Defending Its Speech-Based Deportation Policy, the Trump Administration Says 'No Such Policy Exists'
The government's gaslighting strategy suggests that federal officials are not confident about the constitutionality of punishing students for expressing anti-Israel views.
During a federal trial in Boston that concluded on Monday, two academic groups, the American Association of University Professors and the Middle East Studies Association, argued that the Trump administration's policy of deporting international students for expressing anti-Israel views is inconsistent with the First Amendment. The plaintiffs asked U.S. District Judge William Young for a preliminary injunction barring the Trump administration from enforcing its "ideological deportation policy." The government's lawyers responded by denying that any such policy exists.
William Kanellis, a Justice Department trial lawyer, likened the plaintiffs in AAUP v. Rubio to Don Quixote, jousting at windmills they mistake for giants. Their case, he said, is based on nothing more than "imagination and creative conjuring." John Armstrong, who runs the State Department's Bureau of Consular Affairs, echoed that assessment when he took the stand, saying, "It's silly to suggest that there's such a policy."
That position is pretty audacious in light of the many times that President Donald Trump and his underlings have bragged about seeking to expel students whose pro-Palestinian advocacy they view as antisemitic or pro-Hamas. The government's gaslighting strategy suggests those officials, despite insisting that this supposedly imaginary initiative has nothing to do with freedom of speech, are not confident that federal courts will agree.
"In public, Defendants have described their policy, defended it, and taken political credit for it," the plaintiffs note in their pretrial brief. "It is only now that the policy has been challenged that they say, incredibly, that the policy does not actually exist."
Federal officials "have described the policy at length in official statements made to the public," the brief adds. "They have implemented the policy in a variety of ways, including: by issuing formal guidance relating to the revocation of visas and green cards; by establishing processes for identifying those engaged in pro-Palestinian advocacy; and by establishing processes for then revoking the visas or green cards of their targets. Defendants have also enforced the policy against potentially hundreds of noncitizen students and faculty, including most prominently Mahmoud Khalil, Rümeysa Öztürk, Mohsen Mahdawi, Yunseo Chung, and Badar Khan Suri."
Despite all of that, the Trump administration argues that the plaintiffs have brought "a First Amendment challenge to a 'policy' of their own creation." They "do not try to locate this program in any statute, regulation, rule, or directive," the government complains. "They do not allege that it is written down anywhere. And they do not even try to identify its specific terms and substance. That is all unsurprising, because no such policy exists."
That probably would be news to Trump, who during his 2024 campaign promised a crackdown that would make foreign students think twice about participating in anti-Israel protests. "One thing I do is, any student that protests, I throw them out of the country," he told donors in May 2024. "You know, there are a lot of foreign students. As soon as they hear that, they're going to behave."
Khalil, a legal permanent resident who had played a conspicuous role in protests at Columbia University, was Trump's first target. After Khalil was arrested in Manhattan on March 8, Trump described him as "a Radical Foreign Pro-Hamas Student" and promised "this is the first arrest of many to come." There are "more students" at "Universities Across the Country" who "have engaged in pro-terrorist, anti-Semitic, anti-American activity, and the Trump Administration will not tolerate it," he said. "We will find, apprehend, and deport these terrorist sympathizers from the country."
Khalil's arrest was based on 8 USC 1227, which authorizes the removal of noncitizens when the secretary of state "has reasonable ground to believe" their "presence or activities" in this country "would have potentially serious adverse foreign policy consequences for the United States." In a two-page memo invoking Section 1227, Secretary of State Marco Rubio claimed Khalil had participated in "antisemitic protests" that "foster[ed] a hostile environment for Jewish students." Those activities, Rubio averred, "undermine U.S. policy to combat anti-Semitism around the world and in the United States" as well as "efforts to protect Jewish students from harassment and violence in the United States."
Rubio added that "condoning anti-Semitic conduct and disruptive protests in the United States would severely undermine" a "significant foreign policy objective." He nebulously described that objective as "champion[ing] core American interests and American citizens." Rubio did not cite any evidence that Khalil had promoted antisemitism—a charge that Khalil vehemently denies. Nor did Rubio accuse Khalil of breaking the law. In fact, the memo acknowledged that the case against Khalil was based on "past, current, or expected beliefs, statements, or associations that are otherwise lawful."
After Khalil's arrest, Rubio said it reflected a broader policy: "We will be revoking the visas and/or green cards of Hamas supporters in America so they can be deported." The Department of Homeland Security (DHS) likewise claimed Khalil had "led activities aligned to Hamas," explaining that Immigration and Customs Enforcement (ICE) had arrested him "in support of President Trump's executive orders prohibiting anti-Semitism, and in coordination with the Department of State."
In a March 13 interview with NPR, Deputy Secretary of Homeland Security Troy Edgar was asked to back up the government's allegation that Khalil supported Hamas. "Well, I think you can see it on TV, right?" Edgar replied. "This is somebody that we've invited and allowed the student to come into the country, and he's put himself in the middle of the process of basically pro-Palestinian activity." As Reason's Robby Soave noted, "Edgar did not even bother to draw a distinction between pro-Hamas activism and pro-Palestinian activism."
As the government's lawyers told it during the trial in Boston, neither Khalil's arrest nor the ones that followed broke new ground: The Trump administration was simply enforcing a longstanding law. But Michael Farbiarz, the federal judge in New Jersey who last month ordered Khalil's release while his immigration case is pending, delved into the legislative background and enforcement history of Section 1227. He concluded that neither was consistent with Rubio's invocation of the law against Khalil. "A Section 1227 removal of the kind at issue here," he said, "is unprecedented—not within the realm of conduct that the statute normally covers, of which an ordinary person would have notice."
Rubio confirmed that Khalil's arrest would be the first of "many to come." In late March, he told reporters he had revoked the visas of about 300 students. "We do it every day," he said. "Every time I find one of these lunatics, I take away their visa. At some point, I hope we run out because we've gotten rid of all of them, but we're looking every day for these lunatics that are tearing things up."
Despite Rubio's implication that all of the the targets had engaged in disruptive protests, he conflated students who "start a riot," "take over a library," or "harass people" with students who merely express opinions that offend him. The sole basis for arresting Ozturk, for example, seemed to be an op-ed piece that she and two co-authors had published in Tufts University's student newspaper. That essay was severely critical of Israeli policy and expressed sympathy for the Boycott, Divestment, and Sanctions movement. But on its face, it was neither "pro-terrorist" nor "anti-Semitic." In any case, it clearly was speech protected by the First Amendment.
An executive order that Trump issued on January 20 likewise blurs the line between constitutionally protected speech and criminal conduct. "It is the policy of the
United States," Trump says, "to protect its citizens from aliens who intend to commit terrorist attacks, threaten our national security, espouse hateful ideology, or otherwise exploit the immigration laws for malevolent purposes." While terrorism is unambiguously criminal, the three other categories are broad and subjective enough to accommodate the "ideological deportation policy" exemplified by the arrests of people like Khalil and Ozturk.
Nine days later, Trump issued an executive order announcing "additional measures to combat anti-Semitism." That order mentions "unlawful anti-Semitic harassment and violence," but it also directs every federal agency to identify "all civil and criminal authorities or actions within the jurisdiction of that agency" that might be used "to curb or combat anti-Semitism"—a broad and contentious category that includes constitutionally protected speech. Notably, the order incorporates a definition of antisemitism that can include criticism of Israel, depending on how it is phrased and how selectively it is applied.
Contrary to what the Trump administration is now claiming, these are all statements of policy, and that policy has been implemented. "DHS is investigating noncitizen students and faculty who are believed to have engaged in pro-Palestinian advocacy," the plaintiffs note. "DHS is coordinating with the State Department to revoke the visas and green cards of, and to arrest and detain, students and faculty engaged in lawful pro-Palestinian advocacy….The State Department has issued formal guidance to facilitate the revocation of students' and faculty members' visas based on speech or activity deemed 'pro-Hamas,' 'pro-terrorist,' or 'antisemitic.'"
During the trial, Kanellis said the government had investigated about 5,000 pro-Palestinian protesters. An ICE official testified that investigators identified about 200 who might have violated U.S. law. But the upshot so far, Kanellis said, is just 18 arrests. If the Trump administration actually had a policy of targeting foreign students based on their political views, he said, "you'd see many more arrests."
As the plaintiffs emphasize, however, the impact of this initiative goes far beyond the people who are actually arrested. Students and faculty members who understand that their political advocacy might result in a federal investigation that could lead to deportation are apt to watch what they say, which is precisely the result that Trump and Rubio are trying to accomplish.
As Farbiarz put it, someone who "wishes to steer clear of the possibility of being removed from the United States under Section 1227" will be inclined to "go quiet" unless he is confident that he can predict exactly what sort of speech might trigger that outcome. "The goal is to chill speech" by "intimidating and scaring students and scholars," Alexandra Conlan, one of the plaintiffs' lawyers, said during the Boston trial. "The goal is to silence students and scholars who wish to express pro-Palestinian views." And that sort of chilling effect, she added, is "exactly what the First Amendment was meant to prevent."
