Harvard fights DHS attempt to restore foreign student ban

The Trump administration claimed the sanction was punishment for Harvard leadership failing to crack down on pro-Palestinian protests and for failing to provide foreign student visa data that the university says it wasn't required to maintain.(CN) — The Trump administration on Tuesday sought to reinstate its short-lived ban on Harvard University’s international student program, arguing that the president has broad authority to limit entry to the U.S. even if the ban is aimed at an American institution.Representing Harvard before a First Circuit panel Tuesday, attorney Paul Clement of Clement & Murphy argued that the Trump administration had improperly used power meant to govern international affairs to target a domestic entity.“You don’t have to go further than the title of this proclamation: The title of this proclamation is ‘Addressing Risks at Harvard,’” he said.Clement, who served as U.S. solicitor general from 2005 to 2008, underscored that the ban — which Harvard called part of a retaliation campaign after it rejected the government’s demands “to control Harvard’s governance, curriculum, and the ‘ideology’ of its faculty and students” — was unprecedented.“If you allow the government to jump the tracks between this externally facing power, which, as one expects with externally facing powers, is subject to deferential review, and use it to single out a domestic institution, that is a grave, grave problem,” Clement said.Just a day after the Department of Homeland Security revoked Harvard’s ability to enroll international students, U.S. District Judge Allison Burroughs blocked the measure.Then-Homeland Security Secretary Kristi Noem claimed that the sanction was punishment for Harvard leadership failing to crack down on pro-Palestinian protests and for failing to provide foreign student visa data that the university says it wasn’t required to maintain. The department had asked for information about foreign students’ participation in misconduct that could lead to their deportation — specifically, their involvement in campus protests.Arguing on behalf of DHS, attorney Tiberius Davis told the three-judge panel that because the ban involves entry to the U.S., President Donald Trump was within his authority, that the proclamation is facially neutral and that Burroughs applied the wrong test.Davis said it doesn’t make sense that a DHS statute could restrict the president’s power to regulate immigration.U.S. Circuit Judge O. Rogeriee Thompson, a Barack Obama appointee, said the rule isn’t targeting immigrants, but is targeting Harvard.“This isn’t an entry bar. It’s a bar to go to Harvard,” Thompson said.Davis pushed back: “It is an entry bar because these aliens cannot enter on an F or J visa that’s sponsored by Harvard.”While Davis said he couldn’t speak for the president, but it’s possible Trump will implement a similar measure, and hasn’t attempted to implement one in the meantime because of the injunction.And although both attorneys arguing said it wasn’t a matter they planned to fight vigorously, the judges pressed on mootness for a substantial portion of the hour-and-a-half-long hearing.Both Davis and Clement agreed, and argued at length before a persistent panel, that the case is not moot.“There’s nothing to enjoin anymore because it’s expired,” Thompson said. “What relief are we granting you when the … proclamation is dead?”“Well, I think it’s as simple as this,” Clement said. “If you affirm this injunction, there’s never going to be another proclamation directed to Harvard on this.”Joining Thompson were U.S. Circuit Judges Gustavo Gelpí, a Joe Biden appointee, and Joshua Dunlap, a Donald Trump appointee.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads