The Situation: Keeping Foreigners Out by Way of Domestic Repression
Published by The Lawfare Institute
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The Situation on Monday asked whether “The Future of Violence” had finally arrived.
On Wednesday evening, the president opened up a new front in his war against Harvard University.
The president has been frustrated in his attacks on Harvard so far. His earlier effort to cut off the university’s grants has already produced a summary judgment motion. His subsequent effort to block its enrollment of foreign students produced an almost immediate temporary restraining order. So this week, the administration came at the problem of retaliating against one of America’s leading universities from a different angle. As he put it in Wednesday’s executive order, “The entry of any alien into the United States as a nonimmigrant to pursue a course of study at Harvard University ... or to participate in an exchange visitor program hosted by Harvard University ... is suspended and limited.”
Translation: If I can’t go after Harvard directly, I’ll prevent its students from entering the country.
The executive order cites three statutes in support of the president’s authority to ban people from entering the country in order to attend Harvard. Two of them clearly do no such thing. One of the statutes, 8 U.S.C. § 1185, makes it illegal to enter or depart the country except under rules prescribed by the executive branch—and makes it illegal to circumvent those rules by various means. Another, 3 U.S.C. § 301, allows the president to delegate functions.
The only law cited that plausibly authorizes Trump to ban would-be Harvard students from entering the United States is 8 U.S.C. § 1182(f), the provision that famously lay beneath President Trump’s first-term travel ban executive orders. That law reads in relevant part as follows:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
This language is broad. Very broad. It basically says that the president can prevent any group of aliens he wants from entering the country if he deems it in the national interest—and for however long he likes.
As the Supreme Court put it in the travel ban case:
By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”).
So it is certainly plausible that the administration could read the law as authorizing the president to define a class of nonimmigrants—people entering the country for purposes of enrolling at Harvard University—whose entry should be “suspended” until Harvard complies with the administration’s will.
Plausible? Yes. But I think such a reading would be both wrong and dangerous. The reason has several elements, which are worth disaggregating. The first is that unlike the travel ban—which was an attempt to exclude allegedly undesirable people from the country—the goal here is not to exclude the students. That is a means to an end. The end is retaliation against Harvard University for a series of wrongs the administration alleges in a string of ipse dixits.
The executive order is not subtle on this point. It accuses Harvard of several things:
- “Harvard University has refused the recent requests of the DHS for information about foreign students’ ‘known illegal activity,’ ‘known dangerous and violent activity,’ ‘known threats to other students or university personnel,’ ‘known deprivation of rights of other classmates or university personnel,’ and whether those activities ‘occurred on campus,’ and other related data.”
- “Harvard University has also developed extensive entanglements with foreign countries, including our adversaries.”
- “Finally, Harvard University continues to flout the civil rights of its students and faculty, triggering multiple Federal investigations.”
- “Harvard admits students from non-egalitarian nations, including nations that seek the destruction of the United States and its allies, or the extermination of entire peoples. It is not in the interest of the United States to further compound Harvard’s discrimination against non-preferred races, national origins, shared ancestries, or religions by further reducing opportunities for American students through excessive foreign student enrollment.”
The executive order explicitly describes the action it takes as a response to these problems, not in response to anything about the class of aliens themselves: “Considering these facts,” the executive order says, “I have 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.”
In other words, the question presented by this action is whether the administration can define a class of suspended entry by way of coercing a domestic institution to its will and punishing it unilaterally for not obeying its dictates.
A second factor here is that the statute has never been used this way. A useful Congressional Research Service report on past uses of 1812(f) identifies 90 invocations of the statute since the Reagan administration. These include invocations to suspend entry from particular countries or of specific groups of people from particular countries, migrants interdicted on the high seas, people who threaten peace processes or transitions to democracy in specified countries, people who benefit from certain corrupt practices, people who facilitated human trafficking or were subject to international travel bans, people who were involved in serious human rights violations or sanctions evasion, or people who might bring COVID into the United States.
Some of these invocations, particularly the travel bans, were ugly. But all of them, literally all, defined a class in terms of some feature of the alienage of the people whose entry the order suspended. People were restricted because of some aspect of their past (they committed gross human rights abuses or were picked up on the high seas during a massive migration to the United States) or their identities (they were in a specific country when a given disease was prevalent there) made their presence in the United States undesirable or dangerous.
In no case was the statute invoked to exclude foreigners by way of punishing a domestic group.
By contrast, this class is specifically identified by nothing other than the desire to punish an American institution that has fallen into disfavor with the administration. The exclusion of the individuals who wish to enter the United States is purely a byproduct of the vendetta against Harvard. The evidence of that is simple: All the students have to do to enter the country, assuming they are otherwise admissible, is enroll at a different institution, meaning that the policy is not about them as individuals. They are merely a weapon—and collateral damage. The invocation of 1812(f) here thus oddly implicates the First Amendment and due process rights of Harvard as much as it does the rights of the students who are being excluded from the country.
To allow 1812(f) to be invoked in this fashion, for all the breadth of its language—which is real and which we shouldn’t underestimate—thus allows it to be turned into an instrument of domestic coercion and retribution.
Consider a few hypothetical examples if this invocation passes muster:
- Elon Musk and President Trump don’t seem to be getting along very well right now. Could the president use 1812(f) to suspend entry of any H-1B visa holders intending to work for Tesla or SpaceX?
- Could President Trump use 1812(f) to suspend entry to any visa holders of any kind who don’t promise at a port of entry to attend MAGA rallies or whom any CBP officer finds, for whatever reason, are likely to attend political protests directed against the administration?
- What about press organizations? Or the law firms Trump has already sanctioned? Could President Trump suspend the entry of people intending to work for such disfavored groups? What about people who merely read what he terms the “fake news”?
The point here is that once the courts accept that 1812(f) allows the president to define a class of aliens by the lawful activity they intend to engage in within the United States—rather than by some organic feature of their alienage itself—the capacity to end-run the First Amendment is extraordinary.
This statute is a dangerous instrument. It is a hopelessly broad delegation of congressional power to the president. It has virtually no checks. Trump in his first term highlighted its capacity for misuse. He did so again Wednesday in a separate action reinstating a version of his travel ban. A reasonable Congress, jealous of its own power, would reconsider, narrow, or repeal it.
But given that we’re stuck with it for now, it is essential that the courts acknowledge that the First Amendment limits its reach—and not let Trump leverage this power to prevent entry of students, immigrants, or visitors against domestic institutions. I assume that Harvard will sue, making this precise point. I assume also that Harvard will prevail, at least in getting this measure stopped.
It seems to me critical, however, that people not understand it merely as part of Trump’s war on foreigners, but as part of his effort to make life hell for domestic institutions that don’t bend to his will.
The Situation continues tomorrow.
