Can Foreign Students' Visas be Revoked for Exercising Constitutional Rights?

I’m not an expert on immigration law, but it appears that US law prohibits entry for foreigners who support designated Foreign Terrorist Organizations, such as Hamas. This in turn leads to the question of whether foreign students who have already been admitted can have their visas revoked (or not renewed) for supporting Hamas while in the US, as the Trump administration has announced plans to do. This question was the subject of Eugene’s very interesting post yesterday about the ACLU’s letter on the matter.

One thing that occurred to me is that it’s clear that visas *can* be revoked for actions that involve the exercise of constitutional rights, for which Americans could not be punished. While the Supreme Court’s jurisprudence on economic rights is quite forgiving of government regulation, assumedly the Court would not permit the government to enforce a law prohibiting university students from working in any off-campus job without special authorization. And yet, the US government does enforce such a rule against foreign students, and also limits them to working on-campus twenty hours a week while school is in session. So while this in itself does not resolve the First Amendment issue regarding supporting Hamas, it does show that foreign visa holders can have their visa status revoked for engaging in activities for which Americans could not be punished.

As an aside, it’s worth noting that the ACLU’s letter attempts to obscure this distinction by referring to foreigners lawfully present in the US on students visas as “immigrant students.” They are not, in fact, “immigrants” are not here on immigrant visas, and while many (but hardly all) foreign students find a way to stay in the US, student visas are not intended to provide a means of permanent immigration to the US.

On another point, I disagree with Eugene (rare for me) that deporting Hamas supporters is bad policy “because chilling the speech of lawful visitors to the U.S. does interfere with the marketplace of ideas for Americans.” Foreign students are here as visitors to study, not to be members of the American polity. That doesn’t mean that we should prohibit them from expressing their opinions, but, e.g., holding protests in favor of an enemy country during wartime, or, more controversially perhaps, prohibiting foreign students from using their status as such to try to influence American public opinion on behalf of organizations that Congress has sanctioned as enemy terrorist organizations, strikes me as perfectly reasonable.

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