Experts Link Harvard ICE Lawsuit to Recent SCOTUS Precedents on Procedural Issues


A lawsuit Harvard and MIT filed against the Department of Homeland Security and U.S. Immigration and Customs Enforcement on Wednesday is a major step into existing legal battles over immigration and executive action, experts say.

The suit is centered on the Administrative Procedure Act, a law specifying the process federal agencies must follow when they create and issue regulations that has been at the heart of two recent Supreme Court cases.

Its first and second counts allege that the new rules — which bar international students attending colleges and universities offering online-only courses from residing in the United States were “arbitrary and capricious” because they failed to “consider important aspects of the problem” and failed to “offer any reasoned basis that could justify the policy.”

City University of New York Law School Professor Natalie M. Gomez-Velez said legal precedent requires an agency to “examine relevant data” and “articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made” in order to prove it acted within reason.


Gomez-Velez said she believes that DHS and ICE failed to do so when it announced the policy.

“The pandemic is still going on, and we're actually at a really critical point. There doesn't seem to be any rationale for changing direction with respect to those temporary exemptions,” she said. “What's a reasonable explanation for doing this? I haven't heard one.”

The universities’ third count asserts that the directive violates the requirement to provide a notice and comment period prior to rulemaking.

Gomez-Velez said she agrees that the guidance also “directly violates” the APA’s notice and comment requirement — and though there are exceptions, such as emergencies or “good cause,” she said she thinks they do not apply.

University of Chicago Law School Professor Jennifer Nou wrote in an email that the lawsuit’s claims are the “bread-and-butter of APA-based lawsuits.”

However, Nou noted that a potential argument against the suit is that it was filed “too early,” since the guidelines issued on Monday were a “broadcast message” rather than a “final” agency action. The APA only applies to final actions.

“ICE will later publish a temporary final rule in the Federal Register, which will likely lay out the same policy,” Nou wrote. “It’s possible that the temporary final rule will contain more justification for the change than the broadcast message did; in that case, many of the current lawsuit’s arguments may have to be revised.”

Gomez-Velez agreed that DHS and ICE may question the validity of the suit based on the unofficial status of the guidelines, though she believes they should be subject to review.

“It looks like a final rule and it looks like the kind of rule that would be subject to judicial review,” she said, citing that it included “very specific dates and requirements for universities” and threatened students with removal from the country.

The case has been assigned to federal judge Allison D. Burroughs, who previously ruled on cases pertaining both to Harvard and to the Trump administration’s immigration policies.

In October 2019, Burroughs ruled in favor of Harvard in its ongoing affirmative action lawsuit against Students for Fair Admissions. Two years earlier, she ruled against President Donald Trump’s initial travel ban that barred citizens of predominantly Muslim countries from entering the United States.

The lawsuit — which has since expanded to include Northeastern University and attracted attention from universities across the nation — seeks a temporary restraining order and both a preliminary and permanent halt to the new policy.

According to the Federal Rules of Civil Procedure, a temporary restraining order may be issued without notice to ICE and is capped at 10 days, while a preliminary injunction requires notice and could last until the trial on the merits occurs.

The scope of the injunction, though, could also be in contention, creating an “uncertain situation” for the thousands of international students impacted.

“If they succeed in court in getting the preliminary injunction to stop the agency from doing this, a couple of other questions are around whether or not that injunction can be applied nationwide,” Gomez-Velez said. “If an injunction is issued by this court, whether there will be appeals, whether it goes all the way to the Supreme Court — what's the timeframe?”

In a 5-4 ruling last month, the Supreme Court blocked an attempt to end Deferred Action for Childhood Arrivals on the grounds that the Trump administration failed to provide adequate reason to end the program. And in a 5-4 ruling in June 2019, the Supreme Court ruled that the Department of Commerce could not add a question about citizenship to the 2020 Census, again because it failed to meet criteria for reasoned decision-making.

Challenges to agency actions alleging violations of the Administrative Procedure Act have become increasingly common in the Trump era, in part because of the administration’s penchant for rapid and drastic action.

“It is one of many Administrative Procedure Act cases precisely because this administration has been engaging in the agency actions that are that are an about-face, or that introduce policies without real explanation, that really have an impact on people in ways that they really have failed to explain, or aren't supported by the facts,” Gomez-Velez said.

One downside to cases based on violations of the APA, though, is that even if the court rules against an agency, it can alter its procedures and take the action again, Gomez-Velez said.

“The downside of it is, if there is a determination that is arbitrary and capricious for failure to explain, the agency always could go back and explain,” she said. “Or for failure to go through and comment rulemaking, the agency can go back and go through notice and comment, and then move forward with the policy anyway.”

In fact, Trump is expected to employ that strategy later this week with a second attempt to end DACA.

Even without immediate or satisfactory legal resolution, though, Nou wrote that there may be other reasons Harvard and MIT filed the suit.

“For starters, the lawsuit has a lot of expressive value and raises many points that the public may not have otherwise known; for example, the magnitude of the burdens placed on international students, the value that international students have in the academic community and at large,” Nou wrote. “All of these points may help sway the court of popular opinion, which could result in political blowback for the White House.”

—Staff writer Camille G. Caldera can be reached at Follow her on Twitter @camille_caldera.

—Staff writer Michelle G. Kurilla can be reached at Follow her on Twitter @MichelleKurilla.