The Trump administration already faces strong legal challenges to its attempts to freeze billions in grants to Harvard University, one brought by the school itself and another by the Harvard chapter of the American Association of University Professors. Likewise, the president’s desire to revoke the school’s tax-exempt status has not gone anywhere so far. Seemingly undaunted — or just desperate — the Trump administration has now tried a new route to retaliate against America’s oldest university: deny thousands of international students the ability to attend. But like those other actions, this one is already rightly facing stiff resistance in the courts.
Before the ink was even dry on the order purporting to rescind the university’s ability to educate international students, U.S. District Judge Allison Burroughs in Massachusetts issued a temporary restraining order preventing the order from going into effect. While the constitutional issues implicated by the administration’s actions are important, and clear, this one may be resolved on less weighty issues, simply because the administration has not followed the law required to take the action it wishes to take.
Similar missteps took place under Trump’s first presidency.
As with another recent ruling, which prohibited the administration from going after the law firm Perkins Coie for activities the administration does not favor, the administration’s newest attack on Harvard is based on the university’s apparent “anti-American” values. As with two recent rulings, one which prohibited the administration from going after the law firm Perkins Coie, and another one issued Friday permanently enjoining the administration from punishing the law firm of Jenner & Block, the administration’s newest attack on Harvard is based on the university’s alleged “anti-American” values. Such actions, like the retribution against the firms, violate the First Amendment to the U.S. Constitution.
But Burroughs and other courts that might review this action don’t even have to get to the deeper constitutional issues. It is a principal of American jurisprudence that when a court can resolve a case without reaching constitutional questions, it should do so. And though the university’s constitutional claims are strong, courts will have ample grounds to avoid those questions here.
In fact, the effort by the Department of Homeland Security to punish Harvard in this way was so ham-handed that the purported rescission of the university’s ability to educate international students failed to follow the law and procedures required of the administration should it wish to take such action.
Such legal and procedural requirements are quite clear. For example, the administration must give the school notice of the ways in which the university is in apparent violation of the rules governing the international visa program, and it must have valid and not pretextual reasons for doing so. The university then has a chance to challenge those allegations through several levels of administrative review and likely in court should that administrative review result in a decision against the university.
The fact remains that the administration failed to follow the these legal and procedural protections governing the international student visa program. In addition, by terminating that program as it relates to Harvard with no process whatsoever, DHS Secretary Kristi Noem also violated the federal Administrative Procedure Act, a federal law that is designed to bring reasoned judgment and procedural regularity to federal agency action.
This procedural failure means that the weightier constitutional questions of whether the administration’s actions violate the university’s free speech or due process rights will likely be left to another day. Similar missteps took place under Trump’s first presidency. That administration’s attempts to rescind the Deferred Action for Childhood Arrivals program and to add a citizenship question to the U.S. census, among others, were both challenged successfully under the APA. That doesn’t mean the Trump administration can’t continue to tilt at windmills. Burroughs’ temporary restraining order against the administration’s policy was granted soon after Harvard filed its lawsuit seeking to halt it. The swift decision reflects the profound harm that this policy will cause to thousands of students and to Harvard’s educational and scientific mission. By granting it, it is also an implicit recognition that that the university is likely to succeed on the law of the underlying challenge. Here, Judge Burroughs will likely follow the path of Judges Beryl Howell and John Bates, who permanently enjoined the administration’s efforts to punish the law firm Perkins Coie and Jenner & Block, respectively, for speech and conduct that met with the president’s disapproval. Those rulings will likely echo in this decision as well, but not for the same reasons. Here, the failure of the administration to follow even the most basic of administrative steps required to take its desired action will likely doom the effort. That doesn’t mean the Trump administration can’t continue to tilt at windmills. But Harvard will still hold its constitutional-challenge cards in its hands. If it has to play them at some point, it will have a strong case on those grounds too.
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.” 
