Deport Foreign Students Who Celebrate Mass Murder: Should We? Can We?

Summary

• President Biden has eloquently proclaimed that “[t]he bloody hands of the terrorist organization Hamas” unleashed “pure, unadulterated evil”, with “[m]ore than 1,000 civilians slaughtered” in Israel.
• Persons in the United States, apparently both citizen and alien, have openly celebrated Hamas’ mass murder. Since, I presume, Hamas would have gladly killed every Jew in Israel had it only had the opportunity, this celebration is not too far removed from the celebration of genocide.
• The celebration of mass murder/genocide has been most notably documented on U.S. college and university campuses, often catalyzed by campus chapters of Students for Justice in Palestine.
• It is one thing for U.S. citizens, who have the right to remain here for the rest of their lives, to celebrate mass murder/genocide. It is another thing for aliens to do so who are our nation’s guests and subject to removal.
• The Immigration and Nationality Act provides that aliens who endorse or espouse terrorist activity are inadmissible and, for those already admitted, deportable.
• U.S. Sen. Tom Cotton has asked Secretary of Homeland Security Alejandro Mayorkas to “immediately deport any foreign national — including and especially any alien on a student visa — that has expressed support for Hamas and its murderous attacks on Israel” and 19 U.S. representatives, led by Jim Banks and Jeff Duncan, have asked Mayorkas to remove aliens on student and other temporary visas who have supported Hamas’ terrorist activity.
• The Supreme Court has ruled it to be unconstitutional, in violation of the First Amendment, for persons to be subject to criminal penalty for endorsing or espousing terrorist activity (except to the extent such speech is “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action”).
• However, it is not necessarily unconstitutional for the federal government to deport an alien for such endorsement or espousal of terrorist activity:
  • The Supreme Court has made clear that deportation does not equate to punishment.
  • While the Supreme Court has circumscribed somewhat Congress’ plenary power over immigration over the years, this has only been the case regarding procedural due process rights, not substantive rights such as freedom of speech.
  • The Supreme Court has found campaign finance restrictions on aliens to be constitutional even as it has found other restrictions to constitute violations of the First Amendment.
  • The Supreme Court has rejected selective prosecution claims and allowed the federal government to single out illegal aliens for deportation based on their support of terrorism.
  It appears very likely that the Supreme Court would uphold the constitutionality of removals based on the “endorse or espouse” ground of inadmissibility/deportability for aliens present in the U.S. The likelihood is highest in the case of illegal aliens and lowest in the case of permanent residents.
• President Biden’s DHS should attempt to remove those aliens who have “endorsed or espoused terrorist activity”. At the top of the priority list should be those foreign students who have endorsed or espoused the genocidal views of SJP chapters justifying the slaughter of every Jewish man, woman, and child living in Israel as a “settler” and “lounger” who is fair game for death in pursuit of the “liberation” of Palestine “from the river to the sea” through “confrontation by any means necessary”.

Introduction

President Biden has eloquently proclaimed that “[t]he bloody hands of the terrorist organization Hamas” had unleashed “pure, unadulterated evil”, with “[m]ore than 1,000 civilians slaughtered”, “[p]arents butchered using their bodies to try to protect their children”, “[s]tomach-turning reports of ... babies being killed.” Biden has also called Hamas’ attacks against Israeli civilians “a campaign of pure cruelty — not just hate, but pure cruelty — against the Jewish people” and stated that Hamas unleashed “the deadliest day for Jews since the Holocaust ... that [had] reminded us all [of] that expression I learned from my dad early on: ‘Silence is complicity.’”

Well, if silence regarding mass murder is complicity, what should we call the celebration of mass murder? That enters a whole other realm. And, given that it's safe to assume Hamas would gladly have killed every Jew in Israel had it the opportunity, the celebration of Hamas’ mass murder is not too far removed from the celebration of genocide.

And yet, persons in the U.S., apparently both citizen and alien, have indeed celebrated Hamas’ mass murder. This has been most notably documented on U.S. college and university campuses.

Students for Justice in Palestine

Much of the bloodthirsty bacchanalia has apparently been catalyzed by campus chapters of Students for Justice in Palestine (SJP). The national organization states that it “supports over two hundred Palestine solidarity organizations on college campuses across occupied Turtle Island (U.S. and Canada)” and that it “seek[s] a political framework that addresses collective liberation from Palestine to the Rio Grande.” No, I am not making this up.

The Anti-Defamation League (ADL), which describes itself as “the leading anti-hate organization in the world … . [whose] mission is to ‘stop the defamation of the Jewish people and to secure justice and fair treatment for all[]’”, reports that in the wake of the Hamas slaughter:

• Numerous SJP chapters released inflammatory statements in support of Palestinians seizing control of Israeli territory, including some which explicitly endorse the use of violence and attacks on civilians. “We reject the distinction between ‘civilian’ and ‘militant.’ We reject the distinction between ‘settler’ and ‘soldier,’” The George Washington University SJP wrote. “A settler is an aggressor, a soldier, and an occupier even if they are lounging on our occupied beaches.” The SJP chapter of CUNY Law shared, “If you support Palestine understand that necessitates supporting our right to defend ourselves and liberate our homeland by any means necessary.”

• Some SJP chapters issued pro-Hamas messaging and/or promoted violent anti-Israel propaganda social media accounts. The University of Illinois SJP chapter shared a video which shows what appears to be a Hamas terrorist filming himself from inside the home of an Israeli family during the attack. At least three chapters referred readers to Resistance News Network (RNN) — part of an encrypted messaging application that shares violent images and videos of attacks on Israelis and disseminates Hamas propaganda — since the Hamas attack.

The ADL also reports that “[c]hapters have ... adopted the image of a person flying in a paraglider, a clear reference to the Hamas terrorists who utilized paragliders as part of their massacre of Israeli civilians, as a symbol of their call for resistance.” As an example, it reproduces a copy of the Bard University chapter’s “Statement in Support and Solidarity of the Unity Intifada”, which proclaims that:

Bard SJP unequivocally supports the Unity Intifada in Gaza and the broader occupied Palestinian lands. Liberation is a material process that requires confrontation by any means necessary. From the river to the sea [a reference to the hoped for destruction of Israel], we will continue to fight for the honor and dignity of Palestinian people. We are part of this movement.

U.S. Reps. Jim Banks (R-Ind.), Jeff Duncan (R-S.C.) and 17 other members of the House of Representatives stated in a letter they sent to Secretary of Homeland Security Alejandro Mayorkas and Secretary of State Antony Blinken on October 20 that:

The [SJP] chapter at Tufts University issued a statement praising Hamas terrorists as “liberation fighters” who, in their murderous attack on Israeli civilians, had shown “the creativity necessary to take back stolen land.” The SJP chapter at Swarthmore praised Hamas terrorists for having “valiantly confronted the imperial apparatus” of Israel, and honored the Hamas terrorists who died during the assault as “martyrs who have sacrificed their lives for liberation.”

And, following the slaughter, Inside Higher Ed reported that “[t]he SJP branch at the University of Illinois at Chicago called an ‘emergency rally for Palestine,’ saying, ‘Resistance is justified when people are occupied.’”

The Jerusalem Center for Public Affairs, which describes itself as an “independent research institute, serving as Israel’s global embassy for national security and applied diplomacy”, has reported that:

• SJP has been linked to terror groups. Some have defined SJP as a campus front for Hamas at University of California, Berkeley. Principal backers of SJP include founders, financial patrons and ideological supporters who have been connected to Islamist terror organizations such as Hamas, Hizbullah, Palestinian Islamic Jihad, and the marxist Popular Front for the Liberation of Palestine (PFLP).

• [SJP] is a byproduct of American Muslims for Palestine (AMP), an organization whose leaders were former members of Palestinian and Islamist terror organizations. AMP was founded in 2005 by the former leaders of three organizations; Kindhearts, the Islamic Association for Palestine, and the Holy Land Foundation for Relief and Development. All three organizations were implicated by the U.S. government between 2001 and 2011 for financing Hamas.

Congress Responds

On October 16, U.S. Sen. Tom Cotton (R-Ark.) wrote to Secretary Mayorkas stating that:

I write to urge you to immediately deport any foreign national — including and especially any alien on a student visa — that has expressed support for Hamas and its murderous attacks on Israel. These fifth-columnists have no place in the United States.

Federal law is clear that any alien who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization” is inadmissible and must be deported. Swiftly removing and permanently barring from future reentry any foreign student who signed onto or shared approvingly the anti-Semitic letter from the Harvard Palestine Solidarity Committee on October 7 would be a good place to start.¹

The appalling explosion of anti-Semitism in the United States over the past few weeks should disturb anyone who shares American values. While American citizens may have a First Amendment right to speak disgusting vitriol if they so choose, no foreign national has a right to advocate for terrorism in the United States.

And the letter from Reps. Banks, Duncan, and other House members asked Secretaries Mayorkas and Blinken:

Does your Department have reason to believe that any current F1 [student], J1 [exchange visitor], H1 [temporary foreign worker], or other non-immigrant visa holders have been rendered ineligible as a result of ‘endorsing or espousing’ terrorist activity by Hamas?

Has your Department moved to review or revoke the visas of any such individuals and place the holder into ... removal proceedings?

Endorsing or Espousing Terrorism: The USA PATRIOT Act and the REAL ID Act

Do foreign nationals seeking to come to our country, or those already here, have a right to advocate for terrorism and genocide? As Sen. Cotton noted, the Immigration and Nationality Act (“INA”) in fact provides that any alien who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization” is generally inadmissible — that is, “ineligible to receive visas and ineligible to be admitted to the United States”. The INA separately makes deportable any such aliens who have already been admitted. I should know — in 2005, as chief counsel for the House Judiciary Committee’s Subcommittee on Immigration, Border Security, and Claims, I assisted Committee Chairman F. James Sensenbrenner, Jr., and Subcommittee Chairman John Hostettler in securing the enactment of these provisions in the “REAL ID Act” (as part of the “Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005”). The House approved the conference report by a vote of 368-58, with both Republicans (225-3) and Democrats (143-54) supporting it. The Senate, including Sen. Joe Biden (D-Del.), unanimously approved the conference report (100-0).

David Cole, professor at Georgetown University’s law school (on leave) and currently the American Civil Liberties Union’s national legal director, has written that:

• Republicans sneaked the immigration language into the final Iraq spending bill in a closed conference. But it did not come out of nowhere. Wisconsin Republican James Sensenbrenner ... sought to introduce the same provisions as part of the Intelligence Reform Act, prompted last December by the 9/11 Commission Report. But the language was dropped so that the intelligence bill could pass by consensus. Sensenbrenner vowed to reintroduce his immigration language. In the Iraq bill, he found a vehicle that almost no one could vote against. The vote in the Senate was 100 to 0.

• [The] expanded grounds for deportation and exclusion received virtually no discussion.

• [I]t appears that all Congress learned from history is that when you want to resurrect censorship at the border, you should do so while no one is looking.

I agree with Cole to the extent that the provisions were not really debated on the House floor in 2005, that the “Emergency Supplemental” was must-pass legislation, and that the provisions had been adopted by the House the prior year in the “9/11 Recommendations Implementation Act” (designed to implement the recommendations of the 9/11 Commission) but were then stripped out in the Conference Committee by the Senate before the final legislation was enacted.

However, I disagree with Cole to the extent that the provisions weren’t just buried deep in the bowels of the “9/11 Recommendations” Act when no one was looking and where no one would look. They were added by a floor amendment by U.S. Rep. Mark Green (R-Wisc.). His amendment — dealing exclusively with the terrorism grounds of inadmissibility and deportability — was debated on the House floor. Curiously, Sheila Jackson Lee (D-Texas), the Ranking Democrat on the Subcommittee on Immigration, Border Security, and Claims and the only Democrat to speak against the amendment, never even mentioned the “endorse or espouse” language. She focused her remarks on the “material support” of terrorist groups provision and the expansion of anti-terrorism sanctions involving terrorist groups that had not been so designated by the secretary of State. Jackson Lee said that “So many of our constituents ... have Muslim names and are affiliated with organizations who have good intentions but may be misconceived and therefore they are wrapped up in this expedited removal.” (I should note that the Green amendment had nothing to do with expedited removal.) In any event, the House then approved the amendment by a vote of 283-132, with almost all Republicans (219-1) and one third of Democrats (64-130) in support.

As Cole noted:

[A]ll the blame [or credit, depending on one’s outlook] cannot rest on Sensenbrenner and the Republican conferees. Liberal advocacy groups like the ACLU and the National Immigration Forum didn't make much noise about the changes to who can be deported and excluded. They chose instead to focus on the [REAL ID Act’s] new standards for driver's licenses and asylum. That choice may have made strategic sense. The licensing scheme ... potentially affects all of us. And while asylum affects only immigrants, applicants for asylum are more sympathetic than those who are labeled as terrorists.

The REAL ID Act’s “endorse or espouse” provisions strengthened language that the USA PATRIOT Act had added to the INA in 2001:

[An alien is inadmissible who] has used the alien’s position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization, in a way that the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities.

The House Judiciary Committee’s report noted that the USA PATRIOT Act’s “provision[ is] similar to current law’s ‘foreign policy’ ground of inadmissibility, barring entry to an alien whose entry or proposed activities in the U.S. would have potentially serious adverse foreign policy consequences for the U.S.” The committee had reported to the House a version of the legislation that also contained an associated ground of deportability (for aliens who had been admitted to the U.S.):

[An alien is deportable who] has used the alien’s prominence within a foreign state or the United States —

(I) to endorse, in a manner that is intended and likely to incite or produce imminent lawless action and that has been determined by the Secretary of State to undermine the efforts of the United States to reduce or eliminate terrorist activities, terrorist activity; or

(II) to persuade others, in a manner that is intended and likely to incite or produce imminent lawless action and that has been determined by the Secretary of State to undermine the efforts of the United States to reduce or eliminate terrorist activities, to support terrorist activity or a terrorist organization.

This deportation language was not contained in the version of the bill that was brought to the House floor for consideration.

Should We Make Aliens Who Endorse or Espouse Terrorist Activity Inadmissible and Deportable?

It is certainly hotly debated whether federal law should make aliens who endorse or espouse terrorist activity inadmissible and deportable. U.S. Rep. Barney Frank (D-Mass.) stated in the 2001 House Judiciary Committee report that:

[I]t is the right of Americans to hear, debate with, and learn from others that is impinged when we exclude people because we find their political views unpopular, unsettling or dangerous.

One of the concerns I had with the original draft ... submitted to us by the Justice Department was ... [that it] would have allowed the exclusion of visa applicants who had “endorsed or espoused terrorist activity.” ... [M]ere “espousal or endorsement” ... casts far too wide a net of exclusion ... . Given our history, it is entirely likely that such a grant of authority would have led to the exclusion of people who had written about the right of oppressed people to respond with violence against their oppressors, and in specific cases, it almost certainly would at various points in our fairly recent history have been used to exclude supporters of the African National Congress, or the Irish Republican Army.

...

I was very concerned that the “endorsed or espoused” language could lead to a renewal of some restriction on people whom Americans should continue to have the right to hear if they so choose. For this reason, I was very pleased that ... the exclusion now applies not to anyone who endorses or espouses, but rather to anyone who “has used the alien’s prominence ... [.”]

[This] exclusion is not a blanket one on people who “endorse or espouse” activity that some might classify as terrorist, but rather can only be invoked if the Secretary of State finds that this is more than mere expression of opinion, but in fact affects our efforts to prevent terrorist activity. This is for those who believe firmly in freedom of expression a crucial distinction, between the expression of opinion and general advocacy, which a free society should protect, and on the other hand efforts which are part of organized activity that result in actual terrorism.

...

[F]or me and others ... our acceptance of this particular phrase is based on our understanding that it is not an effort to exclude people whose advocacy of particular ideas might be unpopular at a given time in America — justly or not — but rather is an effort to empower our officials to exclude people whose efforts have in fact facilitated “terrorist activities”.

After the REAL ID Act was enacted into law, Cole penned a scathing opinion piece (from which I have already quoted) entitled “Keep Out: Border control Joe McCarthy would have loved”:

• What if Congress resurrected one of the most ill-conceived laws of the McCarthy era and nobody noticed? In 1952, the House and Senate passed the McCarran-Walter Act, which created an ideological litmus test for entry to the United States by barring foreigners with disfavored ideas or affiliations. The law denied admission to communists and anarchists, among others. ... Congress repealed the McCarran-Walter Act in 1990 with great fanfare about eliminating thought-control at the border.

  [The REAL ID Act] would allow the United States once again to keep out and to deport foreign nationals not for their conduct, but for their politics — their ideas, their speech, and the groups with which they associate.

  ...

  Where the McCarran-Walter Act's concern was communists and anarchists, the new law ostensibly focuses on terrorists. By comparison, it makes the Patriot Act look good. ... Any foreigner can be deported for “endorsing or espousing terrorist activity[]” ... Under the Patriot Act, speech and membership in a terrorist group were grounds for preventing foreigners from entering the country, but not for deporting those who already live here and are protected by the First Amendment. The new law is also retroactive, so people can be deported today for things they did or said lawfully years ago.

• From the perspective of safeguarding civil liberties ... the expansion of the grounds for deportation is by far more egregious [than the REAL ID Act’s driver’s license and asylum provisions].

The American Immigration Lawyers Association (“AILA”) proclaimed that the REAL ID Act “undermine[s] our fundamental commitment to free speech and association”. Jeanne Butterfield, AILA’s then executive director, stated that:

Congress, when it passed the Intelligence Reform and Terrorism Prevention Act of 2004, recognized that provisions broadly and unfairly targeting all immigrants do nothing to contribute to our nation’s security[. ]Yet the ink is barely dry ... and we are already seeing a fresh push to pass these discredited measures under the guise of national security.

I’m sure that none of AILA’s angst had anything to do with the fact that Butterfield had previously been executive director of another organization, the Palestine Solidarity Committee (PSC). Matt Hayes has written that the PSC was “a front for the Popular Front for the Liberation of Palestine” (PFLP) — yes, an organization that principal backers of SJP were connected to and an organization on the State Department’s list of designated foreign terrorist organizations since 1997. Hayes wrote that:

[The PFLP] was described by the New York Times as [having] spearheaded international Palestinian terrorism in the late 1960’s and 1970’s. ... In 2001 alone, [it] exploded seven car bombs, a bus and motorcycle bomb, and several bombs placed near high-pedestrian traffic areas, like malls across Israel. In October, 2001, it assassinated Israel's Minister of Tourism as he walked to his home.

AILA defended Butterfield by noting that its “members have a broad range of views on Middle East issues” and proclaiming that:

Jeanne's own history before she came to AILA included active work over many years on the issue of Israeli/Palestinian peace and Palestinian human rights. She worked with the Palestine Solidarity Committee, an American organization focused on educating the American public about the nature of the Israeli/Palestinian conflict and advocating for Palestinian rights.

Is that also how AILA would describe SLP?

In any event, let’s put aside euphemisms for mass murder such as the “right of oppressed people to respond with violence against their oppressors” and “activity that some might classify as terrorist”. Let’s put aside euphemisms for the advocacy of mass murder such as “advocacy of particular ideas [that] might be unpopular at a given time in America”, “political views [we find] unpopular, unsettling or dangerous”, and “disfavored ideas”.

Certainly, President Biden has paid no heed to such wordplay. When asked at a press briefing about members of Congress who were equating the Hamas attacks with actions previously taken by Israel, White House Press Secretary Karine Jean-Pierre responded:

We believe [the statements are] wrong. We believe they’re repugnant, and we believe they’re disgraceful. Our condemnation belongs squarely with terrorists who have brutally murdered, raped, kidnapped hundreds, hundreds of Israelis. There can be no equivocation about that, there are not two sides here, there are not two sides.

I would go further and postulate that the individuals making such statements are themselves repugnant and disgraceful. In any event, it is one thing for U.S. citizens to make the statements. It is wholly another for non-citizens to make them. U.S. citizens have the right to remain in the United States for the rest of their lives (unless, with regards to naturalized citizens, their naturalization should be revoked). Aliens visiting or living here do not. All aliens, even those granted permanent residence, are our guests and are subject to removal.

Is It Constitutional to Deny Entry to or Deport Aliens for Their Endorsement or Espousal of Terrorism?

Sen. Cotton is correct, as I have discussed, that no alien has a right under federal law to advocate for terrorism in the United States (except to the extent that such aliens are eligible for relief under the regulations (here and here) issued pursuant to the legislation implementing the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment). But is Sen. Cotton correct as a matter of constitutional law? For that matter, are the REAL ID Act’s grounds of inadmissibility and deportability for endorsing and espousing terrorist acts constitutional?

The First Amendment to the U.S. Constitution of course provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Aliens Seeking to Enter the U.S.

As the late Barbara Jordan, congressional giant and civil rights heroine, stated as chairwoman of the U.S. Commission on Immigration Reform, “Immigration is not a right guaranteed by the U.S. Constitution to everyone and anyone in the world who wishes to come to the United States. It is a privilege granted by the people of the United States to those whom we choose to admit.” As the Supreme Court similarly concluded in 1950 in United States ex rel. Knauff v. Shaughnessy, “[A]n alien who seeks admission to this country may not do so under any claim of right. Admission of aliens ... is a privilege granted by the sovereign United States Government.” And as the Supreme Court reiterated in 1972 in Kleindienst v. Mandel, an ”unadmitted and nonresident alien ... ha[s] no constitutional right of entry to this country as a nonimmigrant or otherwise.” Thus, foreign nationals who endorse or espouse terrorist activity have no constitutional right to complain about their lack of welcome.

However, the Supreme Court in Mandel did hold that it had jurisdiction to review the denial of a Belgian journalist and self-described revolutionary Marxist’s application for a waiver of visa ineligibility when the constitutional rights of U.S. citizens were implicated — “whether the First Amendment confers upon [U.S. citizens] because they wish to hear, speak, and debate with [the journalist] in person, the ability ... to compel the Attorney General to allow [his] admission.”

The Court made clear that “Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry.” It first noted that:

The Court without exception has sustained Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Boutilier v. [INS] [1967] “Over no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens. Oceanic Navigation Co. v. Stranahan [1909].

The Court then reasoned that:

In almost every instance of an alien excludable under [the then ground of inadmissibility for advocating world communism], there are probably those who would wish to meet and speak with him. ... Were we to endorse the proposition that governmental power to withhold a waiver must yield whenever [such a] bona fide claim is made ... one of two unsatisfactory results would necessarily ensue. Either every claim would prevail, in which case the plenary discretionary authority Congress granted the Executive becomes a nullity, or courts in each case would be required to weigh the strength of the audience's interest against that of the Government in refusing a waiver to the particular alien applicant, according to some as yet undetermined standard.

The Court’s resolution of the issue was as follows:

We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case. [Emphasis added.]

Federal courts have since expanded the holding in Mandel. For instance, in 1990, the 1st Circuit in Adams v. Baker expanded the limited judicial review required in Mandel to include review of the denial of a visa application where there was an alleged violations of a U.S. citizen’s First Amendment rights, as did the 2nd Circuit in 2009 in American Academy of Religion v. Napolitano.

American Academy of Religion provides an instructive overview of how the federal courts have applied Mandel’s “facially legitimate and bona fide” test:

[W]hat will render the Government's reason “facially legitimate and bona fide” ... and ... does the prohibition on “look[ing] behind” the decision mean that a reviewing court may not determine, after considering evidence, whether the facts support the Government's reason?

...

In Mandel, the Supreme Court provided no elaboration of “facially legitimate” or “bona fide.” The reason given for denial of a waiver was that Mandel had exceeded the bounds of his visa on a previous visit to the United States. ... The Court said only that with this statement of a reason, “the Attorney General validly exercised the plenary power that Congress delegated to the Executive.” ... It should be noted that, unlike a visa denial, where statutory provisions specify grounds for inadmissibility, no statute specifies any grounds for the discretionary decision to decline to waive inadmissibility. The “reason” relied on in Mandel was what the alien had done, i.e., exceeded the bounds of a prior visa.

The decisions entertaining First Amendment challenges to visa denials after Mandel have concerned statutory grounds of inadmissibility. In Bustamente [v. Mukasey [2008] ... the visa was denied pursuant to [a ground of inadmissibility for] an alien whom the consular officer has reason to believe has trafficked in a controlled substance. ... The Ninth Circuit ruled that this was a facially legitimate reason because it was a statutory basis for inadmissibility. ... The Court also ruled that the requirement of a “bona fide” reason was satisfied by the absence of an allegation that the consular officer “did not in good faith believe the information he had.”

...

In Adams, the visa was denied pursuant to [a ground of inadmissibility for] aliens “who advocate or teach” various forms of terrorism. ... The consular officer determined that Adams fit within that category “because of his advocacy of, and personal involvement with, [Irish Republican Army] terrorist violence, including participation in bombings.” ... The First Circuit ruled that the statutory ground and the alien's conduct together provided the “facially legitimate and bona fide” reason for the visa denial.

In Abourezk[ v. Reagan [1986], the visas were denied pursuant to [a ground of inadmissibility for] aliens who “seek to enter ... to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety or security of the United States.” The State Department determined that the aliens fit within that category “because of their personal status as officials of governments or organizations which are hostile to the United States.” ... The D.C. Circuit appeared to assume that a statutory ground of inadmissibility and conduct by the visa applicant fitting within the statute would satisfy the Mandel standard, but remanded for reconsideration of whether the statutory ground had been properly construed.

American Academy of Religion also provides an instructive overview of the question of whether “a reviewing court need only satisfy itself that the conduct alleged fits within the statutory provisions relied upon as the reason for the visa denial, or may [it] determine if there is evidence that either supports the reason or at least supports the consular officer's reasonable belief that the reason exists”. The court concluded that:

Mandel appears to foreclose any inquiry as to supporting evidence by stating that courts will not “look behind” the decision of the Executive Branch. ... The absence of an explicit statement precluding an evidentiary inquiry as to the consular officer's decision appears to be due to the ... plaintiffs' concession that the Government was entitled to “conclude that [his] Marxist economic philosophy falls within the scope of” [the ground of inadmissibility].

The court of appeals' decisions entertaining First Amendment challenges to visa denials have varied as to the appropriateness of an evidentiary inquiry into whether the facts support the consular officer's reason. In Bustamante, the Ninth Circuit made no inquiry as to whether the facts supported the consular officer's conclusion that the visa applicant was a drug trafficker. Acknowledging that Bustamante denied drug trafficking ... the Court stated, “Under Mandel’s limited inquiry, the allegation that the Consulate was mistaken about [Bustamante's] involvement with drug trafficking ... fails to state a claim upon which relief could be granted.”

...

In Adams, the First Circuit made some examination of evidence proffered by the Government, but did so only for the limited purpose of determining whether the evidence was sufficient “to support a finding of ‘reasonable belief’” that the visa had been denied on a valid statutory ground. ... Although the District Court had made findings that the visa applicant made statements providing a facially legitimate basis for his exclusion, the First Circuit declined to review those findings, concluding only that “the State Department had competent evidence upon which it could reasonably find that Adams participated in terrorist activities.”

...

In Abourezk[], the D.C. Circuit's ruling explicitly concerned only the issues of statutory interpretation. ... [T]he Court of Appeals appears to have contemplated some examination of evidence underlying the reason for the visa denial. At the outset the Court stated that “questions of material fact remain.” ... Later the Court expressed concern about the District Court's reliance on “in camera ex parte evidence,” ... and cautioned the Court, in the proceedings on remand, “to make certain that plaintiffs are accorded access to the decisive evidence to the fullest extent possible, without jeopardizing legitimately raised national security interests.”

The court in American Academy of Religion concluded that:

• We think the identification of both a properly construed statute that provides a ground of exclusion and the consular officer's assurance that he or she “knows or has reason to believe” that the visa applicant has done something fitting within the proscribed category constitutes a facially legitimate reason. ... We also conclude, in agreement with the Ninth Circuit, that the absence of an allegation that the consular officer acted in bad faith satisfies the requirement that the reason is bona fide.

• We conclude that we have to take literally the statement in [Mandel] that courts may not “look behind” exclusion decisions, whether the decision is the Attorney General's exercise of discretion to waive inadmissibility or the consular officer's decision that a statutory ground of inadmissibility applies to the visa applicant, at least in the absence of a well supported allegation of bad faith, which would render the decision not bona fide.

Also helpful is the concurrence of Justices Kennedy and Alito in the Supreme Court’s 2015 decision in Kerry v. Din:

• [Mandel’s] reasoning has particular force in the area of national security, for which Congress has provided specific statutory directions pertaining to visa applications by noncitizens who seek entry to this country.

• Here, the consular officer's determination that [the U.S. citizen’s] husband was ineligible for a visa was controlled by specific statutory factors. The [INA] establish[es] specific criteria for determining terrorism-related inadmissibility. The consular officer's citation of that provision suffices to show that the denial rested on a determination that [the] husband did not satisfy the statute's requirements. Given Congress' plenary power to “suppl[y] the conditions of the privilege of entry into the United States,” ... it follows that the Government's decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legitimate under Mandel.

  The Government's citation of [the ground of inadmissibility] also indicates it relied upon a bona fide factual basis for denying a visa. ... [The U.S. citizen] claims due process requires she be provided with the facts underlying this determination, arguing Mandel required a similar factual basis. It is true the Attorney General there disclosed the facts motivating his decision to deny Dr. Mandel a waiver, and that the Court cited those facts as demonstrating “the Attorney General validly exercised the plenary power that Congress delegated to the Executive.” ... But unlike the waiver provision at issue in Mandel, which granted the Attorney General nearly unbridled discretion, [the terrorism grounds of inadmissibility] specifies discrete factual predicates the consular officer must find to exist before denying a visa. [The U.S. citizen], moreover, admits in her Complaint that [her husband] worked for the Taliban government ... which, even if itself insufficient to support exclusion, provides at least a facial connection to terrorist activity. Absent an affirmative showing of bad faith on the part of the consular officer who denied [the] visa ... Mandel instructs us not to “look behind” the Government's exclusion ... for additional factual details beyond what its express reliance on [on the grounds of inadmissibility] encompassed.

• Under Mandel, respect for the political branches' broad power over the creation and administration of the immigration system extends to determinations of how much information the Government is obliged to disclose about a consular officer's denial of a visa to an alien abroad.

Thus, while a U.S. citizen could challenge an “endorse or espouse terrorist activity” visa denial on the basis of their First Amendment interest in hearing the alien, it seems clear that the challenge would fail as long as the consular officer in good faith knew or had reason to believe that the alien had endorsed or espoused terrorist activity.

Aliens Present in the U.S.

Let me freely admit up front that it would be unconstitutional, a violation of the First Amendment, for Congress to criminalize the “mere” endorsement or espousal of terrorist activity. In 1969, the Supreme Court issued a seminal decision in Brandenburg v. Ohio regarding a Ku Klux Klan leader who had been convicted for “advocat[ing] ... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and “voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism”. The Court ruled that:

• [T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said ... “the mere abstract teaching ... of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” [Emphasis added.]

• [W]e are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments.

And in 2010, the Supreme Court ruled in Holder v. Humanitarian Law Project that a statute criminalizing the provision of material support to foreign terrorist organizations was facially constitutional as to the First Amendment. Chief Justice John Roberts, Jr. stated (in his majority opinion) that:

• [M]ost importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups. [Emphasis added throughout.]

• [W]e in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations.

• [T]he statute does not penalize mere association with a foreign terrorist organization. As the Ninth Circuit put it: “The statute does not prohibit being a member of one of the designated groups or vigorously promoting and supporting the political goals of the group. ... What [it] prohibits is the act of giving material support. ...” Plaintiffs want to do the latter. Our decisions scrutinizing penalties on simple association or assembly are therefore inapposite.

Of particular note is the fact that the material support at issue in Holder did not involve the provision of weapons or funding to a terrorist organization. Rather, the material support consisted of speech, speech with the ostensible goal of fostering peace and engaging in political advocacy! The support consisted of:

“train[ing] members of [the Secretary of State designated foreign terrorist organization Partiya Karkeran Kurdistan] PKK on how to use humanitarian and international law to peacefully resolve disputes” ... “engag[ing] in political advocacy on behalf of Kurds who live in Turkey” ... “teach[ing] PKK members how to petition various representative bodies such as the United Nations for relief” ... train[ing] members of [the designated organization the Liberation Tigers of Tamil Eelam] LTTE to present claims for tsunami-related aid to mediators and international bodies” ... “offer[ing] their legal expertise in negotiating peace agreements between the LTTE and the Sri Lankan government” ... “engag[ing] in political advocacy on behalf of Tamils who live in Sri Lanka[].”

Chief Justice Roberts explained that:

• The First Amendment issue before us ... is not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct. It is instead whether the Government may prohibit what plaintiffs want to do — provide material support to the PKK and LTTE in the form of speech.

• Plaintiffs want to speak to the PKK and the LTTE, and whether they may do so ... depends on what they say. If plaintiffs' speech to those groups imparts a “specific skill” or communicates advice derived from “specialized knowledge” — for example, training on the use of international law or advice on petitioning the United Nations — then it is barred. ... On the other hand, plaintiffs' speech is not barred if it imparts only general or unspecialized knowledge.

• Given the sensitive interests in national security and foreign affairs at stake, the political branches have adequately substantiated their determination that, to serve the Government's interest in preventing terrorism, it was necessary to prohibit providing material support in the form of training, expert advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote only the groups' nonviolent ends.

Thus, it would clearly be unconstitutional to subject anyone — citizen and alien alike — to criminal penalties for endorsing or espousing terrorist activity — except to the extent that the speech 1) is directed to inciting or producing imminent lawless action and is likely to incite or produce such action; or 2) could itself be considered criminal material support.

However, it does not necessarily follow that just because Congress cannot, consistent with the First Amendment, criminalize the “mere” endorsement or espousal of terrorist activity that Congress cannot make such speech a ground of deportability.

In 1945, this possibility drove Justice Frank Murphy into a fit of apoplexy. He protested in his concurring opinion in Bridges v. Wixon that:

[T]he First Amendment and other portions of the Bill of Rights make no exception in favor of deportation laws or laws enacted pursuant to a "plenary" power of the Government.

Any other conclusion would make our constitutional safeguards transitory and discriminatory in nature. [T]he Government would be precluded from enjoining or imprisoning an alien for exercising his freedom of speech. But the Government at the same time would be free, from a constitutional standpoint, to deport him for exercising that very same freedom. The alien would be fully clothed with his constitutional rights when defending himself in a court of law, but he would be stripped of those rights when deportation officials encircle him. I cannot agree that the framers of the Constitution meant to make such an empty mockery of human freedom.

However, as I will discuss, the outcome that Justice Murphy feared is very likely the case — that the government can deport an alien for the very same speech for which the alien cannot be criminally convicted.

It is important to note that the Supreme Court has made it clear for over a century that deportation does not equate to punishment. As the Court concluded in 1893 in Fong Yue Ting v. United States:

[An] order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend.

A century later, in 1999, the Court similarly concluded in Reno v. American-Arab Anti-Discrimination Comm, that:

While the consequences of deportation may assuredly be grave, they are not imposed as a punishment. ... In many cases ... deportation is sought simply because the time of permitted residence in this country has expired, or the activity for which residence was permitted has been completed. Even when deportation is sought because of some act the alien has committed, in principle the alien is not being punished for that act (criminal charges may be available for that separate purpose) but is merely being held to the terms under which he was admitted. And in all cases, deportation is necessary in order to bring to an end an ongoing violation of United States law. [Emphasis in original.]

It is certainly true that the Supreme Court at various times has stated that aliens, or at least certain aliens, in the U.S. possess First Amendment rights. For instance, in Bridges, the Court stated that “[f]reedom of speech and of press is accorded aliens residing in this country.” And in 1953, in Kwong Hai Chew v. Colding, the Court approvingly cited Justice Murphy’s statement in his concurring opinion in Bridges that:

The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens.

However, Michael Kagan, professor of law at the William S. Boyd School of Law at the University of Nevada, Las Vegas, has cautioned that “immigrants’ freedom of speech is on insecure legal ground”, “is quite precarious constitutionally”, and that “The case law is conflicted, limited in scope, and, in some important ways, simply unclear about how far the government can go.” He elaborated that:

This situation exists because the Supreme Court through the years has sent ambivalent and conflicting signals about immigrant free speech rights. It has never quite said that immigrants do not all have freedom of speech. It has, however, never unequivocally said that they all do. Additionally, it has issued recent decisions that affirm government power to limit immigrant speech, either in the election campaign context or in terms of selective enforcement of immigration law. To a great extent, a muddled situation has developed because the executive branch has shown a certain amount of restraint in how it has used its powers, so that recent cases have not asked the Court to apply McCarthy era or early Twentieth Century case law that — while never overruled — appears anachronistic.

And Supreme Court Justice Brett Kavanaugh concluded in 2012 in his majority opinion in Bluman v. FEC (while serving as a judge on the D.C. Circuit) that:

[W]e ... know from Supreme Court case law that foreign citizens may be denied certain rights and privileges that U.S. citizens possess. ... The Court has further indicated that aliens’ First Amendment rights might be less robust than those of citizens in certain discrete areas. See Harisiades v. Shaughnessy ... (First Amendment does not protect aliens from deportation because of membership in the Communist Party).

Why did Prof. Kagan come to this conclusion?

Due Process Rights Don’t Translate into Substantive Constitutional Rights

Kagan reached this conclusion first because of his observation that while Congress’ plenary power over immigration has been circumscribed somewhat over the years, this has only been the case regarding procedural due process rights, not substantive rights such as the right to freedom of speech:

The plenary power doctrine has long allowed immigration law to exist in a parallel universe, largely insulated from the civil liberties revolution in constitutional law in the Twentieth Century. [It] has receded significantly in cases involving the procedural due process rights of immigrants inside the United States. The [Supreme] Court, however, has yet to invalidate an immigration policy or decision based on substantive constitutional rights.

Kevin Johnson, dean and professor at the University of California, Davis, School of Law, has similarly concluded that while “the Supreme Court has increasingly protected the procedural due process rights of noncitizens facing removal ... [the doctrine] continues to protect the substantive immigration judgments of Congress from judicial review”. As Johnson elaborated:

• Immigration law is most well-known among law professors for its marked departure from mainstream U.S. constitutional law. ... [T]he plenary power doctrine in effect immunizes the substantive immigration judgments of Congress about which noncitizens to admit into, and deport from, the United States. Through the application of the doctrine, courts have allowed the U.S. immigration laws to discriminate against noncitizens in ways that would be patently unconstitutional if the rights of U.S. citizens were at stake.

• Commentators long have criticized the plenary power doctrine as being out of step with the revolution in constitutional law that took place over the twentieth century. Nonetheless, despite acting at various times to avoid the doctrine’s harsh impacts, the Supreme Court to this point has failed to eliminate, or substantially limit, the doctrine.

In fact, the Supreme Court in Mandel quoted its conclusion two decades earlier in the 1954 case of Galvan v. Press for the proposition that it is “settled” precedent that:

Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. ... But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government.

The Court in Mandel stated that “We are not inclined in the present context to reconsider this line of cases.”

Election Law

Second, Kagan came to this conclusion because of his observation that “the Supreme Court's approval of [campaign finance] restrictions [on aliens] at a time when it has dismantled other campaign finance regulations as undue violations of the right to free speech shows that immigrants cannot be confident that the justices see their right to expression as falling clearly within the First Amendment.” He elaborated that:

• [E]lection laws — affirmed in the Bluman decision — ban immigrants, except for legal permanent residents, from expressive activities that would otherwise be considered core free speech.

• Congress has steadily expanded the ban on non-citizen contributions to election campaigns since the 1960s. Originally, agents of foreign governments and organizations were prohibited from donating directly to candidates for office. In 1974, during the Watergate era, Congress banned all foreign nationals, except for legal permanent residents, from donating directly to candidates. In 2002, Congress expanded th[e] ban [on non legal permanent residents] to include donations to candidates and political parties as well as independent expenditures related to an election.

• Congress — with approval from the Supreme Court — has carved out an exception for election-related speech for immigrants who are not legal permanent residents. This exception represents a sharp contrast with the Court's treatment of other campaign finance restrictions. The Supreme Court famously struck down restrictions on independent campaign expenditures by organizations in Citizens United v. FEC in 2010 ... and on aggregate campaign contribution limits in McCutcheon v. FEC, in 2014.

Kagan noted that even the “four liberal dissenters [in Citizens United] ... argued explicitly that the government should be able to selectively repress speech by non-citizens”. The dissent contended that:

[I]n a variety of contexts, [the Supreme Court has] held that speech can be regulated differentially on account of the speaker's identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees. When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems.

Justice Brett Kavanaugh himself wrote in his majority decision in Bluman that: “we find the force of [the dissent’s] statement to be a telling and accurate indicator of where the Supreme Court's jurisprudence stands on the question of foreign contributions and expenditures”.

The statute at issue in Bluman provides that:

It shall be unlawful for ... a foreign national [other than a permanent resident], directly or indirectly, to make —

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;

(B) a contribution or donation to a committee of a political party; or

(C) an expenditure, independent expenditure, or disbursement for an electioneering communication.

In 2012, in Bluman v. FEC, the Supreme Court affirmed without written decision a district court’s upholding of the ban. As Kagan wrote:

• The Supreme Court [has] affirmed a decision holding that federal election law may prohibit immigrants from making even small expenditures to speak for or against candidates in an election.

• The speech ban affirmed in Bluman goes farther than restricting donations to candidates and parties. It applies to any spending “in connection with” an election. It thus prohibits non-citizens from “making expenditures to expressly advocate the election or defeat of a political candidate; and from making donations to outside groups when those donations in turn would be used ... to finance express-advocacy expenditures.”

  The case law on this provision has focused on monetary donations, though the statute potentially extends even farther. It applies to a contribution of any “thing of value.” That phrase might be read to ban noncitizens from volunteering their time and labor in relation to election campaigns. The Federal Election Commission ... has issued two contradictory decisions on whether “uncompensated volunteer services” are permissible.

• [U]nder the law affirmed by the Supreme Court, a Mexican citizen, if not a legal permanent resident, may not spend her own money to print posters that say, “My family are not rapists. Don't vote for Trump.” In Bluman, one of the plaintiffs was banned from printing his own leaflets supporting President Obama that he wanted to distribute in Central Park in New York City.

Brett Kavanaugh’s majority decision for the district court explained that:

• Plaintiffs contend ... that foreign citizens lawfully resident in the United States have a right under the First Amendment ... to contribute to candidates and political parties and to make express-advocacy expenditures.

• [T]he statute ... bar[s] foreign nationals [other than] lawful permanent residents ... from contributing to candidates or political parties; from making expenditures to expressly advocate the election or defeat of a political candidate; and from making donations to outside groups when those donations in turn would be used to make contributions to candidates or parties or to finance express-advocacy expenditures. ... [It] does not bar foreign nationals from issue advocacy — that is, speech that does not expressly advocate the election or defeat of a specific candidate. The line between prohibited express-advocacy expenditures and permitted issue-advocacy expenditures for purposes of this statute is the line drawn by the Supreme Court in [FEC v.] Wisconsin Right to Life: An express-advocacy expenditure is one that funds “express campaign speech” or its “functional equivalent.”... An advertisement is the “functional equivalent” of express advocacy if it “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

Kavanaugh then concluded that:

The statute ... serves the compelling interest of limiting the participation of non-Americans in the activities of democratic self-government. A statute that excludes foreign nationals from political spending is therefore tailored to achieve that compelling interest. [Emphasis in original.]

...

Plaintiffs ... point out that many groups of people who are not entitled to vote may nonetheless make contributions and expenditures related to elections — for example, minors, American corporations, and citizens of states or municipalities other than the state or municipality of the elective office. But [they] are all members of the American political community. By contrast, the Supreme Court has said that “[a]liens are by definition those outside of this community.”... The compelling interest that justifies Congress in restraining foreign nationals' participation in American elections — namely, preventing foreign influence over the U.S. government — does not apply equally to minors, corporations, and citizens of other states and municipalities. It is long established that the government's legislative and regulatory prerogatives are at their apex in matters pertaining to alienage. ... It is hardly surprising, therefore, that a law that is justified as applied to aliens may not be justified as applied to citizens ... or entities made up of such citizens. Thus, the fact that those other non-voting groups of U.S. citizens are free to contribute and make expenditures does not mean that foreign nationals are similarly entitled.

But what about permanent residents? Kavanaugh wrote that:

• Plaintiffs argue that the statute, as a measure designed to limit foreign influence over American self-government, is underinclusive and not narrowly tailored because it does not prohibit contributions and expenditures by lawful permanent residents. But as Members of Congress stated when rejecting a proposal to include lawful permanent residents in [the] prohibition ... Congress may reasonably conclude that lawful permanent residents of the United States stand in a different relationship to the American political community than other foreign citizens do. Lawful permanent residents have a long-term stake in the flourishing of American society, whereas temporary resident foreign citizens by definition have only a short-term interest in the national community. ... Temporary resident foreign citizens by definition have primary loyalty to other national political communities, many of which have interests that compete with those of the United States. Apart from that, lawful permanent residents share important rights and obligations with citizens; for example, lawful permanent residents may — and do, in large numbers — serve in the United States military. In those two ways — their indefinite residence in the United States and their eligibility for military service — lawful permanent residents can be viewed as more similar to citizens than they are to temporary visitors, and thus Congress's decision to exclude them from the ban on foreign nationals' contributions and expenditures does not render the statute underinclusive. [Emphasis in original.]

• [W]e do not here decide whether Congress could constitutionally extend the current statutory ban to lawful permanent residents who have a more significant attachment to the United States than the temporary resident plaintiffs in this case. Any such extension would raise substantial questions not raised by this case.

Kagan expressed concern about the potential accord of greater electoral advocacy rights to permanent residents than to other aliens:

In effect, this means that Congress has been able to pick and choose among speakers. If Congress allows a category of people to acquire legal permanent resident status, it also allows them to express themselves more freely in elections. On the flip side, Congress can also limit speech rights by passing immigration statutes limiting legal permanent residence. ... Bluman effectively allows a statute to control the reach of the Constitution.

Selective Prosecution: Different Rules for John Lennon and for Terrorists? “Give Peace a Chance”!

Third, Kagan came to this conclusion because of his observation that “The Supreme Court has ... affirmed the power of the federal government to single out certain immigrants for deportation for political activities that would have qualified as protected speech but for their immigration status.” He expressed concern that:

Deportation can be an efficient means for the government to eliminate troublesome political opponents. It may also function as a punishment for political activity even if the law does not formally categorize it that way. The threat of deportation may act as a deterrent that silences other immigrants. ... Unfortunately, the Supreme Court has yet to fully recognize this problem.

Kagan explained that:

• In 1904, the Supreme Court in U.S. ex rel. Turner v. Williams first dealt with politically motivated deportation. ... Turner was an English citizen ... accused ... of being an anarchist. ... The federal government sought to deport him based on a statute ... that excluded “anarchists” from entry ... [though] Turner ... was already in the country. ... Turner argued that the law violated the First Amendment, and his case reached the Supreme Court. He lost.

• The following quotation from the Turner decision demonstrates how the Court flatly refused to acknowledge that deporting a man because of his political expression has any implications for freedom of speech:

  We are at a loss to understand in what way the act is obnoxious to [the First Amendment]. ... It is, of course, true that if an alien is not permitted to enter this country, or, having entered contrary to law, is expelled, he is in fact cut off from worshipping or speaking or publishing or petitioning in the country, but that is merely because of his exclusion therefrom.

Kagan exclaimed in exasperation that “According to the Court, so long as he is free to speak his mind somewhere else, there is no free speech violation[!]”

Kagan then tried to put the decision in Turner in historical context, noting that “The Court's limited conception of free speech in Turner was typical of its time. It wasn't until the 1930s that the Court began to extend more meaningful First Amendment protection to labor activists.” Yet, he was still forced to conclude that:

Yet, it is not entirely clear that the Court has evolved in the same way with regard to the connection between immigration and speech. Turner was followed by two McCarthy era cases that similarly dismissed any First Amendment protection against ideologically motivated deportations. In 1952, in Harisiades ... the Supreme Court allowed the government to retroactively apply a 1940 law that authorized deportation of longtime residents due to their former membership in the Communist Party, even if their membership ceased before the law was enacted. In 1954, in Galvan ... the Supreme Court reached a similar holding regarding the deportation of a former member of the Communist Party who ... had been a U.S. resident for thirty-six years. The Court deferred to the political branches to answer questions about who should be allowed into the country, reasoning that “[t]he power of Congress over the admission of aliens and their right to remain is necessarily very broad.” The Court allowed Galvan's deportation over the dissent of Justices Black, who complained, “I am unwilling to say [] that despite these constitutional safeguards this man may be driven from our land because he joined a political party that California and the Nation then recognized as perfectly legal.”

Kagan “imagined” that things might have been different following the government’s unsuccessful attempt to deport John Lennon:

At the time of [Mandel], it seemed that courts might react differently when the government used its immigration power to expel a political opponent who was already in the country. Around that time, the Nixon Administration initiated deportation proceedings against former Beatle John Lennon ... [who] was widely known for his anti-war activism and had been under surveillance by the Federal Bureau of Investigation ... because of his political activities. Rather than rely on an overtly ideological exclusion like the bar on Communists and anarchists, however, the government sought to have him excluded because of a 1968 British conviction for possession of cannabis resin. Lennon argued that he was the victim of selective enforcement and that the government's real reasons for targeting him were entirely political. He found a receptive audience for this argument with the Court of Appeals for the Second Circuit ... [which] stated [in Lennon v. Immigr. & Naturalization Serv.] that “[t]he courts will not condone selective deportation based upon secret political grounds.” The Second Circuit, however, avoided relying on the selective enforcement ground, holding instead that the British criminal law under which Lennon had been convicted did not constitute a conviction of marijuana possession under immigration law because the British law had no knowledge requirement in the crime.

Had the Second Circuit's dicta carried the day, the First Amendment could act as a check on politically motivated deportations from inside the United States. Instead, the selective prosecution question reached the Supreme Court in 1999 in Reno v. American-Arab Anti-Discrimination Committee [“AADC”].

As Justice Scalia explained in his majority decision in Reno:

The [INS] ... instituted deportation proceedings ... against ... [eight members of] the Popular Front for the Liberation of Palestine (PFLP) [yes, as discussed regarding Jeanne Butterfield], a group that the Government characterizes as an international terrorist and communist organization. ... [The INA] provided at the time for the deportation of aliens who “advocate ... world communism.” ... In addition, the INS charged the first six, who were only temporary residents, with routine status violations such as overstaying a visa and failure to maintain student status.

...

[T]he aliens filed suit ... challenging the constitutionality of the anticommunism provisions. ... The INS responded by dropping the advocacy-of-communism [grounds], but it retained the technical violation charges against the six temporary residents and charged [the two] permanent residents [on the ground of being] members of an organization advocating “the duty, necessity, or propriety of the unlawful assaulting or killing of any [government] officer or officers” and “the unlawful damage, injury, or destruction of property.” ... [An] INS regional counsel ... said at a press conference that the charges had been changed for tactical reasons but the INS was still seeking respondents’ deportation because of their affiliation with the PFLP. ... Respondents amended their complaint to include an allegation that the INS was selectively enforcing immigration laws against them in violation of their First and Fifth Amendment rights.

The Court concluded that “As a general matter — and assuredly in the context of claims such as those [here] — an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” It noted that “Even in the criminal-law field ... selective prosecution claim[s] ... invade a special province of the Executive — its prosecutorial discretion — [and] we have emphasized that the standard for proving them is particularly demanding.”

Justice Scalia then addressed the Court’s concern in the deportation context of not “chilling law enforcement by subjecting the prosecutor's motives and decision-making to outside inquiry”:

What will be involved in deportation cases is not merely the disclosure of normal domestic law-enforcement priorities and techniques, but often the disclosure of foreign-policy objectives and (as in this case) foreign-intelligence products and techniques. The Executive should not have to disclose its “real” reasons for deeming nationals of a particular country a special threat — or indeed for simply wishing to antagonize a particular foreign country by focusing on that country's nationals — and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy. Moreover, the consideration on the other side of the ledger in deportation cases — the interest of the target in avoiding “selective” treatment — is less compelling than in criminal prosecutions. ... The contention that a violation must be allowed to continue because it has been improperly selected is not powerfully appealing.

The Court ruled that “When an alien's continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity.” It did note that “we need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome. Whether or not there be such exceptions, the general rule certainly applies here.”

Jeanne Butterfield was not pleased with the decision. She wrote in reaction that: “In a decision reminiscent of the Japanese [WWII] internment cases decades ago, the Court sent a chilling message to immigrant communities across the United States. ... What the decision boils down to is one simple, clear message: immigrants have no First Amendment rights.”

Kagan also expressed concern:

• AADC appears to raise the specter that immigrants could be driven to silence for fear of deportation. The majority in the decision noted that selective prosecution defenses rarely prevail in the criminal context because there is a presumption that prosecutors act lawfully. The Court, however, refused to allow non-citizens to even attempt to surmount that challenge because executive discretion in immigration enforcement is especially broad.

• A broad, straightforward reading of AADC leads to a number of disturbing outcomes. Because it provides a sword that the government may wield over millions of people, the threat of deportation has the potential to silence an entire class based on who they are. ... Could the government selectively take action against immigrants based on religion to deport as many Muslims on technical immigration violations as possible? If there is no First Amendment selective prosecution defense, then the answer seems to be yes.

• It is ... difficult to square th[e Supreme Court’s] logic with other First Amendment cases in which the Court has found free speech violations in non-criminal contexts with fairly minimal sanctions.

He then observed that:

• Two years after AADC [in Zadvydas v. Davis], the Supreme Court held that immigration enforcement “is subject to important constitutional limitations.” The Court has not made clear whether the First Amendment is one of those limitations, though AADC suggests that it is not.

• It is ... not convincing to explain the result of AADC by reference to either the noncriminal nature of immigration enforcement or the relative severity of the consequences. It seems that the Court was simply reluctant to fully extend free speech protections into the realm of immigration enforcement.

Kagan expressed some optimism that selective prosecutions claims not involving terrorism might fare differently in court:

[I]t is probably relevant that the non-citizens in AADC were uniquely unsympathetic, and the government's arguments for discretion were uniquely compelling. ... [T]he Court noted that there could be sensitive foreign policy and intelligence concerns in a deportation decision. The respondents’ suspected membership in a potential terror group operating in the context of the Israeli-Palestinian conflict seemingly makes these concerns especially strong. The Court explains its holding [that “the Government does not offend the Constitution by deporting [an alien] for the additional reason that it believes him to be a member of an organization that supports terrorist activity”] in terms that are tied closely to this somewhat unusual factual context.

Chief Justice Roberts had written in Holder that:

• [All parties] agree[] that the Government's interest in combating terrorism is an urgent objective of the highest order.

• The Preamble to the Constitution proclaims that the people of the United States ordained and established that charter of government in part to “provide for the common defence.” As Madison explained, “[s]ecurity against foreign danger is ... an avowed and essential object of the American Union.”

In any event, Kagan speculated that:

The Court ... warn[ed] that it might rule differently in a future case in which the government action was more outrageous. This might be the case if an immigrant were subject to deportation because of political activities more focused on domestic American concerns where foreign policy interests appeared less compelling and where there is no plausible connection with violence. In this way, the Second Circuit's dicta regarding selective prosecution of John Lennon might still hold up, in the sense that a legendary popular musician might have made a more compelling champion of immigrant speech rights than members of a Palestinian militant group.

Kagan also expressed some optimism because “the government avoided testing the rule that had prevailed half a century earlier in Harisiades and Galvan. Despite ruling against the immigrants' free speech claims, the Court in AADC never cited Harisiades, Galvan, or Turner — although the Court did not directly repudiate them.” He speculated that:

• This is often the manner in which immigration law doctrine evolves, without a blockbuster case overruling precedent. ... There is indeed good reason to doubt the doctrinal foundations of the earlier cases. In 1952, the Court thought that membership in “an organization advocating overthrow of government by force” was not protected free speech. Thus, the immigration cases involving membership in the anarchist or Communist movements were not unusual for their eras, even if the speakers were not immigrants. In Brandenburg ... the Court found that advocacy of political violence can indeed be protected by the First Amendment.

• [T]he Court may be simultaneously reluctant to get involved while gently warning the government to tread carefully so as not to force the judicial hand. ... [T]he INS dropp[ed] the world communism ground of deportation so that the courts would not be asked to directly rule on an explicitly ideological ground of deportation.

Kagan may be grasping at straws. Remember that Justice Kavanaugh approvingly cited Harisiades for the propositions that “foreign citizens may be denied certain rights and privileges that U.S. citizens possess” and that “aliens’ First Amendment rights might be less robust than those of citizens in certain discrete areas”.

Conclusion

It appears very likely, though of course not certain, that the Supreme Court would, for the reasons put forth by Kagan, uphold the constitutionality of the removal of an alien present in the United States on the “endorse or espouse” ground of inadmissibility (for an alien who had entered illegally and thus never been admitted) and on the similar ground of deportability (for an alien who had been admitted (including one who has since lost legal status (such as by overstaying a temporary visa)). Not, of course, that Kagan would necessarily welcome such an outcome.

The likelihood is highest in the case of an illegal alien (per the majority opinion in AADC) and lowest in the case of a permanent resident (per Justice Kavanaugh’s majority decision in Bluman before he joined the Supreme Court). The likelihood is relatively high regarding the deportation of foreign students on temporary visas (who, per Justice Kavanaugh, “have primary loyalty to other national political communities, many of which have interests that compete with those of the United States”).

Biden’s DHS should at least attempt to remove those aliens who have “endorsed or espoused terrorist activity”, at least those who are not permanent residents who have not actually called for genocide. At the top of the priority list should be those foreign students who have endorsed or espoused the genocidal views of SJP chapters justifying the slaughter of every Jewish man, woman, and child living in Israel as “settlers” and “loungers” who are fair game for death in pursuit of the “liberation” of Palestine “from the river to the sea” through “confrontation by any means necessary”.

End Note

¹ The “Joint Statement by Harvard Palestine Solidarity Groups on the Situation in Palestine” stated in part that the groups “h[e]ld the Israeli regime entirely responsible for all unfolding violence ... . The apartheid regime is the only one to blame.”