Is it Constitutional To Deport Immigrants for Political Speech?
President Donald Trump has begun kicking immigrant “Hamas sympathizers” out of the U.S.
Immigrant students who express sympathy for Hamas will have their visas and green cards revoked so that deportation proceedings may be brought against them, Secretary of State Marco Rubio posted to X on Monday. The State Department, which began carrying out the "catch and revoke" program last week, will use artificial intelligence to sift through foreign nationals' social media accounts for pro-Hamas sympathies. Rubio said the U.S. has "zero tolerance for foreign visitors who support terrorists" and vowed to deport "violators of U.S. law." While the constitutionality of the program is dubious, it is unambiguously un-American to punish people for political speech.
The initiative follows two executive orders signed by President Donald Trump. The first, enacted on January 20, states that the policy of the U.S. is to "protect its citizens from aliens who intend to commit terrorist attacks, threaten our national security, and espouse hateful ideology." The second, signed on January 29, mandates the U.S. crackdown on anti-Semitism by "prosecut[ing], remov[ing], or otherwise hold[ing] to account the perpetrators of unlawful anti-Semitic harassment and violence." The order directs the secretaries of State, Education, and Homeland Security to conduct investigations and remove aliens who endorse designated foreign terrorist organizations.
In the second order's fact sheet, Trump explicitly states that he intends to "deport Hamas Sympathizers [and] quickly cancel the student visas of all Hamas sympathizers on college campuses." "Hamas sympathizers" is left undefined, but Jenin Younes, a civil liberties attorney, tells Reason that the term is clearly "used to apply to students who simply support Palestinian rights or who think Palestinians have some right of resistance against occupation." Younes says, "The government has always had the ability to prosecute people who break laws, including providing material support for terrorism….What is happening now is clearly an attempt to punish people for having and expressing the wrong ideas."
Eugene Volokh, professor of law emeritus at the University of California, Los Angeles, explains that the Immigration and Nationality Act of 1952 provides for the denial of entry and deportation of "any alien who…endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization." Nadine Strossen, former president of the American Civil Liberties Union and senior fellow at the Foundation for Individual Rights and Expression, tells Reason that Trump's executive order "clearly is based on federal statutory authority, so one cannot make the argument that the president is exceeding his constitutional powers."
Still, the question remains whether the statute itself and the executive order enforcing it are constitutional. Strossen explains that "non-citizens with any immigration status at all, including unauthorized immigrants, have the same First Amendment rights that U.S. citizens have…insofar as they have the same protection against criminal penalties, criminal investigations, or civil law enforcement." However, it's unclear "whether non-citizens have the same First Amendment rights as citizens with respect to the deportation process."
Strossen points to decades of legal precedent and case law to describe the complexity surrounding the constitutionality of the "catch and revoke" policy. In support of immigrants' First Amendment rights is Justice Frank Murphy's concurring opinion in the 1945 case, Bridges v. Wixon: "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." However, the Supreme Court ruled in 1952 that legal aliens could be deported for membership in the Communist Party without violating the First Amendment in Harisiades v. Shaughnessy. The decision was made at a time when "the First Amendment didn't protect the right of American citizens to espouse terrorism" and when people "were prosecuted and convicted for teaching Marxist classes," says Strossen.
Constitutionality aside, Strossen opposes Trump's policy "on [the] pragmatic basis [that] you don't change an attitude by criminalizing its expression."
David Bier, director of immigration studies at the Cato Institute, tells Reason that "legal permanent residents are in a much stronger position than someone with a nonimmigrant visa." Mahmoud Khalil, a Palestinian graduate student whom a Department of Homeland Security spokesperson vaguely alleges "led activities aligned to Hamas," now faces deportation despite holding a green card, not just a student visa. Trump said, "this is the first arrest of many to come."
