Warning – Long thread ahead - Harvard/MIT have just responded to the government’s reply from yesterday. The following thread summarizes the response. At 3 ET today, there will be a hearing on Harvard’s request for a temporary restraining order. 1

The opening line says it all “The government’s opposition does not engage with Plaintiffs’ primary arguments or authorities and, indeed, relies on propositions that the Supreme Court has repeatedly rejected.” 2

In making a decision of this magnitude, an agency must consider both the costs & benefits of the chosen policy. When an agency changes its mind like here, it must explain why it is doing so & why reliance on the prior policy doesn’t warrant staying the course. ICE did neither. 3

Regarding irreparable injury, the 7/6 directive is already causing harm. Students are already being turned away at airports and consulates globally. 4

Because Harvard/MIT are likely to win, because they and their students will be irreparably harmed and because remaining factors favor relief, a preliminary injunction should issue. 5

Arguments - Harvard/MIT are likely to succeed on merits – A. Directive is Arbitrary & Capricious – ICE failed to consider advantages AND disadvantages or its decisions. It also failed to justify its change of position in light of broad reliance on the prior pronouncement. 6

The DACA decision from the Supreme Court last month is key in this case. The Supremes ruled against DHS because it failed to consider the reliance interests of the program’s beneficiaries. DHS didn’t even bother to try to distinguish that case. 7

ICE said it considered 2 factors –the situation was “fluid” & stakeholders needed guidance. But this doesn’t explain at all why the agency did a complete about face. If anything this should have led to being even more flexible. ICE didn’t explain anything and STILL hasn’t. 8

Harvard now is citing the student declarations submitted yesterday. Inadequate Internet, no access to research materials, dangerous home country conditions, liability for rent on broken leases, risk of international flights. 9

Harms to schools cited – months of planning/prep based on ICE’s assurances up in smoke. Rapid emptying of campuses is very disruptive versus gradual repopulating. 10

Govt made the argument in DACA case that it warned its approach was “subject to change.” That didn’t impress the Supreme Court and shouldn’t impress this court. DHS can’t evade reliance interests. 11

The govt positing interests ICE MIGHT have considered. Harvard – This is irrelevant. The court “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” 12

Govt says that “as many institutions across the country reopen, there is a concordant need to resume.” Harvard – the govt offers no reason WHY such a “need” has arisen or how this Directive relates to the “need.” No explaining why public health concerns are met. 13

ICE says in the FAQ that it’s minimizing the risk of transmitting COVID by not admitting students. Harvard: What about forcing 1000s of students to travel out of the US through US airports and forcing those staying to congregate on campus for in-person instruction? Just dumb. 14

Harvard – The real reason for this is the one the govt never says – to force schools to reopen. They have admitted this in interviews even though they won’t admit it to the court. 15

Argument 2 – The Directive Violates the APA’s Notice-and-Comment Requirement. The Directive is a rule & the govt should have provided notice and comment. Directives are rules if they are applied in a way that’s binding. That’s the case here with various mandates and threats. 16

That students are already being denied shows its binding contradicting the govt’s suggestion that it would “most likely” not enforce until a rule is issued. If the govt acts as if the document is controlling in the field, it’s a binding rule. 17

The govt’s argument that the Directive doesn’t have legal effect fails is wrong. The Directive says the govt won’t issue visas or admit students. And they’re already stopping issuing visas or admitting students based on the submitted declarations. 18

Now Harvard’s getting to the standing argument. The govt claimed it couldn’t speak for students. First, the govt doesn’t contest Harvard/MIT’s right to sue in their own right. But the schools ALSO have 3rd-party standing. 19

3rd party standing is allowed with the plaintiff personally has suffered an injury in fact (that’s asserted), the litigant has a close relationship to the 3rd party and a barrier prevents the 3rd party from protecting its own interests. 20

Courts have long held schools have 3rd party standing to assert the rights of students. Case law has said students educational success is “inextricably bound up” in the universities’ capacity to teach them. 21

Student are deterred from asserting their own rights. They fear retaliation by the govt, they are scattered around the world, and there’s no way they had time to do so given ICE’s deadlines.22

Harvard moves to the equitable factors favoring an injunction. 1st, it says the govt averts its gaze from the massive irreparable harm its will cause F-1 students ordered to leave or barred from reentering & US students who will lose the benefit of their peers’ contributions. 23

Lots of examples cited. For example, 1K of Harvard’s students are from countries subject to @travelgov “do not travel” advisories and 3K are from countries with a time difference of 6 or more hours. 24

Schools also in a rough spot – give up carefully vetted plans made with the input of public health experts or lose the contributions of F-1 students. Many students will drop out or defer. Many programs depend on international perspectives of classmates. 25

The 7/6 Directive is contrary to the purpose of the F-1 program which is to permit international students to “pursue a full course of study” in the US. In March, the govt said the best way for student to make normal progress is, in many cases, to allow online classes. 26

Pence admitted last week that the national state of emergency is likely going to be extended. Requiring the govt to follow the 3/20 Guidance causes the govt no harm or not one outweighing the harms from the 7/6 Directive. 27

The public interest also favors a preliminary injunction. The dozens of amicus briefs show that. We lose the benefit of the contributions of international students while simultaneously threatening public health. 28

Now for the final section – A Program-Wide Injunction is Necessary to Provide Complete Relief. The govt doesn’t deny that an injunction should be national and only this type of relief is adequate. A narrower injunction limited to Harvard and MIT would be unworkable. 29

That 18 states have weighed in supporting a nationwide injunction is also telling, according to Harvard. Plus, the APA instructs courts to “set aside” unlawful “agency actions”. 30

So this will be the last of the important filings before the hearing which starts in about 90 minutes. Given ICE has imposed a 7/15 deadline on schools to submit their plans, the court is very likely to make a decision on this today. 31

On our weekly Facebook Live event tonight at 7 CT, we’ll be talking about this. You can watch at http://www.facebook.com/siskindusser . I’m fairly optimistic that Harvard will win this. Hope that turns out right. END OF THREAD. 32