The first months of the second Trump term have been marked by such a blizzard of activity, that it is rare when a story cuts through and captures public opinion for more than 24 hours. An exception to the rule has been the arrest, a little more than a week ago, of Mahmoud Khalil, an Algerian citizen and recent Columbia graduate who had been a leader in the campus protests of the last year. The story sits at the intersection of two of the most prominent and controversial promises of the new administration: that it will bring a drastic change of course on immigration, and that it will curb academic radicalism. Its resonance is increased by the fact that it involves a figure whose activism a large part of our philo-Semitic and (despite recent declines) pro-Israel population regards with horror, and whose personal story (he is a green card holder, married to an American citizen who is eight months pregnant) engenders sympathy from many. It has thus managed to hold public attention even amidst the flurry of other news.
According to current reporting, the Trump administration has not charged Khalil with a specific crime, and instead has pointed to his political beliefs, ideological sympathies, and protest involvement as the reason for his impending deportation. The Trump administration cites law giving the executive sweeping authority to remove noncitizens whose continuing residence “would have potentially serious adverse foreign policy consequences for the United States” as the grounds for the deportation.
The underlying facts in some important respects remain unclear, and more details may come out soon. Moreover, the legal situation is murky. If evidence of concrete criminal behavior or material ties to terrorism emerges, then of course Khalil should face the full force of the law. As it stands now, though, it may be useful to abstract away from the particulars and consider some of the general issues the case raises.
One refrain from center-right commentators all the way up to the secretary of state himself has been that deporting Khalil is “not a free speech issue”—because, it is alleged, as a noncitizen Khalil doesn’t have the same robust First Amendment rights as citizens. While there is weighty evidence on the other side, even some civil-libertarian commentators have admitted that “it’s unclear ‘whether noncitizens have the same First Amendment rights as citizens with respect to the deportation process.” Supporters of Khalil’s deportation have also argued that free-speech concerns are simply irrelevant here, since immigration involves sensitive issues of national security where the government has been delegated broad discretion to proceed according to its best lights with regard to noncitizens, be they legal residents here or not. What these rationales share is an intuition that unless a clearly identifiable violation of an individual’s legal rights with respect to expression have been violated, then it is a mistake to examine the matter from the perspective of freedom of speech.
“The Khalil case risks having similarly perverse effects.”
It is remarkable to hear this argument from conservatives, who have (rightly) spent the last half-decade decrying cancel culture and social intolerance for undermining liberty of expression. During the Great Awokening, there were indeed violations of legal speech rights. But the greatest degradation of freedom of speech as a practice and cultural value in the last decade came from strictly speaking legal activity that was nonetheless constrictive, oppressive, and out of step with the norms of toleration, fair play toward ideological adversaries, and civil if heated disagreement that in fact make free speech a lived reality and not a mere parchment promise. The Khalil case risks having similarly perverse effects, even if the administration’s case against him proves in the end to have sufficient legal footing.
Whether green-card holders or student-visa holders or other noncitizens here as legal residents technically have free-speech rights equivalent to citizens must be distinguished from whether the rationale supplied for deporting Khalil (and likely others) will in fact chill speech. It is very possible for the answer to the first question to be no, while the answer to the second question is yes. Just as it was right for conservative critics of cancel culture over the past few years to view the kneejerk response of progressives when people were fired or hounded on social media or mobbed in public—that “the First Amendment only gives you rights against the government”—as a pathetic dodge, it is unserious to insist that “this is not a free speech issue” simply because Khalil is not a citizen.
Not only on campuses, but also in many walks of American life, lawful noncitizen residents are present in great numbers. Given this reality, the important question for supporters of free speech to ask themselves is not “Is it technically within the government’s remit to remove Khalil from American soil without a procedurally robust finding of criminal conduct, apparently in response to his speech, and on a public rationale left vague?” Instead, they should ask, “Will removing Khalil make American campuses and other important arenas more paranoid, more meddling, less open to frank exchange of views, less willing to tolerate disagreement?” This is how a person sincerely committed to a culture of free expression should evaluate such cases. It is tendentious and misleading to reduce the question of whether or not we are honoring a multifaceted and demanding ideal like free speech to the issue of whether specific legal entitlements have been infringed.
By historical and comparative standards, modern America has been extremely permissive about who enters the country for work and study. The percentage of foreign-born Americans is higher than it has ever been, and likewise a record number of student visas has been issued in recent years. The institution at the heart of this controversy, Columbia, has one of the highest rates of foreign students in the United States, and our prestigious universities in general tend to have high rates of international attendees. The presence of foreign students in several high-profile incidents during the campus unrest of the past year raised the salience of higher-ed demographics as a political issue, and linked it up with the broader trend of concern about immigration levels and whether new arrivals are successfully assimilating. As a result, it is perhaps not surprising that much of the support for Khalil’s deportation seems to stem less from the particulars of the allegations against him than from the way in which the decision to remove him appears to symbolize a commitment to achieve a general remaking of the balance between citizens and noncitizens in important institutions in education and the labor market.
“These are great American values and traditions.”
I am sympathetic to these concerns. The unprecedented rate of immigration in recent decades, while bringing some notable benefits, has also had important negative effects on social cohesion, civic comity, political stability, and the fairness of the economy for the less well-off; and the readiness with which immigration-skeptical arguments have been cast as racist, anti-democratic, or illiberal has contributed to the remarkable degree of alienation and dissatisfaction with mainstream institutions that characterizes American life today. It is perfectly legitimate, when public opinion is behind it, for a democratic country to enact and rigidly enforce a restrictive immigration policy.
In terms of higher education, while it is imperative for US universities to remain open to genuinely top talent from across the world, it is simply not the case that the status quo of constant expansion of international students and scholars at universities is a good beyond contestation. If we collectively believe that we have too many international students, or that we are admitting the wrong sort of student from abroad, then by all means we should change policy. But the way to achieve this is at the point of decision about who should be eligible for visas in the first place, and according to what kinds of criteria. Deportations justified under such vague headings as being “anti-American” and “pro-Hamas” or promoting beliefs “aligned with” terrorism seem unlikely to advance a systematic, consistent, and rational immigration policy that works for Americans.
Some on the American right have made a (correct, I think) critique of permissiveness toward illegal immigration on the basis of republican values. The existence on American soil of a large class of people who exist outside the protection of regular law—who do not possess the same legal rights and recourses, who lack access to due process and public institutions, and who are therefore placed in a position of dependency on private actors that is ripe for all sorts of exploitation and mistreatment—is inconsistent with the proper republican ethos of equal rights-holders meeting on a footing of independence. It corrodes our civic culture by accustoming us to interact with a vast set of people in our midst who are given over to arbitrary treatment. And it habituates us to think of the country merely as a zone of economic activity in which civil rights and impartial legal protection are inessential.
Some libertarians are willing to bite the bullet and hold up places like Dubai that have formally instituted an economic system in which large numbers of workers lack meaningful civil rights. For these libertarians, a model in which we let many more people live and work here, while keeping those immigrants outside the core of the civic compact, is preferable to immigration restriction. But Americans have wisely shown no attraction to such a model. The most fundamental small-r republican intuition of all is that having different classes of rights for different long-term inhabitants of a common territory is morally corrupting.
My own view is that any lawful resident should have every right that full citizens have except certain ones explicitly related to exercising political power (to vote, to serve in certain public offices, to receive a security clearance), but the point here is not to debate specifics. It is simply to remind us that it is antithetical to any decent form of democracy or republicanism to have a population living among us who lack the ordinary legal remedies and protections that the rest of us have, and who therefore are at the mercy of administrative whim or private abuse. If we feel that the balance between citizens and noncitizens is off in our major institutions and industries, then by all means, let us as a democracy remake our immigration policy; but we should not treat those whom we have decided to admit more arbitrarily and with less concern than we do full citizens.
Now, unless clearer evidence of concrete wrongdoing is adduced, an implication of the Khalil deportation is that we are henceforth placing lawful residents in something more like the position of precarity that illegal immigrants are in. They will be subject to government discretion and caprice—a perverse and unrepublican result given the fact our own authorities welcomed them here. The Khalil arrest seems to blur the line between legal and illegal immigrants, to make the condition of the former more like the latter—an ironic fact given that the administration has been keen to emphasize the uniquely problematic character of illegal immigration.
In the context of education, the dissonance and perversity are evident: To give out visas to foreign students and then send the message that it is safe for their American peers to say certain kinds of things or participate in certain forms of assembly but not for them to do so would compromise the spirit of fellowship and free inquiry upon which universities depend. Before raising a certain topic, ought students to check the citizenship status of their peers to make sure that they don’t lead them to mistakenly overstep a hazily drawn line?
There is a plausible case that, while scholarship, science, and letters are indeed universal, the university as an institution that receives enormous public subsidies and that plays an outsized role in shaping America’s social order, status hierarchy, and labor market ought to become more nationalist, more patriotic, and less cosmopolitan in its orientation. It is vital that honest public debate on this question occur as part of the overall conversation on immigration and nationhood that we are now carrying out. But even if one lands at the nationalist end of the spectrum, that does not mean that we should bring students and workers into our society and then deny them the civil rights we most cherish for ourselves. Even if we as a country want to give out fewer student visas or green cards or H1-B visas or whatever, those whom we do deem worthy of such a status ought not to be left vulnerable to administrative caprice; and I as an American want them to be able to speak freely and engage in lawful assembly, for these are great American values and traditions.
The way to revise the American immigration settlement in a more restrictionist direction, should American public opinion continue to demand it, is through general changes of law and policy that restrict entry and access. It is not by making the position of those who are here lawfully—even those who have some views that are unpopular or unpalatable—more vulnerable and insecure, and more distant from the norm for American citizens. That is not, at least, how I would wish a constitutional republic with a glorious (and unfortunately, as the vice president eloquently recognized, increasingly unusual) commitment to freedom of speech to conduct itself.