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The Incoming Administration Must Protect International Students (And Everyone Else)

By Ari E. Benkler
Ari E. Benkler ’21, a Crimson Editorial Chair, is a Social Studies concentrator in Leverett House.

International students at Harvard and around the country have been targeted by Donald J. Trump’s administration, especially amid the uncertainty of the pandemic but also earlier in the President’s tenure. This election meant so much to many international students because it could have delivered either an end to these policies or their indefinite continuation. Now that Joseph R. Biden Jr. has won, he must deliver a Department of Homeland Security that treats all students, and all people, with dignity. That requires moving fast to undo some of his predecessor’s most cruel initiatives.

At the end of September, the Trump administration’s Department of Homeland Security issued a draft proposal for a new rule that would limit the duration international students can stay in the United States without reapplying. Under the current system, international students granted a student visa are allowed to stay in the U.S. “for the duration of status” — until the end of their studies, as long as they don’t violate other provisions in the visa’s rules. Under the new system, students will only be granted fixed-term four-year visas, after which they will be forced to reapply.

And that’s not the worst of it. Four years will be the standard offering, according to the Department’s website, “unless DHS determines that the nonimmigrant is subject to a shorter period of authorized stay limited to two years.” One factor that directs such a determination is country of origin: countries with greater than 10 percent of visitors to the U.S. overstaying student and exchange visas will automatically see their students “limited to up to a two-year fixed period of stay to increase monitoring, deter immigration violations and incentivize timely departure.”

This regulation, and the administration that promulgated it, must go right out the door on Jan. 20. Students require security and continuity in their education, and none deserve to be set back temporarily or permanently, prevented from making living arrangements, enrollment decisions, and prioritizing school work because a government hostile to a global exchange of knowledge and ideas has decided they aren’t welcome in America.

So what are the prospects for fighting this noxious nugget of thinly-veiled regulatory nativism?

At first glance, they appear weak. After draft rule changes like this one, there is a mandatory public comment period of at least 30 but usually closer to 60 days, set at the discretion of the agency releasing the rule, after which a rule is final and has the full force of law.

The Congressional Review Act, a 1996 measure passed under the auspices of former House Speaker Newt Gingrich as part of the Contract With America Advancement Act, offers a way out for this and other 11th hour regulatory efforts. The act provides that if both houses of Congress pass a resolution disapproving of a regulation and the president signs that resolution, the regulation is voided. Under the CRA, rules submitted to Congress are eligible to be overturned by a resolution of disapproval for 60 Congressional working days. But if the 60-day limit runs into a new Congress, the timeline resets in both houses, and the new legislators have a full 60 congressional working days to pass resolutions of disapproval.

The upshot? If (and only if) Democrats win both seats in Georgia on Jan. 5, the Biden Administration will have a 60 Congressional-working-day countdown with which to undo the Trump Administration’s last regulatory acts, including reversing the new DHS visa limitations which would provide immediate relief to international students whose status in the U.S. may be at risk.

Further, the passage of a resolution of disapproval has longer-term implications: the agency in question is barred from making future regulations that are “substantially the same” without express legislative authorization to do so at a later date. Using the CRA offers not just a way to immediately rescind certain regulations, but a long-term bulwark against future abuse.

And that’s not the only issue CRA resolutions can address: Some of the most egregious regulatory efforts of the last 60 congressional working days, (likely since sometime this summer, depending on the number of days the current Congress remains in session) include an emissions-intensive relaxation of the EPA’s methane emissions standards for fossil fuel facilities, as well as deregulation of substances known as volatile organic compounds. Just on the environment, 20 more pernicious regulations are waiting in the wings for a final sprint to the end of the year.

This systematic effort would be the unfortunate but logical next tit-for-tat in the ongoing deep political conflict our country faces. The CRA had only been used once in this manner before 2017, when the then-incoming 115th Congress used it more than a dozen times to undo regulations issued under the Obama administration.

Cooperation between parties, sharing of ideas, and a genuine exchange of perspectives remain enormously valuable. But democracy has been studied as a multi-period game, in the economic sense. Each side responds strategically to the other, and the sides can either set norms of reciprocity or distrust. Living in 2020, there can be little doubt that distrust is the currency of the day. The past four years have already borne witness to legal efforts to disenfranchise minority voters, completely unfounded claims of election fraud, and three historically brazen episodes of Supreme Court hardball. Democrats must find measured but substantive ways to communicate that such violations will not be forgiven without reply, without forgetting that for such downward spirals to end, cooler heads more eager for cooperation and mutual toleration must eventually prevail.

One can long for the days of consistency of governing approach and a broad value consensus across the two parties, with large degrees of continuity in the regulatory state between administrations, and hope to return to them someday soon for the sake of democratic stability and a healthier society. But so long as we remain so intensely, bitterly divided, procedural mechanisms must be understood — within important limits: the impartiality of our elections must be sacred, among other things — as Republicans seem to understand them: Vital political tools to protect the values that we believe American institutions should embody.

Ari E. Benkler ’21, a Crimson Editorial Chair, is a Social Studies concentrator in Leverett House.

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