Friday in San Jose, U.S. District Judge Noël Wise did what courts are supposed to do when the executive forgets what country it is running. She read the First Amendment. She read the Fifth. She struck down the relevant provisions of the federal deportation apparatus that target noncitizens for the speech they have offered about the war in Gaza, and she did not soften the language. The freedoms of speech and of the press, she wrote, are foundational to America’s enduring democracy. Amen, judge.
I want to be careful about what I do next. The temptation is to spend the column celebrating the ruling and the lawyers and the Stanford Daily, which was the plaintiff, and to leave it there. That would be a kind of column. It is not this column. There are persons on the other side of the political fault line I just named, and they are persons, and I owe them the same seriousness I owe the deportees.
But first, what the court saw.
The administration’s stated rationale for the removals is that they are going after noncitizens who “disrupted college campuses while expressing their views.” Read that again. Slowly. The administration is deporting people because of the views they expressed. The fact that the views were expressed on a campus, the fact that they were expressed in ways some students found disruptive — these are not what made the deportation possible. What made the deportation possible is that the views were views the administration did not want expressed. The administration’s defenders will say this is about immigration enforcement, not speech. They will say the deportations were directed at people who broke rules. They will not say which rules, because the rules they cite are the speech itself. This is not enforcement. This is viewpoint discrimination wearing a uniform.
This is not the first time the courts have slapped this down. Nearly a year ago, a federal judge in Boston ruled that the administration had violated the Constitution by targeting noncitizens solely because they supported Palestinians or criticized Israel. The administration ignored the Boston ruling. It kept deporting. It kept threatening. Now Judge Wise has told the administration again: the First Amendment does not come with a citizenship filter. The right to dissent in this country is not priced in visa status.
I want to stay with what it has felt like to be the kind of person this regime was designed to silence. The international students at Stanford and elsewhere who spent the last year declining to sign petitions, skipping teach-ins, asking whether a social-media post might get them put on a flight. I have known that arithmetic. Not the exact same arithmetic — mine was the arithmetic of being a brown kid in an El Paso classroom watching classmates disappear after pre-dawn raids and the school day go on as if the empty desks were ordinary — but the same operation. The arithmetic of measuring what you are willing to say against what it might cost you. The arithmetic the powerful prefer you to do, because if you do it for them, they don’t have to send anyone to make you stop.
The Torah commands love of the stranger thirty-six times. More often than any other commandment. “You shall not wrong or oppress a resident alien, for you were aliens in the land of Egypt” — that is from Exodus, and the mechanism it names is older than the United States. The memory of having been the stranger is the precondition of welcoming the stranger. Every American family has its own Egypt somewhere in its past. The Catholic tradition I was raised in names this same operation in different words. Pacem in Terris, John XXIII’s 1963 encyclical, puts it directly: every human being has the right to emigrate and to take up residence where the conditions of his life require it; the fact that he is a citizen of a particular State does not deprive him of membership in the human family. The deportees the administration has been removing for their speech are members of the human family. The administration treated them as members of a more exclusive club — the club of people whose speech the executive finds acceptable. They are not members of that club. Neither, in this country, are the rest of us.
There is more to name here, and I want to name it carefully. The disruption on the campuses the past two years was real. Students who felt unsafe in their own classrooms — Jewish students in particular — were not making it up. Professors whose classes were interrupted were not making it up. Universities that allowed the disruption to metastasize for weeks at a time have a great deal to answer for. I want to say one thing about my own side of this, because I have watched too many of my co-religionists treat speaking for the deportees as the whole of the moral task and forget the disruption was real and the Jewish students are persons too. The same Catholic hierarchy that resisted Trump on the Lampedusa question has, in other decades and other countries, looked the other way while regimes removed people for what they said. The Catholic Worker house down the road from where I live once turned away a guest who needed a bed, and the story of that night is told in the parish the same way the prophets are read — not as triumph, but as the wrong we measure ourselves against. If my column were only as fierce as I can be about the administration’s harm and never about my own community’s, I would be the kind of prophet the scripture calls a fool.
The administration’s framing of the disruption as the justification for the removals is doing something specific: it is conflating two separate questions so that the answer to one licenses the answer to the other. The question of whether the disruption was wrong is one question. The question of whether the federal government may deport noncitizens for the political content of their speech is another question. The first question does not answer the second. To let it answer the second is to give the executive a deportation power no American constitution has ever granted it. That distinction matters to the Jewish students who felt unsafe on their own campus. They were owed protection by their university. They were not owed, and they do not want, a deportation regime aimed at people whose political views they may even share some of. The students whose classes were disrupted were owed an end to the disruption. They were not owed, and they do not want, the construction of a constitutional regime under which the government removes people from the country for what they said. These are different goods owed to different persons by different institutions. The administration’s project conflates them. Judge Wise’s ruling does not have to.
The same week Judge Wise ruled, an arbitrator ordered San José State University to reinstate a professor fired over a Gaza protest, signaling to every administrator considering discipline for protest-related conduct that the process will be reversed. The administration has meanwhile been asking the Supreme Court to back its no-bond detention policy, only to be met by judges who insist on procedural protections that treat immigration detention like a criminal sentence. Each of these decisions narrows the space in which universities and the federal government can respond to disruption by deploying the heaviest tools available. Each of them is a small refusal of the conflation the administration needs to keep working.
The administration is using deportation to silence political speech. A federal judge just said the Constitution will not allow it. The judge is right. The students who were afraid to speak were right to be afraid. The students who felt unsafe in their classrooms were right to feel unsafe. These are two truths that this political moment has trained us to treat as opposites. They are not opposites. The administration wants them to be opposites, because the conflation gives it a power no administration in this country’s history has ever been granted. The court has now told the administration twice — once in Boston, once in San Jose — that the power will not be granted.
What I want to say to the officials making these decisions, in second person, because you are a person and the door of return is open to you: you know what you are doing. You know the rationale you are citing is a description of speech the government disliked, dressed up in the language of campus order. You have heard the judges tell you what the Constitution says. You have chosen the project over the Constitution. The Constitution is older than your project. It will outlast your project. The students you are deporting are persons. The students you are claiming to protect are persons. You will be held, in time, to the standard you have set yourself by the language you have used.
The door is open. Come back through it.