With one quasi-win at the Supreme Court and one still evolving at a lower immigration court, it is safe to call it a soft 2–0 for President Donald Trump on immigration matters. The courts did not significantly curtail Trump’s power as desired by the left, but also did not allow the creation of a constitutional black hole in El Salvador that would have greatly increased his power. Of course, there are still big questions to be addressed as appeals play out.
An immigration judge recently ruled the Trump administration can deport Columbia University graduate student Mahmoud Khalil, a decision that comes a month after his arrest marked the start of the federal government’s crackdown on foreign students. The U.S. revoked Khalil’s green card under a little-used part of immigration law: The United States can take away green cards from legal permanent residents, as well as student visas, simply if “the Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.”
No due process is directly provided by the law per se, though in the instant case Khalil’s lawyers filed a habeas corpus motion to stay his deportation; hence the recent trial before an immigration judge in Louisiana. Rubio accused Khalil of participating in protests he described as antisemitic and supportive of Hamas. Foreigners who come to the United States and do such things, he stated, will have their visas or green cards revoked and be kicked out.
“This is not about free speech,” Rubio said. “This is about people that don’t have a right to be in the United States to begin with. No one has a right to a student visa. No one has a right to a green card.” Rubio has teed up some 300 foreign students to have their visas revoked.
Though Khalil has at least two appeals pending (one in front of the Board of Immigration Appeals and one in New Jersey, where he was first detained) the lower immigration court just sent a powerful signal to the Trump administration if you consider Khalil’s case a kind of “proof of concept” for the use of the Secretary of State’s unilateral power to revoke green cards and visas. The court did not challenge this, and in fact affirmed the Trump administration’s argument that Khalil’s beliefs threaten national security and justify his deportation, in line with precedent. The court also ignored any larger First Amendment issues in its decision. The win though could be weakened overall by helping establish a right to habeas corpus for future cases (see the discussion of the Garcia case below). You can expect the government to move quickly now to deport the remaining students whose visas have already been revoked.
The Supreme Court ruled on a companion case, creating another (though more arguable) “win” for Trump. The court ordered the Trump administration to “facilitate” the return to the United States of Kilmar Armando Abrego Garcia, an illegal alien who was deported to El Salvador due to an “administrative error” and remains locked up there. The court wrote, “The order properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”
Abrego Garcia, a Salvadoran citizen, entered the U.S. illegally 15 years ago and claimed asylum. A federal judge in 2019 gave him protection from being deported because of concerns for his safety if he were to return to El Salvador. Gracia had been accused of being a member of MS-13, a charge later dropped. He was granted a withholding of removal by the court and married an American citizen. Then, just recently, Garcia was deported on a flight with men alleged by the Trump administration to be members of the Venezuelan gang Tren de Aragua.
Though Garcia seems ultimately albeit slowly to be on the way back to the United States, the court’s decision may still be seen as a win for Trump. As in the Khalil case, the court left untouched the larger question of whether the Trump administration’s use of the two-centuries-old Alien Enemies Act was legal. That opens the door to future uses of the Act to speedily deport illegal aliens. The “loss” part of the decision is that the Court did allow that Garcia was entitled to some due process. The act on its face provides for none, and that’s what makes it so attractive to the Trump administration with its plans for large-scale deportations. Unlike the 47,000 illegals now in custody, aliens rounded up under the Act did not appear due a day in court before an immigration judge to plead their case. The act appeared to allow ICE to move arrestees straight from their apprehension to a flight out of the United States.
Not so, said the Supreme Court, in granting Garcia the right to challenge his detention via habeas corpus filed in the United States, even though he is actually in the custody of the sovereign nation of El Salvador. (The habeas right has been generally supported by post-9/11 rulings for prisoners stuck in Saudi prisons by U.S. request.) That’s the bad news for those supporting Trump. The good news is the habeas petition must be filed where the alien is locked up in America (primarily Trump-friendly Louisiana and Texas), which seems to preclude broad injunctions from more liberal East Coast courts and ultimately narrow the scope of judicial review. (Cases will also need to be brought on an individual basis rather than as a class-action lawsuit.) And, since even ICE admits Garcia was deported in error, it is good that he may eventually be released from El Salvador. The Trump administration is slow-walking that process, mockingly and defiantly.
There’s another “win” for Trump in the Court decision about Garcia’s return to the U.S., a change in one word from the lower court decision. The lower court ordered Trump to “effectuate” Garcia’s return. The Supreme Court directed the Trump administration instead to “facilitate” Abrego Garcia’s release. The wording change shows the Court still wishes to show deference to the administration on matters of foreign affairs, choosing a lower standard of action, and also removing the time limits to action the lower court tried to impose. “Foreign affairs cannot operate on judicial timelines, in part because it involves sensitive country-specific considerations wholly inappropriate for judicial review,” the government’s lawyers argued. Weakened, the case was returned to the lower court.
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The Department of Homeland Security emphasized that latter portion of the order in its response: “SCOTUS agreed with us that the District Court improperly interfered with the President’s foreign affairs power. The District Court was overbearing and, as SCOTUS said, should clarify its directive with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” The justices “made clear that a district court judge cannot exercise Article II foreign affairs powers,” the White House advisor Stephen Miller wrote.
This struggle between the Trump administration and the courts, with each side claiming authority over the immigration laws, is far from over. The recent decisions duck tough questions about First Amendment rights in the Khalil case and the validity of the Alien Enemies Act in the Garcia and other cases. Some of the ancillary issues, particularly the rights to an American court-based due process for persons held overseas, echo the legal struggles of the post-9/11 era, when the Bush administration unsuccessfully argued enemy combatants held in Gitmo and elsewhere abroad had no access to American courts. That case law may yet prove controlling in what is happening with deportations now from the United States to foreign prisons. It is clear enough the Supreme Court isn’t ready to rubber-stamp either the lower courts’ or the administration’s positions.
“Beyond the specifics of implementation,” writes POLITICO, “the administration’s maneuvering appears to represent a concerted effort to evade longstanding American law by intentionally sending people to a legal black hole with no process, no rights and no recourse.” The government argued unsuccessfully at the time of 9/11 that American courts lacked jurisdiction to review detentions at Guantanamo, and that the president was free to ignore both national and international law governing the treatment of detainees. We’ll see if that stands on immigration where it fell in the War on Terror.
