Judge Young Calls BS On Trump As SCOTUS Skulks In Shadows

The old bulls will not go quietly.

On Tuesday, a federal judge in Massachusetts blasted the Trump administration’s wholesale assault on the First Amendment. Specifically, the court affirmed the longstanding principle that non-Americans have the same freedom to speak as US citizens, and so it is illegal to deport foreign students for expressing pro-Palestinian sympathies. But the court’s order was much more than that.

Judge William Young, an 85-year-old Reagan appointee, grappled with our survival as a nation of laws when the leader we have chosen is fundamentally lawless. His order is framed as an answer to a question posed by a anonymous postcard reading “Trump has pardons and tanks … what do you have?”

Perhaps the sender intended this to be menacing. Why bother with the law when the executive takes a Sharpie to criminal convictions and promises to deploy the military against civilians? What good is the judiciary?

But Judge Young treated it as an honest query. In fact, it’s a question confronting everyone in the legal profession today.

“Dear Mr. or Ms. Anonymous,” he begins. “Alone, I have nothing but my sense of duty. Together, we the People of the United States – you and me – have our magnificent Constitution. Here’s how that works out in a specific case.”

The First Amendment is for all of us

The case, captioned American Association of University Professors v. Rubio, involves two executive orders (EOs) purporting to fight the scourge of antisemitism.

In EO 14161, entitled “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats,” President Trump declared that “[i]t is the policy of the United States to protect its citizens from aliens who intend to commit terrorist attacks, threaten our national security, espouse hateful ideology, or otherwise exploit the immigration laws for malevolent purposes.” He added that that “the United States must ensure that admitted aliens and aliens otherwise already present in the United States do not bear hostile attitudes toward its citizens, culture, government, institutions, or founding principles, and do not advocate for, aid, or support designated foreign terrorists and other threats to our national security.”

In EO 14188 — 14/88? AYFKMRN? — entitled “Additional Measures To Combat AntiSemitism,” along with the accompanying fact sheet, Trump instructed his cabinet to “investigate and punish anti-Jewish racism in leftist, anti-American colleges and universities.”

Hateful ideology, including antisemitism, is obviously “hateful” — it’s right there in the name! But it’s not illegal. Indeed, the First Amendment protects the right of every American to say and think truly horrible things. And, despite the vigorous protests of the Trump administration, that goes for non-citizens present in the United States as well.

As Judge Young observed:

This case -– perhaps the most important ever to fall within the jurisdiction of this district court –- squarely presents the issue whether non-citizens lawfully present here in United States actually have the same free speech rights as the rest of us. The Court answers this Constitutional question unequivocally “yes, they do.” “No law” means “no law.” The First Amendment does not draw President Trump’s invidious distinction and it is not to be found in our history or jurisprudence. See No one’s freedom of speech is unlimited, of course, but these limits are the same for both citizens and non-citizens alike.

It is illegal for the government to deport foreign students simply for protesting Israel’s attacks on Gaza or voicing pro-Palestinian sentiments — something the Department of Homeland Security and the State Department have been doing A LOT, and with much fanfare.

We have all seen the horrifying video of Tufts student Rumeysa Ozturk being arrested after publishing an opinion piece urging her university to divest from companies with ties to Israel.

Secretary of Homeland Security Kristi Noem is simply a thug in lipstick, happy to call this tiny woman a terrorist and bray for her deportation. But Secretary of State Marco Rubio, an actual lawyer, understands that he has to at least pretend to be acting pursuant to law.

First, Rubio claims that he’s not retaliating against these foreign students’ speech, but is actually revoking student visas fraudulently obtained:

If you tell us when you apply, “Hi, I’m trying to get into the United States on a student visa, I am a big supporter of Hamas, a murderous, barbaric group that kidnaps children, that rapes teenage girls, that takes hostages, that allows them to die in captivity, that returns more bodies than live hostages” -– if you tell us that you are in favor of a group like this, and if you tell us when you apply for your visa, “And by the way, I intend to come to your country as a student and rile up all kinds of anti-Jewish student, anti-Semitic activities, I intend to shut down your universities” –- if you told us all these things when you applied for a visa, we would deny your visa. I hope we would. If you actually end up doing that once you’re in this country on such a visa, we will revoke it. And if you end up having a green card –- not citizenship but a green card –- as a result of that visa while you’re here and those activities, we’re going to kick you out. It’s as simple as that.

Second, Rubio asserts sweeping powers under the Immigration Nationality Act (8 USC 1227(a)(4)(C)) to deport students upon his unilateral determination that their presence “would have potentially serious adverse foreign policy consequences for the United States.” That’s the authority he cited to arrest Mahmoud Khalil, who led a protest at Columbia University, and Yunseo Chung, who participated in a protest at Barnard College.

Judge Young rubbished both these wheezes. The government cannot legalize viewpoint discrimination by rebranding it as foreign policy. And that is particularly true when, as here, there is ample evidence that the crackdown was designed, not to effect diplomatic goals, but to chill domestic speech:

It was never the Secretaries’ immediate intention to deport all pro-Palestinian non-citizens for that obvious First Amendment violation, that could have raised a major outcry. Rather, the intent of the Secretaries was more invidious -- to target a few for speaking out and then use the full rigor of the Immigration and Nationality Act (in ways it had never been used before) to have them publicly deported with the goal of tamping down pro-Palestinian student protests and terrorizing similarly situated non-citizen (and other) pro-Palestinians into silence because their views were unwelcome.

The judge was particularly incensed at the suggestion that ICE agents go masked out of fear of being doxxed, calling that testimony “disingenuous, squalid and dishonorable.”

“ICE goes masked for a single reason -- to terrorize Americans into quiescence,” he fumed, adding “To us, masks are associated with cowardly desperados and the despised Ku Klux Klan. In all our history we have never tolerated an armed masked secret police. Carrying on in this fashion, ICE brings indelible obloquy to this administration and everyone who works in it.”

Judge Young reserved the question of remedy, instead laying out with brutal clarity the difficulty of trying to do law today: “The reason is the rapidly changing nature of the Executive Branch under Article II of our Constitution and, while he is properly not now a defendant in these proceedings, the nature of our President himself.”

Presumption of irregularity

It is not normal for a federal judge to explain that the president is warping the law. And yet, nothing in this moment is normal.

“The Constitution, our civil laws, regulations, mores, customs, practices, courtesies -- all of it; the President simply ignores it all when he takes it into his head to act,” Judge Young writes incredulously.

How can courts restrain a president whose “palpable misunderstanding that the government simply cannot seek retribution for speech he disdains poses a great threat to Americans’ freedom of speech?” Especially when he enjoys “broad immunity from any personal liability, Trump v. United States, 144 S.Ct. 2312 (2024), [and] is prepared to deploy deploy all the resources of the nation against obstruction. Daunting prospect, isn’t it?”

Yes, it is.

The judge concedes there are no easy answers: “I fear President Trump believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional values so long as they are lulled into thinking their own personal interests are not affected.”

It’s sad but inspiring reading from one of the “old bulls” of the judiciary. These octogenarian jurists, nominated decades ago by Republican presidents, have steadily pushed back against the Trump administration’s lawlessness. With their conservative bona fides, they are in a unique position to point out that opposition to Trump is patriotic, not partisan. If you believe that American ideals are worth fighting for, then now is the time to fight.

The order ends with a message to the anonymous sender.

“I hope you found this helpful. Thanks for writing. It shows you care. You should.”