Small thoughts on Judge Farbiarz's big opinion in Khalil v. Trump
Two general points about law
Yesterday, in the U.S. District Court for the District of New Jersey, Judge Michael Farbiarz issued a long and thorough opinion in Khalil v. Trump. (A PDF of the opinion, which is 106 pages long in that form, is linked at the bottom of this post.) As you might remember, Mahmoud Khalil is a pro-Palestinian activist and a legal permanent resident in the United States. The Trump Administration has detained him and is trying to deport him on the ground that his protest activity at Columbia University was antisemitic, that it “fostered a hostile environment for Jewish students,” and that Khalil’s continued presence in the United States undermines the policy of the United States to combat antisemitism. Judge Farbiarz’s decision does not resolve the case: it holds, on a preliminary basis, that one aspect of the Trump Administration’s action against Khalil is likely unconstitutional and that another one has not yet been shown to be. So it directs the parties to provide more information.
This case is important for several reasons, some of them about the underlying merits issues (about things like free speech and the status of legal permanent residents) and some of them about enforcement procedures (like the government’s attempt in this case to deny Khalil any opportunity to challenge his detention in court through the artifice of whisking him from jurisdiction to jurisdiction, one step ahead of the lawyers). But this post is not about the parts of the case that make it distinctively important. It’s about two more general points that arise from yesterday’s opinion. The first is about statutory interpretation, and the second is about the practice of writing briefs.
I. On Statutory Interpretation
The ground on which Judge Farbiarz ruled preliminarily in favor of Khalil was a matter of vagueness: the statute that furnishes one of the two grounds under which the government is trying to deport Khalil, the district court held, is probably unconstitutionally vague in violation of the Due Process Clause.[1] The nice thought that Judge Farbiarz offers in the course of his vagueness analysis can be understood as a point about a distinction between originalism and textualism. The thought runs like this: even if a statute’s meaning for some legal purposes is the meaning it had at the time of enactment, the purposes of vagueness doctrine might require that it (also) be measured by its meaning at the time of the conduct alleged to violate the statute. Why? Because vagueness doctrine is, in substantial part, about notice to ordinary people, and we don’t expect ordinary people to know what words in a statute meant at some time in the past if the past meaning differs from the current meaning.
To be sure, the idea that the words of a statute provide notice to ordinary people is a fiction. Ordinary people don’t read statutes much. (In deference to this point, Judge Farbiarz quotes Justice Holmes’s observation that “It is not likely that a criminal will carefully consider the text of the law before he murders or steals.”) But the vagueness idea trades in that fiction—or at least in the idea that people likely to be affected by the law have, or can have, some sense of what it requires. Per Judge Farbiarz, the fiction that people not only know what the statutes say but know how they would have been read differently in the past might be one fiction too many.[2]
II. On Writing Briefs
The opinion also contains an object lesson in what not to do when writing briefs. It is a lesson about the dangers of quoting precedential cases selectively and misleadingly.
In its brief, the government quoted a twenty-one-word clause from the Supreme Court’s 1924 vagueness decision in Mahler v. Eby. Read in isolation, those twenty-one words seem supportive of the government’s argument that the law in Khalil’s case is not vague. But that twenty-one-word clause is part of a sentence, and that sentence follows another sentence, and when the two sentences are read in full, it’s clear that the clause the government quoted does not support the government’s argument.
Judge Farbiarz’s opinion called the government out on this feature of its brief.
It’s impossible to know (based on the papers alone) whether the government’s using the language from Mahler misleadingly was a matter of negligence or a deliberate attempt at deception. But neither answer is good.
The takeaway point, for practitioners and for law students: don’t do that. Really, don’t. Partly you shouldn’t do it just because it’s either negligent (which is bad) or deceitful (which is worse). But also you shouldn’t do it because a good judge will figure out that you did it, and then the judge knows not to trust your brief. To whatever extent the government’s attorneys in the Khalil case now find that they have forfeited the normal presumption in favor of the government’s trustworthiness, (whether called the presumption of regularity or by some other name,) they will be experiencing a problem that they have duly earned.
[1] Why? In essence, because the statute authorizes the Secretary of State to remove people whose presence might compromise the “foreign policy” interests of the United States, and the things that the government claims make Khalil deportable do not sound in foreign policy. Creating a hostile environment for Jews is bad, but doing it in New York City is a domestic matter, not a foreign-policy matter. Yes, one can situate it in a foreign-policy context, but if you read “foreign policy” in the statute broadly enough to take in things that happen entirely within the United States and that aren’t about direct dealings with foreign governments, then the “foreign policy” language in the statute isn’t really limiting, and then the statute is terribly vague.
[2] The word “might” in the previous sentence is used advisedly. Judge Farbiarz’s opinion doesn’t purport to resolve this question about statutory interpretation; it just brings the question to the surface before concluding that it need not be resolved in this case.
