Court Slaps Down Yet Another Trump Attack On Harvard

On May 23, US District Judge Allison Burroughs granted a temporary restraining order barring the Trump administration from kicking Harvard University out of the Student and Exchange Visitor Program (SEVP) that allows it to sponsor foreign student visas. The government wasn’t subtle about kneecapping the school as punishment for First Amendment protected activity, and even explicitly tied the decision to the school’s failure to ensure “viewpoint diversity” on campus. At a hearing on May 29, the judge made clear that she was going to issue a permanent injunction irrespective DHS’s efforts to retcon a paper trail to justify its arbitrary decision to kick Harvard out of the program.

But when God closes a door, she opens a window. And the president is pretty sure he is a walking deity, so he devised a scheme to vandalize the nation’s oldest university another way.

On June 4, he issued a proclamation purporting to “enhance national security” by “addressing risks at Harvard University.” Citing exactly the same list of sins used to justify the now-enjoined ejection from SEVP, the president “determined that it is necessary to restrict the entry of foreign nationals who seek to enter the United States solely or principally to participate in a course of study at Harvard University or in an exchange visitor program hosted by Harvard University.”

The proclamation purported to rest on the president’s authority under §§ 212(f) and 215(a) of the Immigration and Nationality Act (INA), along with 8 U.S.C. 1182(f) and 1185(a), which “authorize the President to suspend entry of any class of aliens whose entry would be detrimental to the interests of the United States.” So, instead of forcing Harvard to shut its doors to foreign students, Trump is instead slamming the doors to the entire United States to the “class” of foreign students headed for the school.

The next day, the school filed an amended complaint and a motion for yet another TRO asking Judge Burroughs to enjoin the proclamation. As they point out, the supposed “class” of dangerous foreigners is only a national security threat insofar as they intend to matriculate in Cambridge, Massachusetts. They are apparently harmless at any other school in the country.

The statute gives the President authority to protect the nation from a class of aliens whose entry would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). But the President is not suspending entry for any class of aliens. To the contrary, all of those aliens may enter the Country unabated, just as long as they go to any school but Harvard. The President’s actions thus are not to protect the “interests of the United States,” but instead to provide another means for the Administration to retaliate against Harvard for the exercise of its constitutional rights.

The amended complaint also added a whole bunch of new evidence that the Trump administration is acting to suppress and retaliate against Harvard’s First Amendment protected speech. Politico reports that dozens of high-level executive branch officials met to “brainstorm” ways to attack the school, after which Secretary of State Marco Rubio announced a “pilot” program for “enhanced vetting” of visa applicants which just so happened to involve one and only one school. As usual, President Trump made sure to announce his animus.

And it worked. Within hours “the absolute best Judge (for them!)” issued another TRO blocking implementation of the proclamation and setting a hearing for June 16. Who “will, in the end, WIN!” remains up in the air.

Harvard v. DHS [Docket via Court Listener]

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast).

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