The 1952 law under which the Trump administration seeks to deport Mahmoud Khalil, a lawful permanent resident who helped organize protests at Columbia University, is largely untested.
Largely, but not entirely, as it was ruled unconstitutional in 1996 by President Trump’s sister, Judge Maryanne Trump Barry.
Judge Barry considered the 1952 law, which the Trump administration has said will play a major role in its deportation plans, and asked whether it could be squared with the Constitution. “The answer,” she wrote, “is a ringing ‘no’.”
The case involved Mario Ruiz Massieu, a former Mexican official whom the Clinton administration sought to deport to Mexico.
The law, she wrote, “confers upon a single individual, the secretary of state, the unfettered and unreviewable discretion to deport any alien lawfully within the United States” if “that person’s mere presence here would impact in some unexplained way on the foreign policy interests of the United States.”
That violated the Constitution in at least two ways, Judge Barry wrote. First, she said it was too vague to give notice to the people subject to it of what conduct it prohibited.
The law applied to, among others, “lifelong permanent residents.”
“Those who have been in this country for a substantial period of time,” she wrote, “it would mean the loss of all they had built for themselves here and an irreparable disruption of their lives.”
Judge Barry offered a second reason for striking down the law, saying that it was an unconstitutional delegation of legislative power to the secretary of state, granting him complete discretion.
The law ran afoul, she wrote, of the nondelegation doctrine, which forbids Congress from giving too much leeway to executive branch officials with insufficient guidance.
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