The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What the Honorable Maryann Trump Barry Said about the Ability of the Secretary of State to Order the Deportation of Individuals Lawfully Present in the U.S.
It turns out the President's sister concluded the law being used to deport Mahmoud Khalil is unconstitutional.
Adam Liptak reports that the law the Trump Administration is citing to deport Mahmoud Khalil was declared unconstitutional by President Trump's sister when she was a trial court judge. Liptak's story begins:
The 1952 law under which the Trump administration seeks to deport Mahmoud Khalil, a lawful permanent resident who helped organize protests at Columbia University, is largely untested.
Largely, but not entirely. It was ruled unconstitutional in 1996 — by President Trump's sister. . . .
At the time, Judge Barry was a federal trial judge, and so her ruling did not establish a precedent binding on other courts. In any event, an appeals court later reversed her decision, though on grounds unrelated to its substance.
But it remains the most thorough judicial examination of the constitutionality of the law, and other judges may find its reasoning persuasive.
The case was Massieu v. Reno, and here is how Judge Barry's opinion began:
Plaintiff, Mario Ruiz Massieu, seeks a permanent injunction enjoining the deportation proceeding instituted against him pursuant to 8 U.S.C. § 1251(a)(4)(C)(i) and a declaration that the statute, which has not previously been construed in any reported judicial opinion, is unconstitutional. That statute, by its express terms, confers upon a single individual, the Secretary of State, the unfettered and unreviewable discretion to deport any alien lawfully within the United States, not for identified reasons relating to his or conduct in the United States or elsewhere but, rather, because that person's mere presence here would impact in some unexplained way on the foreign policy interests of the United States. Thus, the statute represents a breathtaking departure both from well established legislative precedent which commands deportation based on adjudications of defined impermissible conduct by the alien in the United States, and from well established precedent with respect to extradition which commands extradition based on adjudications of probable cause to believe that the alien has engaged in defined impermissible conduct elsewhere.
Make no mistake about it. This case is about the Constitution of the United States and the panoply of protections that document provides to the citizens of this country and those non-citizens who are here legally and, thus, here as our guests. And make no mistake about this: Mr. Ruiz Massieu entered this country legally and is not alleged to have committed any act within this country which requires his deportation. Nor, on the state of this record, can it be said that there exists probable cause to believe that Mr. Ruiz Massieu has committed any act outside of this country which warrants his extradition, for the government has failed in four separate proceedings before two Magistrate Judges to establish probable cause. Deportation of Mr. Ruiz Massieu is sought merely because he is here and the Secretary of State and Mexico have decided that he should go back.
The issue before the court is not whether plaintiff has the right to remain in this country beyond the period for which he was lawfully admitted; indeed, as a "non-immigrant visitor" he had only a limited right to remain here but the right to then go on his way to wherever he wished to go. The issue, rather, is whether an alien who is in this country legally can, merely because he is here, have his liberty restrained and be forcibly removed to a specific country in the unfettered discretion of the Secretary of State and without any meaningful opportunity to be heard. The answer is a ringing "no".
