The buck stops with AG for the procedural requirements, but you can certainly sue the AG after the decision has been made in (regular) court. For many of those classes the burden of proof is low if AG wants to deport them. Basically if Sec of State deems a non-citizen as bad for foreign policy, that'd be sufficient for removal. To me this sounds like a feature not a bug, for the executive branch at the Secretary level to be able to exclude a non-citizen persona non grata from the privilege of staying in the US.
Also precedent exists (Harisiades v. Shaughnessy) that suggests deportation does not violate the First Amendment in these cases.
I think you’re more or less right on the law, but I do think it is sad that activity that would likely be non-punishable as applied to citizens can get you ejected from the country if you’re a non-citizen. There’s not much principle there.
Also there’s a bit of a wrinkle in the Harisiades case: first, it was written at the height of the Red Scare, and likely wouldn’t have concluded the same way had it been adjudicated after that ended and the Warren court era began. Second, the Court had to find that the Communist Party advocated for violent overthrow of the country in order to hold their membership as not protected by the First Amendment. Had it not done so, the court might have found that their activity was protected.
I guess whether it is sad (chilling effect) or exciting (prevents abuse of paradox of tolerance) depends on your perspective on the particular issue, but the principle here is a non-citizen is a non-citizen. They should not get other ideas. There are many legal activities that non-citizens cannot do: namely they cannot engage in work without authorization, for example. LPRs are given more leeway but those are all within the realm of INA itself not constitutionally protected. What INA giveth INA taketh away.
I understand. My point is that, if one of our founding principles is that government overreach should be defended against and thus constrained--a principle that guides our Constitution and is enshrined in the Bill of Rights--it really shouldn't matter whom it's protecting. Fenceposts don't move when a horse tries to get through instead of a cow.
To be fair, the Court did not hold that aliens aren't protected by the Constitution. It avoided the question by holding that the aliens' activities weren't protected, and that Fifth Amendment protections are different (and less stringent) for civil process than for criminal process.
I think the alien is still protected under First Amendment in the sense that you cannot criminally charge him of a crime. It simply has a consequence as outlined in the context of INA, losing a benefit that is obviously not applicable to the US Citizens in the first place, just like a US Citizen could lose a public job (Garcetti v. Ceballos).
Also precedent exists (Harisiades v. Shaughnessy) that suggests deportation does not violate the First Amendment in these cases.