Mahmoud Khalil and Executive Power

On Saturday night, as he was returning home from an Iftar dinner with his eight-months pregnant wife, Mahmoud Khalil was seized by government agents. As they handcuffed him to drag him away, they lied and said that his student visa had been revoked. They also apparently lied about having a warrant. His wife, a U.S. citizen, produced evidence that he was not on a student visa, but was a permanent resident with a green card and had the right to remain in the country. The ICE agents, acting under the direction of the State Department, then said his green card was being revoked as they dragged him away in handcuffs. The Trump Administration has promised that this is the “first arrest of many.”

The reason for Khalil’s arrest is that he helped to lead protests at Columbia University denouncing Israel’s killing of tens of thousands of innocents in Gaza, many children, wanton death and destruction that he saw as genocide. The government has offered no evidence that Khalil engaged in criminal activity.

In court, the government is now citing an obscure, rarely used law that allows someone to be deported if it is determined that their presence in the United States “would have serious adverse foreign policy consequences for the United States.” The Trump Administration claims that his advocacy on behalf of Palestinians is antisemitic and threatens serious foreign policy consequences.

Now, the government cannot simply deport anyone by fabricating a claim that they are a foreign policy risk. Imagine that during a hotly contested primary election a permanent resident of many years living in Kansas is quoted in a viral social media meme that the president’s domestic policies are economically hurtful and the State Department, operating on orders from the White House, seeks to deport him. Presumably a court would intervene and conclude that this is a complete pretext to punish the person for exercising free speech rights and criticizing the president. (It doesn’t matter whether the person is a citizen or non-resident; while we talk of “free speech rights,” in fact the First Amendment is not a grant of rights to citizens but a restriction on how the government may behave.)

So how does a court decide?

Historically, when an administration official made a factual determination under a law subject to different interpretations, the courts gave that determination deference under the well-established Chevron doctrine. The person impacted would have the burden of proving the government was wrong. This was a very heavy burden.

Last summer, however, in a decision that has been cheered by Trump officials, the conservative members of the Supreme Court reversed the Chevron doctrine in Loper Bright. Now the court must determine for itself.

The Court’s Loper Bright decision effectively denies the government, and the nation, of the value of government expertise built-up over many years and multiple administrations often at great expense. The result is a transfer of enormous power to the courts. The only ones who will benefit from this decision are lawyers, since lawsuits against the government will be encouraged, and those seeking to avoid government environmental, safety, and other regulations that government experts, our experts, determined are good for the entire country and all of us.

Now, in the post-Loper Bright world, the judge in Khalil’s case should ask himself whether Khalil poses a real, significant foreign policy risk to the United States or, rather, is this a pretext, and the Trump Administration is seeking to make an example of a Palestinian Muslim because they don’t like the message that he has embraced and hope people will shrug and acquiesce (in part because Khalil is not an average American).

The answer to that question is clear. The court should do Mahmoud Khalil, his pregnant wife, free speech, and all Americans concerned with an extraordinary explosion of dangerous presidential power a favor and release Khalil so that he can return home to his wife in New York City.