President Donald Trump’s own sister once ruled that the 1952 law his administration is invoking to deport the pro-Palestinian activist Mahmoud Khalil violated the U.S. Constitution.
The law in question allows the government to deport any non-citizen whom the secretary of state believes “would have potentially serious adverse foreign policy consequences for the United States.”
The late Judge Maryanne Trump Barry held in 1996 that the provision violated the U.S. Constitution because it was too vague to provide any notice of what conduct it prohibited, according to The New York Times.
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It also delegated too much power to the secretary of state by granting him or her complete discretion, in violation of something called the “nondelegation doctrine,” reasoned Barry, who was caught on tape trashing her brother’s character during his first term in office.
Earlier this month, Immigration and Customs Enforcement officers arrested Khalil—a lawful permanent resident who was the public face of pro-Palestinian protests at Columbia University last spring—on the grounds he had allegedly engaged in “pro-terrorist” activity.
He is being held at an ICE center in Louisiana while his lawyers fight the government’s deportation order. The 30-year-old says he’s a political prisoner being held in violation of his right to free speech.
Meanwhile, White House press secretary Karoline Leavitt said in an interview that Khalil had been passing out Hamas flyers. His pregnant wife Noor Abdalla, who is an American citizen, said the accusation that he supported Hamas was “ridiculous” and “disgusting,” Al Jazeera reported.
Under the rarely used “deportable aliens” law used to justify his arrest, the government doesn’t have to bring any criminal charges or prove any wrongdoing, and it can deport any legal alien regardless of how long they’ve lived in the U.S., according to The New York Times.
In declaring the law unconstitutional, Barry wrote that, “All legal aliens, whether here for a day or 50 years and visiting or resident in this country, must live in fear of the secretary of state informing them, at any time, that our foreign policy requires their deportation to a particular country for reasons unknown to them and beyond their control.”
At the time, she was a federal trial court judge, meaning her decision wasn’t binding on other courts. The appellate court dismissed the case on procedural grounds and didn’t address the substance of Barry’s decision.
It remains, however, the most thorough judicial analysis of the law’s constitutionality, and other judges could find her reasoning persuasive, the Times said.
The oldest of the Trump siblings, Barry died in 2023 at age 86, after a lifetime of acting as both Trump’s protector and harsh critic, according to her obituary in The New York Times.
Former President Ronald Reagan had appointed her to the bench in 1983 for the District of New Jersey after Donald Trump’s fixer, Roy Cohn, encouraged Reagan to appoint more women. In 1999, former President Bill Clinton elevated her to the Third Circuit Court of Appeals, where she served until 2019.
She stepped down after The New York Times revealed she had masterminded dubious tax schemes to increase her and her siblings’—including Trump’s—inheritance.
In 2018 and 2019, her niece Mary L. Trump secretly recorded her calling Trump a liar with “no principles” and criticized his policy of separating migrant children from their parents.
“His goddamned tweet and the lying, oh, my God,” she said in one recording. “I’m talking too freely, but you know. The change of stories. The lack of preparation. The lying.”
“All he wants to do is appeal to his base. He has no principles. None,” she said at another point. “It’s the phoniness and this cruelty. Donald is cruel.” And, she said, “You can’t trust him.”
