On the role of Rubio in deporting Khalil

I read the statute so you don't have to

Ok, this is going to be nerdy. The bottom line takeaway is that the Secretary of State’s opinion is not relevant to the issue of whether Khalil supported Hamas and whether that was a First Amendment right. Try to follow, even if your eyes cross. There are two sections of the statute neatly called B and C. They differ. That’s what you need to know.

DON”T BE GASLIGHTED. There is a statute out there. You can read it yourself to see if I am right. (Do prepared to have your eyes crossed if you do.)

It is important to note a couple of things about the actual statute. First: "Section 237" that everyone is talking about refers to the original ACT. The relevant parts here are codified under 8 USC 1227, which is easier to find on line. 1227 is concerned with deportable aliens, and covers a wide range of things, including child abuse.

There are two sections that might apply to Khalil— 8 USC 1227 (a)(4)(B) (about espousing terrorism) and (a)(4)(C): about being a problem for foreign policy.

That may seem nerdy, but it is IMPORTANT. (B) does NOT HAVE the language about the Secretary of State's qualms. He has no statutory authority to order a deportation just because he thinks that someone espouses terrorism, even designated terrorists. That is for immigration court to decide. With evidence and all that.

The idea that the Secretary of State can just decide there's a problem is stated in the statute C as "An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable."

There isn't word one in the statute about the Secretary's "personal belief,” though a lot of reporting is parroting this, I presume quoting from the White House.¹

The Secretary of State's belief in (C) is two-pronged and as far as I can tell both prongs are required (there is no "or" in the wording)

---first, the belief must have a reasonable ground. It can’t be a belief in an alternative fact.

--second, the belief must be that the deportable alien's action would have "serious adverse foreign policy CONSEQUENCES.”

OK, what CONSEQUENCES for foreign policy arise from a student protest? [Remember, in this context he can actively shriek "i love Hamas;" That puts us back in B, not C. (Not there's any evidence he did so shriek).]

To get to the Rubio-in-a-snit land, you have to ask “what effect on foreign policy does “I love Hamas and you should too” create? Is it serious? Adverse?

This protest certainly didn't CHANGE foreign policy. Nothing stopped our support of Israel. Did it somehow "malign" foreign policy that had adverse consequences FOR THAT POLICY? Remember, btw, this is BIDEN's policy we are talking here. Did Biden stop trying to negotiate a peace deal because Khalil made him feel bad about it? No. Has it affected trump's policy? Assuming we know what trump's policy is, no.²

There is caselaw apparently that says the Immigration court considers a Secretary of State's decision as non-rebuttable.³ I don't know the facts of that case, but I am willing to bet my Social Security check that it didn't have First Amendment implications. But at a minimum before it can be non-rebuttable it has to meet the two prongs I mentioned. Otherwise it doesn't fit in the statute at all.

I can see why this is rarely used because it is hard to come up with something that actually has consequences for foreign policy. One might be the discovery that the green card holder is blackmailing people in the state department to get them to take positions contrary to our foreign policy. In that case I can see the Secretary of State not going into detail but simply saying "I have reason to believe that people within the State Dept are being suborned." But a ineffective protest so far as government action goes? Can't see it.

Unless somehow having people discover the downsides of our policy so that more disagree with it than did before is somehow an adverse consequence that affects...nah, what does it affect? But at this point, it is clear that disagreeing about ANYTHING trump does is going to get you punished, one way or another.

1. His beliefs about endorsing terrorism, remember are simply not relevant. The terrorist provision does not provide for unilateral decisions by the Secretary of State. I can't emphasize this enough.

2. When you think about it, the effect of widely maligning the Biden policy was a big factor in getting trump elected at all. All those pure of heart who wouldn’t vote.

3. This might be where the whole “personal opinion” thing came from, though I think it is more that belief (not reasonable) of this administration that their personal opinions are actually codified law to be acted on.