FIRE’s Embarrassingly Amateur Description of Kleindienst v. Mandel

Here we go again...

While the legal team for Mahmoud Khalil completely failed to cite the Supreme Court decision that is directly on point to their claim, FIRE did mention it in the amicus brief they filed on Khalil’s behalf. In a footnote. The most important case – the one the Supreme Court itself cites in nearly every immigration case as its test for Constitutional challenges – relegated to a footnote by FIRE. Even worse than this is how badly that footnote misinterprets Kleindienst.

FIRE’s footnote attempts to distinguish Kleindienst by saying that Kleindienst only applies to exclusion of aliens and not deportation. It quotes from Kleindienst to support this claim.

In 1972, the Supreme Court held the First Amendment does not bar the government from considering speech when deciding whether to admit an immigrant because “unadmitted and nonresident alien[s] ha[ve] no constitutional right of entry to this country.”

Oh, boy. There are so many things wrong with this statement.

First, and perhaps most embarrassing, is that Kleindienst’s holding is not even about the rights of the alien denied entry. That’s right – FIRE claims that Kleindienst’s holding results from the fact that an alien does not have a right to enter the country when the actual holding was not even about the alien’s rights at all. It is difficult to describe how incompetent this is. Quoting Kleindienst (emphasis added):

We hold that, when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

The interests being analyzed in Kleindienst are those of US citizens who wanted to hear the alien speak. It has nothing to do with the rights of the alien. Why does the court mention the rights of the alien? As a baseline for the discussion. The Court is saying the alien has no right to enter, so we do not care at all about their rights. They then move on to analyzing the rights of the citizens who want to hear him speak.

This is not the only problem with their analysis. Even if we pretend that Kleindienst turns on the alien’s rights, FIRE has another serious problem. The Court has held repeatedly that resident aliens have no right to remain in the country. For example, See Harisiades, where the Court says residents are in the country at the “permission and tolerance” of the government. And the government can withdraw its “hospitality” at any time. If Kleindienst involved the removal of a green card holder, the analysis would literally not differ at all. Instead of saying “unadmitted and nonresident aliens have no constitutional right of entry to this country” it would say “resident aliens have no constitutional right to remain in this country”.

This is two amateur errors in the space of a single sentence. I think I should stop there. Suffice to say, the rest of their brief is equally bad. Just a bunch of cherry-picked quotes and no sight anywhere of the cases that are actually on point and matter.