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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts When "Good" Laws are Given to Bad People
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Sunday, April 13, 2025
When "Good" Laws are Given to Bad People
Mark Tushnet
I'm about to "defend" the statute that's being used to remove Mahmoud Khalil from the United States. But I have to begin by saying as forcefully as I can that I don't believe for a moment that the Trump administration is using the statute in good faith. Yet I also don't believe that any judge, even one who deep down might share that view, would actually hold that the use was in bad faith (much less that two court of appeals judges would, much less that five Supreme Court justices would). So, as a matter of legal analysis, we're stuck with trying to see whether or how the statute might be found not to apply in the present circumstances, either as a matter of statutory interpretation or constitutional law. You have to piece together two provisions to get the full picture. The first states that noncitizens, including permanent resident aliens, can be removed (the current term for "deported") when the secretary of state has “reasonable grounds to believe” that the
noncitizen’s continued presence or actions in the United States would
have “potentially serious adverse foreign policy consequences.” The second provides that the foreign policy provision can't be invoked "because of the alien's past, current, or expected beliefs, statements,
or associations, if such beliefs, statements, or associations would be
lawful within the United States, unless the Secretary of State
personally determines that the alien's admission would compromise a
compelling United States foreign policy interest." Here's a scenario where these provisions make sense. Jair Bolsonaro fomented a failed coup in Brazil. He then came to the United States lawfully, that is, with some sort of visa. Suppose that while he was in the United States he continued to urge his supporters in Brazil to plan for some future antigovernment activities, including a possible coup. Assume that this counts as "mere advocacy" and not "incitement to imminent unlawful conduct" under US free speech law. The Brazilian government lets the United States know that it regards Bolsonaro's presence in the United States as a demonstration of US hostility to it. The Secretary of State concludes that Bolsonaro's statements are complicating US negotiations with Brazil over some important military or trade arrangements. (Remember, this is a hypothetical!). The Secretary finds (referring to the Brazilian government's objections) that Bolsonaro's continued presence has "potentially serious adverse foreign policy consequences," one of which is the negotiation difficulties, which "compromise a compelling ... foreign policy interest." (You can fill in other figures for Bolsonaro; older readers might say "the Shah of Iran" or "Martin Bormann" [though there's a separate provision dealing with Nazis].) It seems to me clear that allowing Bolsonaro's removal under these circumstances might well be good policy and raises no substantial constitutional questions. Khalil is obviously different from Bolsonaro--an obscure graduate student rather than the former president of another nation. But it's not clear to me that the statute should be read to exclude Khalil from its coverage--and that notwithstanding the fact that the legislative history indicates that the provision should be applied sparingly (or that it originated in the notorious McCarren-Walter Act). Take the "one obscure person" versus "former president" distinction. Foreign policy problems take lots of forms. Some can be created by a single person, but others can be created when a bunch of people--acting in concert or independently--do things that cause such problems. So, it seems to me, the statutory question is whether the Secretary of State has "reasonable grounds to believe" that Khalil's statements, taken together with those of others (both US citizens and noncitizens) compromises the (assertedly) "compelling" foreign policy interest in combating anti-Semitism. With questions of good faith put to the side (for reasons I've mentioned), it seems to me highly unlikely that the federal courts would (ultimately) conclude that the Secretary's decision was unreasonable. Some, including apparently President Trump's sister when she was a federal judge have said that the statute was unconstitutionally vague because it fails to give those subject to potential removal fair notice of what activities will trigger their removal. That, though, seems to me the result of the fact that compelling foreign policy interests can cover a wide range and indeed can change from time to time. So, for example, gaining access to some rare mineral might be a compelling foreign policy interest today but not five years from now. Or, more pertinently, combating anti-Semitism might be a compelling foreign policy interest today but not when the person subject to removal received his or her visa (or green card). So, it seems to me, it would be difficult to write a statute that dealt with the problem to which this one is addressed in any more specific terms. The statute's as clear as the subject matter permits. At least insofar as I've been able to follow the discussions that leaves the First Amendment. The relevant doctrine is that of unconstitutional conditions, and I confess at the outset that I don't have a firm grasp on what that doctrine actually is (nor, I think, does anyone else). The doctrine is triggered when a person seeks something that the government has discretion to grant or withhold. The government says that it will give you that thing only if you either say things the government likes or refrain from saying things the government dislikes. The idea behind the doctrine is something like this: The government can't leverage the discretionary power it has over the thing you want to get you to do something else. And, to the extent there's an explanation for that principle, it seems to be that the government can define the scope of its discretionary program, so it can indeed leverage its power to get you to do things consistent with the program's goals, but it can't get you to do things outside the program's scope. Of course everything turns here on what the scope of the program is. For admission to the United States, it would seem to be something like: letting people in whose presence in the United States, whether temporarily or permanently, is consistent with the government's foreign policy goals. (I should note that scholarship on the unconstitutional conditions doctrine sometimes suggests some limitations other than "leverage on things outside the program's scope," but they are, in my view, even less likely to find judicial support in Khalil's case.) And, if that's the scope of the program, I'd bet that the courts would hold that the "leveraging" effects of discretionary denial is within the program's scope. So, in the end, at least as a predictive matter I'd bet that Khalil's likely to lose his statutory and constitutional challenges (though he might have some interim victories, which might not be trivial in terms of their effects on generating general opposition to Trump's policies; in particular, I look forward to the effort to depose Marco Rubio to find out what exactly he "personally" knew about Khalil when he signed the document directing Khalil's removal). In our podcast Mike Seidman and I have been going back and forth on the question of whether it's politically helpful to challenge Trump administration policies on constitutional grounds (I think probably a bit sometimes, he thinks probably not). The Khalil case poses a different and in some ways more troubling problem. His removal is an obvious injustice but, I've strongly suggested above, the injustice is in some sense perfectly legal. (I'm reminded here of the last line of Grant Gilmore's Ages of American Law: "In hell there will be nothing but law, and due process will be meticulously observed.") What to do? Well, maybe get a bunch of judges willing to look realistically at the good faith of government officials. I won't hold my breath. Or listen to Thomas Jefferson (and hold your breath): "[O]ur present situation is not a natural one.... A little patience, and we shall see the reign of witches pass over,
their spells dissolve, and the people, recovering their true sight,
restore their government to it’s true principles." In short, don't elect witches.
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Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. 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Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |