subject to revocation because of something you said is really hard to square with the constitutional text. And it’s important to notice the administration just pulling out these old, discredited statutes and using them to say: “Oh, we don’t need to do due process at all. We don’t need to give notice and the ability to be heard. You’re done.” There’s an irony here, because when the Biden administration tried to use old statutes as the basis for major policies, the Supreme Court came down like a hammer. But I guess using Red Scare statutes that have never been lawfully deployed to this end because, you know, it’s just the fundamental right to speak and assemble—nothing too important, right?
It is especially hard for me to swallow coming off of four years of the Biden administration getting smacked down at every turn whenever the Justice Department tried to use a relatively old or arguably obscure law to justify and defend its policies. And some of these laws weren’t even obscure! The Biden administration tried to impose a clean power plan through the Clean Air Act, which has clear language empowering the EPA to do just that. But the Supreme Court dismissed that language as a “backwater” provision and struck down the plan. There was a major federal law passed after 9/11 that gave the Education Department sweeping authority to relieve student loans, but when the Biden administration invoked it to try to forgive student loans because of COVID, it got smacked down. Rinse and repeat with the bump stock ban, the eviction moratorium, and more—Biden’s Justice Department cited a valid law from yesteryear, the Supreme Court said it didn’t really count.
Now we have the Trump administration trying this tactic, but with an evil provision of a dangerous law based on a discredited conception of the Constitution. It certainly makes me fear that the Trump administration is going to come out soon with an argument based on the Comstock Act to restrict medication abortion. After all, the Justice Department recently notified courts that it is reviewing its position on medication abortion. I think it’s very likely that it will start citing the 1873 Comstock Act—this dusty old law that courts treated as unconstitutional for decades—and use it as a basis to restrict access to abortion pills. Again: Either this tactic is legitimate and all presidents can use it, or it shouldn’t be done at all, and laws have a de facto expiration date. It cannot be that only Republican presidents get to sic their lawyers on the law books and have them pluck out one sentence from a statute no one has read in 50 years and say it’s the basis for unlimited, unchecked power.
I see your 1873 Comstock Act and raise you the Alien Enemies Act of 1798, which by comparison makes Comstock look like a shiny newborn baby. The administration is reportedly trotting out the Alien Enemies Act to grant themselves wartime authority to hurry along unlawful mass deportation plans in the weeks ahead. This is, again, a statute entirely of another era, designed to be invoked when the United States is at war with a foreign country or under invasion. There’s no credible claim that we are at war or facing invasion, yet this will be the 18th-century lever that gets Trump where he wants to go.
So I want to underline what you’re saying, Mark, which is that any idiot can pull some old statute out of a book, melt it down, and repurpose it to do evil. But the degree to which this is cynically being done in one area after another, day after day, in a kind of hurricane of bad faith, so that it’s almost impossible to keep up, raises this question you and I keep asking: Can the courts possibly keep up? And what will the Supreme Court do? Are we just sitting here watching basic tenets of freedom and democracy being disassembled in this cynical way and hoping that Amy Coney Barrett and John Roberts will save us? It’s a really grim day for the rule of law.
The Alien Enemies Act was the basis of interning law-abiding immigrants during World War I and World War II. It was the basis of early Japanese internment at the outset of World War II. Now we have to hope that John Roberts meant it when he said that Korematsu has been repudiated by the court of history. And whenever thousands of people’s rights ride on John Roberts and Amy Coney Barrett deciding that civil liberties can survive for 24 more hours, we’re in a bad place.
