Donald Trump wants to deport foreign students merely for what they say

'EVERY TIME I find one of these lunatics I take away their visa." That is how Marco Rubio, the secretary of state, last month described the Trump administration's push to deport foreign university students who had participated in campus activism. Mr Rubio initially suggested that his department had cancelled at least 300 visas. That number increasingly looks out of date as the deportation campaign has spread beyond elite east-coast schools and for conduct beyond protest and speech. More than 100 students in California alone have had their visas yanked—some of them seemingly for infractions as minor as a speeding ticket.
The crackdown combines two of President Donald Trump's campaign promises: to carry out mass deportations and to expel students involved in campus protests that erupted in response to Israel's invasion of Gaza, following the brutal attacks of October 7th 2023. Deportation is no longer just a way to reduce the number of illegal immigrants in America and deter more from coming, but a means of punishing those whose beliefs differ from the federal government's. The arrests and visa revocations have created widespread anxiety on campuses already reeling from upheavals. Lawsuits ask whether the government can deport non-citizens in good legal standing merely for their speech.
How is the State Department deciding who to target? Officials are reportedly using AI to scour students' social-media accounts for evidence that they have participated in pro-Palestinian campus protests. Betar, an activist group, says it is feeding names to the government. (It is unclear whether immigration officials are working off of such tips.) Locating these students is fairly easy. 'International students are the most tracked of all non-immigrants," explains Fanta Aw of NAFSA, an association that promotes student exchanges. A system created in the 1990s that keeps tabs on foreign students was expanded following the September 11th attacks. When university administrators check the system, called SEVIS, they find that students' permissions have been terminated by the government without warning, leaving them vulnerable to deportation.
An early and prominent case involving the arrest of Mahmoud Khalil, a Palestinian graduate student at Columbia University, illuminates the legal arguments the Trump administration is making as it tries to deport protesters. On March 8th Immigration and Customs Enforcement (ICE) agents hustled Mr Khalil away from his very pregnant wife while saying that his visa had been revoked. (According to court documents they seemed to be unaware he had a green card, which confers permanent residency.) He remains detained in Louisiana while a petition challenging his imprisonment moves through federal court in New Jersey, where he was previously held. On Truth Social, Mr Trump alleged that Mr Khalil is a 'Radical Foreign Pro-Hamas Student" and that student protesters are 'terrorist sympathisers". Mr Khalil's allies see such presidential targeting of individuals as a throwback to dark chapters of American history. 'We haven't seen a threat to free speech like this since the Red Scare" of the 1950s, says Esha Bhandari, one of his lawyers.
The Trump administration is targeting a broad group of foreigners by making aggressive use of a 1952 immigration law. Under it, the secretary of state can decree someone 'inadmissible" whose presence in the country 'would have potentially serious adverse foreign-policy consequences". Further, the government suggests that the courts can't second-guess what constitutes a serious foreign-policy consequence, nor ask for specific evidence of wrongdoing. They are arguing that 'it's a blank cheque to the administration to declare anything contrary to our foreign policy, and then revoke people's visas and deport them", says David Cole, who argued a similar case on behalf of Palestinian protesters that was litigated over two decades.
The law has rarely been used in this way. In a court brief, 150 legal scholars reported that the foreign-policy provision had been invoked in just 15 deportation cases since 1990, resulting in only four removals. If its use of the 1952 law fails, the government has also argued that Mr Khalil is deportable for withholding information on his green-card application.
For precedent, the government's lawyers cite several cases from the 1950s when the perceived threats from communism often won out over First Amendment concerns. Yet since then, in large part as a reaction to the trampling of rights during that Red Scare, the courts and Congress have strengthened free-speech protections for non-citizens. The same law Mr Rubio is invoking to deport Mr Khalil was amended in 1990 to prevent deportation based on an immigrant's beliefs, unless the secretary of state tells Congress that there is a compelling reason for deportation. It is unclear whether Mr Rubio has done so, though he asserts that Mr Khalil's presence undermines America's policy of 'combating antisemitism across the globe". In a report explaining these changes at the time, lawmakers expressed hope that 'this authority would be used sparingly and not merely because there is a likelihood that an alien will make critical remarks about the United States or its policies".
The First Amendment makes no distinction between non-citizens and citizens. But the Supreme Court has tended to defer to the executive where immigration is concerned. 'For generations, there have been people on both the left and the right who have argued that the ordinary rules that apply in constitutional law generally don't apply when immigration policies are at stake", says Adam Cox of New York University. For example, during Mr Trump's first term the court upheld the third iteration of the administration's travel ban on people from several muslim-majority countries, despite the ban's constitutionally questionable discrimination.
There are also doubts about whether the foreign-policy provision is too vague to be enforced. How can an immigrant stay on the right side of the law when they don't know what might get them deported? In a soap-opera-style twist, that was the conclusion of Mr Trump's late sister, Maryanne Trump Barry, then a district-court judge, when she ruled in 1996 that the measure was void because of its vagueness. Her decision was overturned for procedural reasons. But if Mr Khalil's case makes it to the Supreme Court, the justices could rely on her reasoning and avoid confronting the question of whether executive power over immigration takes precedence over the free-speech rights of non-citizens.
While Mr Khalil's litigation plays out, Mr Rubio will no doubt continue revoking student visas. Ms Aw says she expects to see students decide that studying in America isn't worth the stress.
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