Not So Fast, Kristi Noem

The government moved to revoke Harvard’s right to enroll international students, seeking to deal a fatal blow to the university. Harvard hit back today.

Images courtesy of AP and Reuters

It’s Friday, so once again we’re talking about how the Trump White House just attacked Harvard. As I reviewed the actions by the government and Harvard’s response, I realized this was a great opportunity for everyone to brush up on administrative and constitutional law. Exciting, right?

First, a simplified review of what happened. Harvard is locked in a battle with the White House for refusing the government’s demands to control the school’s administration, faculty hiring, student body composition and university curricula. The Trump administration has yanked research funding in an attempt to starve Harvard out and threatened its nonprofit status, and Harvard earlier responded with a federal lawsuit.

Fast forward to Thursday. Department of Homeland Security Secretary and cosplaying fascist gun freak and puppy killer Kristi Noem issued an order terminating the university’s Student and Exchange Visitor Program.

In practical terms, that would mean Harvard could no longer enroll international students, who comprise 27 percent of the student body. If left to stand, the order would devastate the school’s community, gut research teams, and send costs soaring for other students.

Harvard was ready. Earlier this morning, it filed a 72-page lawsuit in federal court to stop the termination of its program.

By now I hope we’ve all experienced enough with the Trump administration to quickly spot the glaring constitutional and legal infirmities of its action on Thursday. But let’s review them today, using the complaint by Harvard as a guide, because it’s likely to come up in the final exam.

Procedural due process violations

Let’s begin with a law we’ve all seen a lot of in the past months that no one outside of administrative law experts should ever have had to read or understand. It’s called the Administrative Procedures Act (APA), the big body of law that governs how federal agencies make and enforce rules and decisions.

It takes a certain kind of person and a lot of coffee to wade through it, but basically the APA requires that federal agency actions not be arbitrary or capricious, be made in accordance with law, and be supported by substantial evidence. An agency also can’t take punitive actions unless certain process requirements are met, including fair notice, an opportunity to respond, and consistent application of the rules.

That’s a long way of saying that government agencies are bound by procedural due process requirements, as guaranteed by the Fifth Amendment.

And guess what? To no one’s surprise, DHS didn’t follow the APA. Like, at all.

Not to get too in the weeds, but under the law (specifically, 8 C.F.R. § 214.4, see how fancy I sound?) if DHS wants to withdraw Harvard’s right to issue visas to international students, there’s a process in place for that. It issues a notice, the school has 30 days to respond, and then it provides a written decision that includes its reasoning. Then there’s a chance for an administrative appeal challenging the stated reasons.

That’s all pretty straight forward, but Secretary Noem followed none of that. She thinks her job is to dress the part and own the libs, not to actually follow laws and procedures. But now she’ll have to answer in court for why DHS skipped past all of this and went straight to revocation of Harvard’s certification to host and enroll international students.

This goes to the heart of what’s wrong here. Noem’s order was a textbook example of arbitrary and capricious action. It lacked any justification. And the White House made clear in public statements that the move was retaliatory in nature. After all, the administration just wants to stick it to the university. And while that might get MAGA all tingly, it’s not going to impress the federal courts.

Noem tried to create “filler” to back up her order by alleging Harvard failed to respond to document requests, but Harvard argues that the request (such as all documents relating to “dangerous or violent activity” by international students) exceeded what the government was permitted to request under its own rules. Harvard shouldn’t have to respond to requests that lie beyond the Department’s authority to make in the first place.

And even if the APA didn’t exist or apply—a big if—the conduct by the government would be a procedural due process violation of the U.S. Constitution, which under the Fifth Amendment prohibits the federal government from depriving the school of something of great value (here, its international student body) without due process of law.

Unlawful retaliation and unconstitutional viewpoint discrimination

DHS announced it took action because it disagrees with how Harvard runs its curricula and self-governs its campus. Let’s stop for a moment and consider how extraordinary and un-American that very idea is. The government is actively intruding upon the decision-making of a private educational institution and throwing its weight around to force conformity to its own agenda.

Sounds pretty communist to me. (Every accusation is a confession: This is an administration that urges anti-consumerism to protect the state, threatens price controls on private industry, and demands academic adherence to official propaganda.)

Let’s also recall what the government specifically demanded. It wanted the university to condemn particular ideologies; to audit and then restructure the administration, faculty and student body to promote “viewpoint diversity”; to disband certain student organizations; and to report or refuse admission to students with certain disfavored political views.

When Harvard refused these demands, the government cut off research funding, threatened revocation of its tax-exempt status, and then revoked its right to enroll international students.

Sounds like retaliation to me. And I bet a judge will think so too.

Under the First Amendment, the government cannot suppress academic speech, and it cannot favor one kind of speech over another, something called “viewpoint discrimination.” The Supreme Court has long disfavored content-based sanctions by the government in order to coerce or silence speech. But that is what we are seeing on full display in this case.

The bigger backdrop

The revocation of Harvard’s right to host and enroll international students is part of a full scale attack upon the international student community generally. We’ve seen graduate students, who are here legally, face arrest and deportation because of their political viewpoints. And we’ve seen student visas cancelled en masse, without the knowledge of the students affected, rendering them immediately deportable if detained.

That came to a screeching halt yesterday, at least for now. By no small coincidence, minutes after Noem’s order on Harvard issued, a federal judge in California issued an injunction blocking the revocation of the legal status of international students nationwide, including at Harvard.

U.S. District Court Judge Jeffrey S. White in Oakland not only blocked the termination of visas of international students, he enjoined the government from arresting or detaining any foreign-born students on the basis of their immigration status while the case moved forward.

Judge White showed he was on to the cat-and-mouse game played by the government before his court and elsewhere. “At each turn in this and similar litigation across the nation, Defendants have abruptly changed course to satisfy courts’ expressed concerns,” Judge White said in his 21-page order. “It is unclear how this game of whack-a-mole will end unless Defendants are enjoined from skirting their own mandatory regulations.”

It’s unclear what immediate effect, if any, Judge White’s ruling will have on the situation at Harvard. While the international students there cannot have their visas arbitrarily terminated, and also cannot be arrested, detained or deported, the question of whether they can continue to legally study and work at Harvard remains unclear.

For its part, Harvard seeks a preliminary and then a permanent injunction against the administration’s unlawful and unconstitutional actions. We’ll have to see how Noem and her department respond, but Harvard isn’t taking this lying down. And from what we’ve seen so far, the government has really shot itself in the foot already by going in guns blazing, as if its own rules, the law and the Constitution don’t matter.

My bet is that Secretary Noem is about to learn a lot about the APA and the First Amendment, to pair with the lesson in due process and habeas corpus she’s already being taught while trying to render migrant detainees to third countries. At this rate, with DHS now a defendant in several fast-moving suits with no less than three district courts investigating open defiance of their orders, Secretary Noem is in the running for first Trump Cabinet official to be hit with civil or even criminal contempt sanctions by a federal judge.

Hey, a guy can dream, right?