Harvard And MIT Will Win: ICE Articulated No Rationale For Its “Student Visa” About Face.

Once again, Trump is using immigration law (this time, with student visas) as a wedge-issue. And once again, he lacks the authority to do what he intends to do. Stephen Miller f-ed up the paperwork, again.

Harvard and MIT filed suit overnight, seeking a TRO that would in effect rule Trump has articulated no rationale — and what his team has said. . . constantly contradicts the small statement Trump made, on the record, to support such a wildly injurious departure from long established ICE assurances — at the very last minute of his presidency — all for political theater points. Here’s some of the finely argued memo of law, and a bit — from what was filed, in Boston, overnight:

. . . .[T]he July 6 Directive is arbitrary and capricious because it does not articulate any rationale that would justify ICE’s decision. It is “a fundamental requirement of administrative law … that an agency set forth its reasons for decision; an agency’s failure to do so constitutes arbitrary and capricious agency action.” Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014). “[C]onclusory statements will not do; an agency’s statement must be one of reasoning.” Id. (internal quotation marks omitted); see also Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2569 (2019) (an agency must “articulate[] a satisfactory explanation for [its] decision”). Here, the Directive sets forth no reasoning sufficient to justify the agency’s dramatic change of policy. The sole strand of reasoning articulated in the Directive appears to be that, although some “accommodations” with respect to visas may be required “to provide flexibility to schools and. . . students,” there is now a “concordant need to resume the carefully balanced protections implemented by federal regulations. . . .”

Such ipse dixit is insufficient to justify a policy change of such magnitude. For one, to the extent the Directive’s reasoning is taken at face value, the justification it offers fails at the threshold. To the extent the premise of the Directive’s reasoning is that the public-health conditions that justified the issuance of the COVID-19 exemption in March 2020 have abated, that premise is mistaken. The national emergency the President declared on March 13, 2020, is still in effect. The number of COVID-19 cases in the United States passed three million this week, and the number of daily new cases (currently roughly 50,000) is double what it was only one month ago.

To the extent the agency’s decision here rested on its public-health judgment, basic principles of administrative law required it to “examine[] ‘the relevant data’” — including the fact that the rate of viral spread in the United States is increasing, not decreasing—and to “articulate[] ‘a satisfactory explanation’ for [its] decision, ‘including a rational connection between the facts found and the choice made.’” Dep’t of Commerce, 139 S. Ct. at 2569 (quoting State Farm, 463 U.S. at 43). In stark contrast to the planning decisions made by Plaintiffs after months of consultation, deliberation, and recourse to expertise, the Directive’s conclusory statement bears no resemblance to such a reasoned decision. . . .

A high-level agency official has openly acknowledged, in fact, that the real basis for the change was not any conclusion that the public-health emergency had eased, but rather that the Administration has decided to use students’ visas as a cudgel to coerce universities into resuming in-person classes — contrary to universities’ judgments made to protect the health and safety of their communities. Just last night, Acting Deputy Secretary of Homeland Security Ken Cuccinelli stated that the purpose of the agency’s change in policy was to “encourage schools to reopen. . . .”

Now you know. Looking forward to Trump’s financial papers tomorrow. Grin.

नमस्ते

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