Case of Anti-Israel Green Card Holder Seized by ICE Could Be a Close Call for Even the Highest of Courts

Hundreds of thousands of students and others have signed petitions claiming that Mahmoud Khalil’s arrest violates his rights of free speech.

The Trump administration has arrested and decided to deport Mahmoud Khalil, a green card holder, married to an American citizen who is eight months pregnant. His arrest raises important questions relating to the status of permanent residents who have green cards.

The law explicitly authorizes their deportation on a number of specified grounds, including conviction for crimes of moral turpitude, as well as for somewhat vaguer “national security” grounds.

Hundreds of thousands of students and others have signed petitions claiming that Mr. Khalil’s arrest violates his rights of free speech. The evidence, though, seems to suggest that he went beyond merely expressing anti-Israel views.

He almost certainly trespassed and may have participated in actions that blocked access by Jewish students to classes. Yet he has not been convicted of any crimes of moral turpitude.

As a matter of pure constitutional law, the president would have the right to deport anyone whose presence in America was not in the national interest, but statutes would seem to limit that broad authority.

Ultimately, the courts will have to decide whether the scope of presidential power has been constrained by the enactment of congressional legislation.

Meantime, Mr. Khalil has been whisked off to Louisiana, where he is being detained pending the resolution of the deportation demand.

The reason he was moved a thousand miles away from his home probably has more to do with judge shopping than with safety concerns. He is less likely to find a sympathetic judge in Louisiana than he might be in New York or the District of Columbia.

Regardless of where the case is initially brought, it may ultimately end up in the Supreme Court, testing the issue of executive authority. Much will depend on the evidence produced by the government in support of deportation.

Unless the government can prove by a standard lower than proof beyond a reasonable doubt, that he meets the criteria for deportation, it may well lose. The decision whether to try him for crimes of moral turpitude also depends on the evidence.

It depends, too, on the decisions by New York and federal prosecutors whether to bring the criminal case. Such a case could only be brought in New York where his alleged crimes may have occurred.

So this is not a slam dunk for the government. Nor should it be. A delicate balance must be struck between the free speech rights of even the most obnoxious, anti-American, antisemitic and anti-free speech zealots and the rights of those who he may have victimized by his repressive actions.

The vast majority of Americans would almost certainly want to see Mr. Khalil deported, but when it comes to free speech, the majority does not rule — the First Amendment does.

So, depending on the evidence, this may prove to be an important First Amendment case challenging the power of the executive in the context of deportation.

In resolving this conflict, the courts should consider two related First Amendment rights: The right of the non-American citizen to express controversial views and the right of American citizens to hear such views.

It is certainly possible that the need to resolve these conflicting rights may be mooted by the evidence. If the government is able to prove that his actions went beyond First Amendment protected speech, the courts may well resolve the issue in favor of the government.

The presumption of innocence operates in criminal cases as a matter of law. It may also have applicability in civil cases as a matter of policy.

In the end, no one should have sympathy for Mr. Khalil as an individual, as an advocate, or as an ideologue. His views, as he himself has expressed them, are despicable, anti-American, antisemitic, and intolerant of others.

Yet the First Amendment knows no such things as a false or despicable idea. All ideas are created equal as a matter of constitutional law, though they are far from equal as a matter of morality.