Is It Constitutional to Deport the Ringleader of Columbia University’s Pro-Hamas Demonstrations?
By George Fishman on March 12, 2025
DHS has arrested and plans to seek the deportation of Mahmoud Khalil, who, according to the White House press secretary, “organized group protests [at Columbia University] that not only disrupted college campus classes and harassed Jewish-American students and made them feel unsafe on their own college campus, but also distributed pro-Hamas propaganda flyers”.
A senior DHS official has indicated that the basis for Khalil’s arrest is the foreign policy ground of deportation, which provides that “an alien whose presence or activities in the [U.S.] the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the [U.S.] is deportable”.
But is it constitutional to deport Khalil on this basis? The foreign policy ground of deportation has been used — and thus tested in court — very rarely. In 1996, a federal district court ruled in Massieu v. Reno that it was unconstitutional for being 1) void for vagueness, 2) in violation of the Due Process Clause of the Fifth Amendment, and 3) an unconstitutional delegation of legislative power to the executive branch. In essence, “Absent a[n alien’s] meaningful opportunity to be heard, the Secretary of State’s unreviewable and concededly ‘unfettered discretion’ ... is ... unconstitutional.” The district court’s decision was overturned on appeal, but the appeals court did not address the constitutional issues.
https://cis.org/Fishman/It-Constitutional-Deport-Ringleader-Columbia-Universitys-ProHamas-Demonstrations
