National Review, November 3, 2023
President Biden eloquently proclaimed that “the bloody hands of the terrorist organization Hamas” had unleashed “pure, unadulterated evil,” with “more than 1,000 civilians slaughtered” in Israel. He recalled the lesson his father imparted that silence is complicity.
Well, if silence regarding mass murder is complicity, what should we call the celebration of mass murder? Some here have openly celebrated Hamas’s slaughter. Since Hamas would have gladly killed every Jew in Israel had it the chance, such celebration is not far removed from the celebration of genocide.
The revelry has been most notable on our college campuses, often catalyzed by chapters of Students for Justice in Palestine. SJP refers to the U.S. and Canada as “occupied Turtle Island,” the latter being the name for North America in the creation stories of some indigenous peoples. And, in its vision statement, SJP seeks “a political framework that addresses collective liberation from Palestine to the Rio Grande.” This statement, much criticized in recent days, has now been scrubbed from SJP’s website.
The Anti-Defamation League reports that in the wake of Hamas’s slaughter, the George Washington University chapter of SJP proclaimed that a “settler” — presumably every Israeli Jew — “is an aggressor, a soldier, and an occupier even if they are lounging on our occupied beaches.” The Bard College chapter proclaimed that “liberation is a material process that requires confrontation by any means necessary,” and multiple chapters have “adopted the image of a person flying in a paraglider, a clear reference to the Hamas terrorists who utilized paragliders as part of their massacre.”
It is one thing for U.S. citizens to celebrate mass murder and even genocide. It is quite another for aliens to do so. They are our nation’s guests (invited or otherwise) and subject to removal. Presumably their continued presence should serve the national interest.
But won’t the First Amendment right to freedom of speech prevent the federal government from removing aliens whose views are — in the words of White House Press Secretary Karine Jean-Pierre — repugnant and disgraceful? In fact, federal law provides that aliens who endorse or espouse terrorism are removable. I should know — in 2005, as chief counsel for the House Judiciary Committee’s immigration subcommittee, I worked to secure the enactment of these provisions.
Senator Tom Cotton has already asked the Department of Homeland Security to “immediately deport any foreign national — including and especially any alien on a student visa — that has expressed support for Hamas and its murderous attacks on Israel.” And 19 members of the House or Representatives, led by Jim Banks and Jeff Duncan, have asked DHS to remove foreign students and other temporary visa holders who have supported Hamas’s terrorism. When asked earlier this week by Senator Josh Hawley (R., Mo.,) whether foreign “students . . . who . . . actively advocate for the elimination of Israel and attacks on Jewish individuals . . . [should] have their visas revoked,” DHS Secretary Alejandro Mayorkas stated that “it is a matter of legal interpretation of the statute” that he is “not in a position to provide,” but that DHS is “assessing.”
In an effort to assist DHS in its assessment, let me evaluate the claim that the removal law is unconstitutional. It’s true that the Supreme Court has ruled it unconstitutional to subject persons to criminal penalty for advocating the use of violence except to the extent that such speech is “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action.” However, it is not necessarily the case that removing an alien for such speech is also unconstitutional.
Consider that the Supreme Court has never overruled its decisions finding that the government could constitutionally deport members of the Communist Party. Consider that Supreme Court Justice Brett Kavanaugh has approvingly cited one of those decisions for the proposition that “foreign citizens may be denied certain rights and privileges that U.S. citizens possess.” Consider that the Court has made clear that deportation does not equate to punishment. Consider that while the Court has somewhat limited Congress’s once all-encompassing power over immigration, this has been so only regarding procedural due-process rights, not substantive such as freedom of speech. Consider that the Court has found campaign-finance restrictions applied to aliens to be constitutional even as it has found other restrictions to violate the First Amendment. Consider that the Court has rejected selective-prosecution claims and allowed the federal government to single out illegal aliens for deportation based on their membership in terrorist groups. Sure, a claim of selective prosecution may have helped John Lennon beat the Nixon administration’s attempt to deport him for a marijuana-possession conviction in the U.K. But advocacy of mass murder and even genocide is across a whole other universe.
It appears very likely that the Supreme Court would uphold the constitutionality of removals based on the “endorse or espouse” grounds of removal for aliens present in the U.S. The closest call would be in the case of lawful permanent residents.
President Biden’s DHS should attempt to remove those aliens who have endorsed or espoused terrorist activity. At the top of the priority list should be those foreign students who have endorsed or espoused the genocidal views of SJP chapters justifying the slaughter of every Jewish man, woman, and child in Israel as a “settler” and “lounger” who is fair game for death in pursuit of the “liberation” of Palestine “from the river to the sea” — i.e., all of Israel — through “confrontation by any means necessary.”