When "Good" Laws are Given to Bad People

I'm about to "defend" the statute that's being used to remove Mahmoud Khalil from the United States. But I have to begin by saying as forcefully as I can that I don't believe for a moment that the Trump administration is using the statute in good faith. Yet I also don't believe that any judge, even one who deep down might share that view, would actually hold that the use was in bad faith (much less that two court of appeals judges would, much less that five Supreme Court justices would). So, as a matter of legal analysis, we're stuck with trying to see whether or how the statute might be found not to apply in the present circumstances, either as a matter of statutory interpretation or constitutional law.

You have to piece together two provisions to get the full picture. The first states that noncitizens, including permanent resident aliens, can be removed (the current term for "deported") when the secretary of state has “reasonable grounds to believe” that the noncitizen’s continued presence or actions in the United States would have “potentially serious adverse foreign policy consequences.” The second provides that the foreign policy provision can't be invoked "because of the alien's past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien's admission would compromise a compelling United States foreign policy interest." 

Here's a scenario where these provisions make sense. Jair Bolsonaro fomented a failed coup in Brazil. He then came to the United States lawfully, that is, with some sort of visa. Suppose that while he was in the United States he continued to urge his supporters in Brazil to plan for some future antigovernment activities, including a possible coup. Assume that this counts as "mere advocacy" and not "incitement to imminent unlawful conduct" under US free speech law. The Brazilian government lets the United States know that it regards Bolsonaro's presence in the United States as a demonstration of US hostility to it. The Secretary of State concludes that Bolsonaro's statements are complicating US negotiations with Brazil over some important military or trade arrangements. (Remember, this is a hypothetical!). The Secretary finds (referring to the Brazilian government's objections) that Bolsonaro's continued presence has "potentially serious adverse foreign policy consequences," one of which is the negotiation difficulties, which "compromise a compelling ... foreign policy interest." (You can fill in other figures for Bolsonaro; older readers might say "the Shah of Iran" or "Martin Bormann" [though there's a separate provision dealing with Nazis].)

It seems to me clear that allowing Bolsonaro's removal under these circumstances might well be good policy and raises no substantial constitutional questions. Khalil is obviously different from Bolsonaro--an obscure graduate student rather than the former president of another nation. But it's not clear to me that the statute should be read to exclude Khalil from its coverage--and that notwithstanding the fact that the legislative history indicates that the provision should be applied sparingly (or that it originated in the notorious McCarren-Walter Act).

Take the "one obscure person" versus "former president" distinction. Foreign policy problems take lots of forms. Some can be created by a single person, but others can be created when a bunch of people--acting in concert or independently--do things that cause such problems. So, it seems to me, the statutory question is whether the Secretary of State has "reasonable grounds to believe" that Khalil's statements, taken together with those of others (both US citizens and noncitizens) compromises the (assertedly) "compelling" foreign policy interest in combating anti-Semitism. With questions of good faith put to the side (for reasons I've mentioned), it seems to me highly unlikely that the federal courts would (ultimately) conclude that the Secretary's decision was unreasonable.

Some, including apparently President Trump's sister when she was a federal judge have said that the statute was unconstitutionally vague because it fails to give those subject to potential removal fair notice of what activities will trigger their removal. That, though, seems to me the result of the fact that compelling foreign policy interests can cover a wide range and indeed can change from time to time. So, for example, gaining access to some rare mineral might be a compelling foreign policy interest today but not five years from now. Or, more pertinently, combating anti-Semitism might be a compelling foreign policy interest today but not when the person subject to removal received his or her visa (or green card). So, it seems to me, it would be difficult to write a statute that dealt with the problem to which this one is addressed in any more specific terms. The statute's as clear as the subject matter permits.

At least insofar as I've been able to follow the discussions that leaves the First Amendment. The relevant doctrine is that of unconstitutional conditions, and I confess at the outset that I don't have a firm grasp on what that doctrine actually is (nor, I think, does anyone else). The doctrine is triggered when a person seeks something that the government has discretion to grant or withhold. The government says that it will give you that thing only if you either say things the government likes or refrain from saying things the government dislikes. The idea behind the doctrine is something like this: The government can't leverage the discretionary power it has over the thing you want to get you to do something else. And, to the extent there's an explanation for that principle, it seems to be that the government can define the scope of its discretionary program, so it can indeed leverage its power to get you to do things consistent with the program's goals, but it can't get you to do things outside the program's scope.

Of course everything turns here on what the scope of the program is. For admission to the United States, it would seem to be something like: letting people in whose presence in the United States, whether temporarily or permanently, is consistent with the government's foreign policy goals. (I should note that scholarship on the unconstitutional conditions doctrine sometimes suggests some limitations other than "leverage on things outside the program's scope," but they are, in my view, even less likely to find judicial support in Khalil's case.)

And, if that's the scope of the program, I'd bet that the courts would hold that the "leveraging" effects of discretionary denial is within the program's scope. So, in the end, at least as a predictive matter I'd bet that Khalil's likely to lose his statutory and constitutional challenges (though he might have some interim victories, which might not be trivial in terms of their effects on generating general opposition to Trump's policies; in particular, I look forward to the effort to depose Marco Rubio to find out what exactly he "personally" knew about Khalil when he signed the document directing Khalil's removal).

In our podcast Mike Seidman and I have been going back and forth on the question of whether it's politically helpful to challenge Trump administration policies on constitutional grounds (I think probably a bit sometimes, he thinks probably not). The Khalil case poses a different and in some ways more troubling problem. His removal is an obvious injustice but, I've strongly suggested above, the injustice is in some sense perfectly legal. (I'm reminded here of the last line of Grant Gilmore's Ages of American Law: "In hell there will be nothing but law, and due process will be meticulously observed.") 

What to do? Well, maybe get a bunch of judges willing to look realistically at the good faith of government officials. I won't hold my breath. Or listen to Thomas Jefferson (and hold your breath): "[O]ur present situation is not a natural one.... A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to it’s true principles." In short, don't elect witches.