THE FIRST AMENDMENT AND THE ALIEN NON-CITIZEN—A PRIMER
INTRODUCTION
Recent Executive Orders of the President have placed a historic focus on Executive authority around immigration. Antisemitic rhetoric from students given the privilege to study here, who have not been naturalized, has tested and will test the limits of due process in connection with their arrest and removal. Mahmoud Kahlil is a green card holder who has been detained pending removal for actions deemed supportive of terror. Despite years of judicial decisions providing broad authority to the political branches of government to exclude and remove such persons, recent courts have pushed back in ways that will undoubtedly lead to Supreme Court review and a modern rule of law on the subject. The First Amendment does indeed apply to “persons” here on our soil; however, Congress and the Executive have had broad discretion to remove or exclude persons from our country as a fundamental feature of sovereignty. While protected speech may prevent removal of certain student visa holders and green card recipients, when the line is crossed into avowed support for terrorists, fundraising for such groups, or engaging in acts of violence that target Jewish students while applauding the inhuman acts of October 7th, removal may well be authorized.
SOME INTERESTING SUPREME COURT HISTORY
In Harisiades v. Shaughnessy, 342 U.S. 580 (1952), the Supreme Court considered the removal of persons who resided in the United States but were members of the Communist Party who advocated the overthrow of the United States by force. They challenged their removal on grounds of the Fifth Amendment Due Process clause as well as the First Amendment. They also challenged their removal under the Administrative Procedure Act.
ALL such challenges failed, and the Court upheld the removals given the broad authority of the political branches to engage in foreign policy and international relations. Importantly, the Court did not consider any state of war as the basis for such actions but fundamentally as part of the prerogative of any sovereign:
“War, of course, is the most usual occasion for extensive resort to the power. Though the resident alien may be personally loyal to the United States, if his nation becomes our enemy, his allegiance prevails over his personal preference and makes him also our enemy, liable to expulsion or internment, and his property becomes subject to seizure and perhaps confiscation. But it does not require war to bring the power of deportation into existence or to authorize its exercise. Congressional apprehension of foreign or internal dangers short of war may lead to its use. So long as the alien elects to continue the ambiguity of his allegiance, his domicile here is held by a precarious tenure.”
The Court continued:
“We think that, in the present state of the world, it would be rash and irresponsible to reinterpret our fundamental law to deny or qualify the Government’s power of deportation. However desirable worldwide amelioration of the lot of aliens, we think it is peculiarly a subject for international diplomacy. It should not be initiated by judicial decision, which can only deprive our own Government of a power of defense and reprisal without obtaining for American citizens abroad any reciprocal privileges or immunities. Reform in this field must be entrusted to the branches of the Government in control of our international relations and treaty-making powers.
We hold that the Act is not invalid under the Due Process Clause. These aliens are not entitled to judicial relief unless some other constitutional limitation has been transgressed, to which inquiry we turn.”
The First Amendment claims were also dismissed on this reasoning:
“Our Constitution sought to leave no excuse for violent attack on the status quo by providing a legal alternative— attack by ballot. To arm all men for orderly change, the Constitution put in their hands a right to influence the electorate by press, speech, and assembly. This means freedom to advocate or promote Communism by means of the ballot box, but it does not include the practice or incitement of violence.”
This case has been cited numerous times in the years since and may well be instructive on the Alien Enemies Act cases as well, now the subject of an Emergency Application for Review sought by the Administration before the Supreme Court and filed on Friday, March 28th.
FREEDOM OF EXPRESSION IS PROTECTED FOR NON-CITIZENS AND SHOULD BE, BUT WHERE IS THE LINE?
Congress has long provided the Executive with broad discretion to exclude or remove aliens under circumstances where some actions are not even reviewable by the courts. That will be discussed later. Here is the federal statute most at issue.
“8 U.S.C. § 1182(a)(3), which provides (in subsections (B)(i)(VII) and B(iii)) that:
Any alien who… endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization… is inadmissible…
(B) Terrorist activities
(i) In general
Any alien who-
(I) has engaged in a terrorist activity, or
(II) a consular officer or the Attorney General knows, or has reasonable ground to believe, is likely to engage after entry in any terrorist activity (as defined in clause (iii)),
is excludable. An alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered, for purposes of this chapter, to be engaged in a terrorist activity.
(ii) “Terrorist activity” defined
As used in this chapter, the term “terrorist activity” means any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:
(I) The hijacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.
(III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18) or upon the liberty of such a person.
(IV) An assassination.
(V) The use of any-
(a) biological agent, chemical agent, or nuclear weapon or device, or
(b) explosive or firearm (other than for mere personal monetary gain),
with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.
(VI) A threat, attempt, or conspiracy to do any of the foregoing.
(iii) “Engage in terrorist activity” defined
As used in this chapter, the term “engage in terrorist activity” means to commit, in an individual capacity or as a member of an organization, an act of terrorist activity or an act which the actor knows, or reasonably should know, affords material support to any individual, organization, or government in conducting a terrorist activity at any time, including any of the following acts:
“(I) The preparation or planning of a terrorist activity.
(II) The gathering of information on potential targets for terrorist activity.
(III) The providing of any type of material support, including a safe house, transportation, communications, funds, false identification, weapons, explosives, or training, to any individual the actor knows or has reason to believe has committed or plans to commit a terrorist activity.
(IV) The soliciting of funds or other things of value for terrorist activity or for any terrorist organization.
(V) The solicitation of any individual for membership in a terrorist organization, terrorist government, or to engage in a terrorist activity.
(C) Foreign policy
(i) In general
An alien whose entry or proposed 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 excludable.”
Any ground for exclusion is, of course, also a ground for removal. The cases of Mahmoud Kahlil and similar persons who have not declared their allegiance to the United States and who have provided support for Hamas and advocated violence against Jews domestically are certainly subject to potential removal. The First Amendment rights of a non-citizen may not be as absolute as those of a citizen based upon prior case law, and this is because of the overriding issues of sovereignty and international relations that are intertwined with removal and admission decisions. If the political branch, the Executive in this instance, marshals’ information that is within the statute herein, the matter is closed and removal is warranted. Mr. Khalil may have exceeded the boundaries of permissible discourse protected by the First Amendment, or he may have simply lied to get here, which creates an almost unlimited discretion on the part of the Executive to remove him.
In short, the limits of Executive authority to so remove will be tested in an atmosphere of great volatility at home and abroad. In a recent 2024 case involving a citizen who wanted a visa for her Salvadoran husband, but such visa was declined by a U.S. consular official who declared him an MS-13 member, Justice Barrett marshaled some important principles that will possibly guide the Court’s hand in the cases to come. The Court in Department of State v. Munoz declined to second guess the determination of the State Department, as such determination was a political question. The “right to marry” recognized for citizens did not negate the political decision of the Executive to deny his visa. She wrote for the 6-3 majority (not surprisingly, Justices Sotomayor, Kagan, and Jackson felt this right was violated and that apparently marital bliss would “de-MS-13” her putative spouse):
“For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a `fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control. Congress can delegate to executive officials the discretionary authority to admit noncitizens immune from judicial inquiry or interference. citing Harisiades v. Shaughnessy, 342 U.S. 580, 588-591 (1952). When it does so, the action of an executive officer to admit or to exclude an alien is final and conclusive. The judicial branch has no role to play unless expressly authorized by law. The Immigration and Nationality Act (INA) does not authorize judicial review of a consular officer’s denial of a visa; thus, as a rule, the federal courts cannot review those decisions. This principle is known as the doctrine of consular nonreviewability.”
The deference given to the Executive was examined historically by the Court:
“From the beginning, the admission of noncitizens into the country was characterized as “of favor [and] not of right.” J. Madison, Report of 1800 (Jan. 7, 1800), in 17 Papers of James Madison 319 (D. Mattern, J. Stagg, J. Cross, & S. Perdue eds. 1991) (emphasis added); see also 2 Records of the Federal Convention of 1787, p. 238 (M. Farrand ed. 1911) (recounting Gouverneur Morris’s observation that “every Society from a great nation down to a club has the right of declaring the conditions on which new members should be admitted”); Debate on Virginia Resolutions, in The Virginia Report of 1799-1800, p. 31 (1850) (“By the law of nations, it is left in the power of all states to take such measures about the admission of strangers as they think convenient”). Consistent with this view, the 1798 Act Concerning Aliens gave the President complete discretion to remove “all such aliens as he shall judge dangerous to the peace and safety of the United States.” 1 Stat. 571.
The power to exclude aliens is inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government. While families of putative immigrants certainly have an interest in their admission, it is a fallacy to leap from that premise to the conclusion that United States citizens have a “fundamental right'” that can limit how Congress exercises “the Nation’s sovereign power to admit or exclude foreigners.”
This is powerful language. The President’s Proclamation regarding Enemy Aliens may well be received with greater deference than that recently shown by the D.C. Court of Appeals. With respect to the removal of people such as Mr. Khalil, subject to principles of Fifth Amendment Due Process and the First Amendment rights of such persons, the discretion provided to the Executive by Congress and as a matter of direct Constitutional authority is broad and, in many instances, non-reviewable. Removal and exclusion are closely intertwined, and it remains to be seen whether the current Executive branch will be able to exercise its vast discretion given the current climate of injunctions and pushback by the judiciary.
CONCLUSION
It is fundamental that “persons” on our soil have First Amendment and Due Process rights, the extent of which tracks the factual issues attendant to their stay here. In fact, a long line of cases has provided significant discretion on the part of the Executive as well as in the content of Congressional enactments to exclude, remove, or detain those that are a threat to the peace and safety of our Nation. The speech of such people is protected but not to the extent of a citizen. Productive discourse is to be protected, but the line to prohibited acts and speech by non-citizens is hazy. Time will tell.
Mike Imprevento
March 30th 2025
