Elise Amendola/AP Photo
The gates of Harvard University
Late Tuesday afternoon, the government settled with Harvard and MIT, agreeing to rescind new guidance issued July 6 by the Department of Homeland Security and U.S. Immigration and Customs Enforcement that would have banned international students whose universities were online-only from remaining in the U.S. The government will instead revert back to its earlier guidance issued in March, which had been revised to fit the needs of universities and colleges facing a pandemic.
On Tuesday morning, student governments from 16 universities filed an amicus brief in support of the Harvard-MIT lawsuit. “I’m genuinely delighted at the government’s declaration to rescind this directive,” wrote amicus organizer Benjamin Bret Lane, in an email to the Prospect. “This is the best we could have hoped for today, even though it’s unclear what form of this policy will come out next. As evident by the lack of argument from the government today, I think it was clear to all parties involved that the directive had no substantive ground to stand on.”
The reprieve comes as a relief to foreign students, many of whom would have been forced to return to often dangerous or impractical environments to study. This loss of intellectual talent for U.S. universities would have had a serious effect, and could still, if foreign students believe their visas can be revoked arbitrarily. Nonetheless, experts say that the government could still try again.
Two floor amendments to the National Defense Authorization Act, must-pass legislation that often includes unrelated riders, had been proposed to block DHS from implementing the directives, one from Rep. Ayanna Pressley (D-MA) and one from Reps. Seth Moulton (D-MA), Steve Stivers (R-OH), and Brian Fitzpatrick (R-PA).
Harvard and MIT had sued the administration over the new rules, arguing that they were “arbitrary and capricious” and violated the Administrative Procedure Act, which requires a public notice and a public comment period. More than 200 schools backed the case. The government had recently lost its bid to end the Deferred Action for Childhood Arrivals (DACA) program in a high-profile Supreme Court case over the same issue.
Bijal Shah, a law professor at Arizona State University who specializes in administrative law, suggested that the administration may have perhaps learned its lesson from DACA when it agreed to rescind the guidelines today.
“Courts are somewhat flexible on this but only to a certain point,” Shah said. “Even if [the government is] acting at the behest of the president, then they are required to justify their actions to some minimal amount.”
She added that this administration’s particular sloppiness when it comes to administrative procedure has forced courts to take what’s known as a “hard look” at cases. The “arbitrary and capricious” standard is relatively minimal, but under “hard look,” courts more closely examine what agencies are doing, because such agencies have “shown themselves as making poor choices or sort of misbehaving.” The fact that courts are doing this at all, she says, is more evidence of the administration’s sloppiness.
In 1983, during the Reagan administration, the Supreme Court ruled against the government in Motor Vehicle Manufacturers Association v. State Farm over an administrative procedure issue regarding airbags. Shah explained that the ruling not only paved the way for “hard-look review” of agency actions by courts, but it also was indicative of the Reagan administration’s similarly sloppy approach to administrative law. In terms of administrative actions and the type of people he appointed, Shah says Donald Trump is a bit like Ronald Reagan.
Trump’s anti-immigrant attacks—on asylum, DACA recipients, and international students—have all quietly intensified during the pandemic, with the government taking advantage of the distraction. “People won’t be paying as much attention because we have a lot more going on,” Shah said of this strategy. “Maybe he’s hoping that that approach will work with the court.” But Shah doesn’t think it will work.
“They’re still paying attention to process and the application of the APA,” she said. “If you’re finding that [Chief Justice John] Roberts is catching you on an APA issue, then you’re really not getting the APA.”
