President Trump has invoked the Alien Enemies Act of 1798, a wartime authority, to summarily deport suspected members of a Venezuelan gang. He also invoked a Cold War-era statute to deport a student activist at Columbia University. In this episode, Adam Cox of New York University and Ilya Somin of George Mason University join to discuss the scope of the president’s deportation power and to evaluate whether the administration violated the due process or speech rights of the deportees.
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This episode was produced by Samson Mostashari and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Yara Daraiseh, Gyuha Lee, Samson Mostashari, and Cooper Smith.
Participants
Adam Cox is the Robert A. Kindler Professor of Law at New York University School of Law, where he teaches and writes about immigration law, constitutional law, and democracy. Adam’s book is The President and Immigration Law, which he published in 2020 with coauthor Cristina Rodríguez. Adam graduated summa cum laude from the University of Michigan Law School and clerked for Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.
Ilya Somin is Professor of Law at George Mason University and the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute. His research focuses on constitutional law, federalism, and migration rights. He is the author of Free to Move: Foot Voting, Migration, and Political Freedom. Ilya writes for the Volokh Conspiracy blog at Reason Magazine. Ilya holds a BA from Amherst College, an MA in Political Science from Harvard University, and a JD from Yale Law School.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources
- Adam Cox and Cristina Rodríguez, The President and Immigration Law (2020)
- Ilya Somin, Free to Move: Foot Voting, Migration, and Political Freedom (2021)
- Adam Cox and Ahilan Arulanantham, “Explainer on First Amendment and Due Process Issues in Deportation of Pro-Palestinian Student Activist(s),” Just Security (March 12, 2025)
- Ilya Somin, “The Case Against Deporting Immigrants for ‘Pro-Terrorist’ Speech,” Volokh Conspiracy (March 10, 2025)
- Ilya Somin, “What Just Happened: The “Invasion” Executive Order and Its Dangerous Implications,” Just Security (January 28, 2025)
- Adam Cox, “The Invention of Immigration Exceptionalism,” Yale Law Review (November 2024)
- Bridges v. Wixon (1945)
- Harisiades v. Shaughnessy (1952)
Excerpt from interview: Adam Cox says deporting Khalil may violate due process due to a vague law and raise a major First Amendment issue, as it targets speech by a non-citizen.
Adam Cox: That's right. So there are really two grounds on which it might be unconstitutional to deport someone like Khalil under this provision for having engaged in speech. The first, the one that's at issue in the Barry decision that Ilya just mentioned, is the idea long held by the Supreme Court, that a law is unconstitutionally void for vagueness. It's a violation of due process if the law is so vague as to not allow a person to know what it is that's going to get them in trouble if they do it. Judge Barry said this is just that kind of law because it contains absolutely no standards about what counts as a serious foreign policy consequence, because it doesn't actually even require any action by the person, the consequence could be the result of the person's mere presence in the country. And because it delegates to a single government official, the Secretary of State, the power to make that determination, the judge held that there just weren't sufficient standards to satisfy due process. So that's a due process problem. But there is this separate potential free speech problem.
As Ilya mentioned, the Supreme Court in the middle part of the 20th century said kind of without qualification, that resident non-citizens living in this country are protected by the First Amendment, just like citizens are. And at the same time, it's true that in the decades sense that plenty have argued and courts have in some cases decided cases that have been read to suggest that the free speech rights of non-citizens are somehow less, at least in immigration context. And there's really two ways those arguments have gone. One idea is to suggest that immigrants have fewer speech rights because they're not citizens. They lack the status of being part of the people, and therefore they don't receive the same protections. The other argument, the one that's been more frequently trotted out in court, is the idea that immigration is somehow special. So maybe free speech works ordinarily, if you're a green card holder and you want to protest on Columbia's campus, you can't be criminally charged for that. But when it comes to immigration, the idea is maybe all bets are off. And the basis for that suggestion is this long standing idea that there's something constitutionally special or exceptional about immigration law that the ordinary rules of constitutional law don't apply when immigration's at stake. Now, it turns out First Amendment cases have been part of the reason that this idea has had such persistence in American thought.
But I think the cases that the courts decided actually don't support this kind of exceptionality. So since the 1950s, the Supreme Court has rejected some First Amendment claims brought by people on deportation. Ilya mentioned one case, and as he noted, it was at a time when free speech rights were not as robust as they are today. Twice since then, the Court has rejected free speech claims in immigration cases. But both of those cases involved essentially claims of selective prosecution, a claim that the government was using a facially neutral ground because of the person's speech to try to deport them. They were in violation of their visa, and they were deportable, but the argument was, well, you're only enforcing this visa rule against me because you don't like my speech. Courts, even outside the immigration context, are extremely reluctant to peek behind the motives of prosecutors. And in those cases, it's no surprise that the Supreme Court declined to decide whether the government was in fact motivated by a desire to suppress speech. Here in this case, none of those issues are really at stake because the administration's made pretty clear that it is, in fact, attempting to deport Khalil for his speech. And that might put the free speech issue for the first time, really in American history, squarely before the court.
Excerpt from interview: Ilya Somin says calling migration an "invasion" is absurd, as it could unjustly trigger extreme war powers never meant for such cases.
Ilya Somin: The Constitution has several provisions that list powers to kick in in the event of an invasion and are pretty drastic and sweeping. One is the power to suspend a writ of habeas corpus, which in plain English for all you non lawyers out there, that means that they could detain people without filing any charges or without any due process or putting them on trial, and not just immigrants, but also US citizens. And then secondly, the Constitution also says that in the event of invasion, states could, "engage in war" in response, even without authorization from a federal government. And of course, the federal government itself could presumably wage war in response to invasion as well. So if illegal migration really is an invasion, that essentially means that pretty much anytime he wants, the President could, possibly with congressional authorization, suspend the writ of habeas corpus, and also he could wage war in response against the nations that those migrants come from. And even state governments could wage war even if the federal government didn't want to. And all of that just makes it further clear that it is just batshit ridiculous to claim that illegal migration qualifies as an invasion, because there is no way the Constitution would authorize the grant of such sweeping powers in response to a supposed invasion that just consists of illegal migration or of the smuggling of contraband across the border.
They have also argued that smuggling contraband, in this case illegal drugs, qualifies as invasion as well. That is just very obviously totally at odds with both, sort of the ordinary language meaning of invasion, with the structure of the Constitution, and with anything that was intended by the framers and ratifiers at the time.
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