The latest court ruling against deportations ignores precedent and won’t hold up

A federal judge has declared two provisions of the Immigration and Nationality Act unconstitutional in a ninety-page opinion that never mentions the Supreme Court cases upholding exactly such a law.

Recently, in Stanford Daily v. Rubio, Judge Noël Wise of the Northern District of California held that the government may not deport foreign visitors or revoke their visas based on “protected speech.” She declared the law’s foreign-policy removal and visa-revocation provisions unconstitutional to that extent.

Her opinion holds that noncitizens enjoy First Amendment rights to the same extent as citizens. For that proposition, it leans on the Ninth Circuit’s 1995 decision in American-Arab Anti-Discrimination Committee v. Reno. That case arose from the government’s effort to deport members and supporters of the Popular Front for the Liberation of Palestine.

Here is what Wise’s opinion leaves out: That very litigation all the way to the Supreme Court, where the ruling she cited was overturned. The government won the case.

In Reno v. American-Arab Anti-Discrimination Committee , the Supreme Court held that Congress had stripped the lower courts of jurisdiction over such claims. Justice Antonin Scalia wrote for the court that “[a]s a general matter,” an alien “unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation,” and that the executive “should not have to disclose its ‘real’ reasons” for deporting particular foreign nationals.

The plaintiffs in this new case are lawfully present, so a careful court might have distinguished the case on that ground. But Wise did not do so. Her opinion cites the Ninth Circuit decision four times and completely omits the Supreme Court’s last word in the same case.

The Supreme Court’s ruling is part of a much larger jurisprudential pattern. In 1904, Turner v. Williams upheld the exclusion of an English anarchist for his advocacy. Chief Justice Melville Fuller wrote that governments “cannot be denied the power of self-preservation.” Wise failed to cite or acknowledge this case.

In Harisiades v. Shaughnessy , which might be the closest case to the current one, the Supreme Court in 1952 upheld the deportation of lawful permanent residents, one of whom had been in the country for thirty-eight years, due to Communist Party membership. The same First Amendment objection was rejected.

In Mathews v. Diaz , the Supreme Court in 1976 explained that in immigration, “Congress regularly makes rules that would be unacceptable if applied to citizens.” Wise failed even to cite this case, let alone confront its reasoning.

Another more recent case missing from Wise’s opinion is Trump v. Hawaii , which in 2018 upheld a statute allowing presidents to bar aliens they find “detrimental to the interests of the United States.” The court’s opinion states that the law “exudes deference to the president in every clause.”

Wise also fails to mention or confront or name the doctrine — “plenary power” — that has governed this area of law since the nineteenth century.

Contrary to what some say, foreigners lawfully among us do indeed have free-speech rights. The Supreme Court said as much in its 1945 decision in Bridges v. Wixon . However — and this is very important — removal from the U.S. is not a punishment.

In the Reno case mentioned above , the Supreme Court explained that a deported alien “is not being punished” for his conduct but “is merely being held to the terms under which he was admitted.” The court located the limit in the nature of the removal power rather than in any discount on the alien’s rights. A visa is an invitation, and this country’s invitations have always come with the understanding that the host, not the guest, decides when the arrangement has soured.

Nor did the host act on a whim. The referral letters and determination memoranda quoted in the opinion gave two reasons for the government’s actions. One was conduct “creating a hostile environment for Jewish students,” and the other was conduct “indicating support for a designated terrorist organization.”

Judge Wise recites both but weighs neither. Congress wrote the second reason into the statute books : Any alien who “endorses or espouses terrorist activity” is inadmissible and, under a companion provision, deportable. Yet Judge Wise, hunting for gentler alternatives to the provision she struck, oddly cites the statutory language as “speech-neutral.”

Yet the Supreme Court, for its part, held in 2010, in Holder v. Humanitarian Law Project , that Congress may imprison even American citizens if they engage in advocacy coordinated with designated terrorist groups. Under Wise’s ruling, the same government may not so much as un-invite a foreign guest who applauds a terrorist group’s massacres. The hierarchy is clearly upside down.

Wise declared the deportation provision unconstitutionally vague because it turns on the Secretary of State’s personal determination that a foreigner’s presence compromises “a compelling United States foreign policy interest.” Her supporting authorities are two district-court decisions: One that was reversed by the Third Circuit in 1996, the other which was vacated by that court this year. It’s not that Wise is unaware of this: Her opinion merely nods to both outcomes in a footnote and then marches on.

Meanwhile, Matter of Ruiz-Massieu , the 1996 Board of Immigration Appeals decision squarely upholding this provision against the same challenges, is acknowledged only as an example of enforcement history — its holding is never engaged. Judge Wise also quotes Secretary Rubio’s assurance that nobody loses a visa for protesting paper straws as proof that no standard exists. But a standard that separates paper straws from Hamas is not standardless. Most Americans could administer such a thing in their sleep, which may be why Congress assigned it to a cabinet officer rather than a faculty lounge.

There was an off-ramp for Wise, but she drove past it. Under Rust v. Sullivan and Justice Brandeis’s canonical rules in Ashwander v. TVA , a court facing constitutional doubts must first look for a saving construction. Yet “constitutional avoidance” appears nowhere in Wise’s opinion. Invalidating an act of Congress, even in part, is supposed to be a last resort, but Wise never even bothered to try another route.

Wise’s ruling is already being paraded by activists as vindication for Mahmoud Khalil — not least by Khalil himself . But it is nothing of the sort. It removes no one from proceedings, releases no one, vacates no removal order, and cancels no visa revocation. It also binds no other court. A district court opinion is precedent for nobody. Khalil, the Columbia graduate and green-card holder whose March 2025 arrest opened this drama, is not a party to the case, so the decision does not touch the order governing him.

Last September, an immigration judge ordered him removed on a separate ground: willful omissions from his green-card application, including his service with the United Nations Relief and Works Agency and his work in the Syria office of the British Embassy in Beirut. No ruling about protected speech can launder a false application.

The Stanford Daily has been here before. In the 1970s, after police searched its newsroom, the paper won a case in the district court and the Ninth Circuit, only to be reversed by the Supreme Court in Zurcher v. Stanford Daily . Every journalism student reads that case with a shudder. The Justice Department has sixty days to notice an appeal, but it shouldn’t take nearly that long to make its decision.

The Ninth Circuit should reverse Wise’s unwise ruling. If it prefers its own 1995 opinion to the way the Supreme Court ended that case in 1999, it can take its chances and remind everyone how that last Stanford Daily experiment ended.

The guest list of the U.S. belongs to its hosts. It is time the courts handed it back.

Mark Goldfeder is a former law professor and director of the National Jewish Advocacy Center.