Trump's historic test of immigrants' speech rights
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Illustration: Aïda Amer/Axios
The Trump administration's moves to deport Columbia University protest leader Mahmoud Khalil have set up a historic court battle over whether the U.S. government can remove legal residents as national security risks for what they say.
Why it matters: If Trump's team is successful, legal analysts say, future administrations could deport legal immigrants for any political or religious speech the administration dislikes.
- In a nation with a long history of immigration, the impact could be huge, and go well beyond President Trump's tenure.
- Think of the possibilities: If Trump's push is successful, a Democrat-led administration that follows could, theoretically, cite national security concerns to remove green-card holders such as right-leaning Chinese immigrants or someone like the outspoken Elon Musk, who had a green card before he became a U.S. citizen in 2022.
Zoom in: Both sides of the Khalil case think it could wind up before the Supreme Court, where the Trump administration is eager to win approval for various deportation strategies.
- A win in court could give the Trump administration — specifically Secretary of State Marco Rubio — a chance to launch deportations based on speech activities of the 13 million or so green card holders in the U.S.
Catch up quick: Khalil, a Columbia graduate and legal resident from Syria, helped lead last year's protests over the war in Gaza. The protests disrupted campus activities and led to allegations of antisemitic harassment of some Jewish students.
- As part of Trump's sweeping immigration crackdown, Immigration and Customs Enforcement (ICE) agents arrested Khalil earlier this month.
- The Department of Homeland Security says it's gathered evidence that he was actively supporting Hamas, but not materially helping the terror group, a White House official said.
- Rubio was presented with evidence from the DHS review and determined that Khalil acted against U.S. foreign policy positions, the official said.
- Khalil has not been charged or accused of any crimes. As of Friday, he was being held in an ICE detention facility in Louisiana. His legal team is challenging his detention.
The big picture: Green card holders, known as lawful U.S. permanent residents, have the most coveted status of foreign nationals who aspire to be U.S. citizens.
- A green card provides most of the rights of U.S. citizenship — except the right to run for public office and the right to vote. There's also the risk of deportation if the card holder commits a crime.
For non-U.S. citizens, there's additional risk in protesting because their speech rights are open to interpretation by the government. That's the legal gap the Trump administration is seeking to exploit.
- U.S. law allows the secretary of state to deport a green-card holder if that person is deemed to have "potentially serious adverse foreign policy consequences for the United States."
- That authority rarely has been used outside of the Cold War or cases involving serious crimes, legal analysts tell Axios.
- That provision comes from the Cold War-era Immigration Nationality Act of 1952 — a point Rubio made as a senator eight days after Hamas' Oct. 7, 2023, attack on Israel.
There are limits on the secretary of state's authority, said Rebecca Ingber, a Cardozo Law School professor and former legal adviser for the State Department during the Biden administration.
- Ingber said the provision of the law the administration is using in its deportation argument doesn't operate in a vacuum — and that there are competing legal constraints such as "due process and the First Amendment."
Emily Berman, a constitutional scholar and assistant dean at the University of Houston Law Center, told Axios that secretaries of state haven't tried to remove legal residents based on their speech "because it's unconstitutional."
- "If the only thing this person did is engage in protests that happen to be pro-Palestinian, which is speech that the government doesn't like ... they can't punish him for that," Berman said.
Khalil's legal team believes the Trump administration is using him as an example for a larger goal.
- The administration "has selectively targeted Mr. Khalil, a student, husband, and father-to-be who has not been accused of a single crime, to send a message of just how far they will go to crack down on dissent," said Donna Lieberman, executive director of the New York Civil Liberties Union.
The other side: Trump administration officials have said it's within the secretary of state's right to expel Khalil for speech they claim supported terrorism.
- Khalil's arrest came days after Rubio posted on X that the U.S. had "zero tolerance for foreign visitors who support terrorists."
- Trump border czar Tom Homan said last week that "free speech has limitations."
