Harvard Could Face Uphill Battle in Court as It Challenges Trump’s Proclamation

Harvard’s effort to overturn President Donald Trump’s Wednesday order barring incoming international students from entering the country to attend Harvard is unlikely to yield a quick or easy legal victory, according to more than a dozen legal experts.

The order, framed as a national security measure, cites Harvard’s alleged failure to cooperate with federal requests for information and directs the State Department to review the visa status of current international students and researchers on a case-by-case basis. Harvard swiftly challenged the proclamation in court, arguing that it is retaliatory, violates the University’s First Amendment rights, and oversteps the president’s authority.

The arguments could set up a contest between constitutional protections and the president’s expansive power to restrict entry to the United States.

Jacqueline Stevens, a political science professor at Northwestern University, said while Trump’s executive order is also “a very clear violation of the First Amendment,” Harvard may face more difficulty in contesting this order because of the executive branch’s broad authority over foreign policy.

“The question is whether the jurisprudence that gives deference to the executive branch when it comes to foreign policy is going to override the jurisprudence on the First Amendment,” Stevens said.

Though Harvard could face an uphill court battle, its case for a short-term block may be easier. Harvard has requested a temporary restraining order in response to Trump’s Wednesday proclamation. International law attorney Bhuvanyaa Vijay wrote, in a text shortly before the filing, that it is highly likely the University would be granted one.

Cornell University immigration law professor Jacob Hamburger said that lower courts tend to interpret the Immigration and Nationality Act, which Trump said authorized his proclamation, more narrowly than the Supreme Court. Lower courts may be less likely to allow the president broad discretionary authority, according to Hamburger — and Allison D. Burroughs, the judge overseeing the case, has been sympathetic to Harvard’s earlier requests for temporary relief.

But immigration law scholars said that while a TRO is likely, a legal battle will be long with significant obstacles — especially if the case reaches the Supreme Court.

The order relies on Section 212(f) of the Immigration and Nationality Act, a provision that grants the president authority to suspend the entry of noncitizens when deemed “detrimental to the interests of the United States.” The Supreme Court upheld a broad vision of that authority in Trump v. Hawaii, the 2018 decision that allowed the administration to block travel from several Muslim-majority countries.

Legal experts said that precedent gives the president wide discretion to restrict entry into the United States, particularly when national security is invoked — even if the policy appears politically motivated.

“Immigration is a vastly discretionary area of practice,” Vijay said. Countries in general have wide latitude to control who enters their borders, and broad-strokes interpretations of 212(f) indicate that courts may be sympathetic to Trump’s case, she said.

Several scholars pointed out that unlike previous uses of 212(f), which focused on nationality of broad categories of travelers, Trump’s latest order singles out a single academic institution — a move they said has no clear precedent in immigration law.

Nicole Hallett, an immigration law professor at the University of Chicago, said that despite the Trump administration’s “novel” invocation of the statute, it is unlikely the Supreme Court would stray from precedent.

“It is possible that courts will make a distinction, but I think that the administration is very smart in using this statute because it has been interpreted so broadly in the past,” she said.

With a Supreme Court that is more conservative than it was during Trump v. Hawaii, Harvard’s odds may be even slimmer.

“I’m sure other lawyers thought the Muslim travel ban was unconstitutional too, but a more liberal Supreme Court than the one we have now upheld it,” immigration attorney Ian Campbell wrote in a text.

Harvard has paired its opposition to Trump’s Wednesday proclamation with its lawsuit against the administration’s earlier attempt to revoke its Student and Exchange Visitor Program certification, which allows it to host international students and scholars. The University won a temporary block on the revocation, arguing that it would cause immediate and irreparable harm.

The judge overseeing the case has not yet ruled on Harvard’s core claims that the revocation infringed on its academic freedom and was retaliation for engaging in constitutionally protected speech — both violations of the First Amendment, according to the lawsuit.

But Campbell wrote in a text that Trump’s new visa ban is less vulnerable to First Amendment challenges because it cites national security concerns and omits any mention of Harvard’s refusal to let the administration influence the views of its faculty and leadership — a key issue that made the earlier SEVP-related demands constitutionally problematic.

Harvard’s SEVP lawsuit also argued that the Trump administration did not follow due process.

But Jeff Joseph, the former vice president of the American Immigration Lawyers Association, said Trump’s decision to single out Harvard — while leaving other universities unaffected — strengthens claims that the policy is arbitrary and capricious, a violation of the Administrative Procedure Act.

“It looks on its face like it’s hard to challenge, but once you get under the covers and see you know what the government’s rationale was, you may find that you have some litigation,” Joseph said.

Harvard has not challenged the proclamation under the Administrative Procedure Act, but its lawsuit argues that the order violates the Equal Protection Clause of the Fourteenth Amendment by singling out Harvard.

Paul A. Gowder, a Northwestern University professor who studies constitutional law, said he thought the Equal Protection Clause — which courts have applied to the federal government through readings of the Fifth Amendment’s due process requirements — could provide Harvard with a second constitutional argument against the proclamation.

Gowder said he thought Harvard would be smartest to fight the proclamation on constitutional terrain in order to avoid Trump’s claims that the move is within his national security powers.

“If I were Harvard’s lawyers, I would argue that this isn’t really a foreign policy issue,” he said.

University of California Berkeley Law Professor Katerina Linos ’00 said that, no matter the legal outcome, the Trump administration’s policies had already damaged the United States’ reputation as a welcoming destination for international students.

“Merely by creating all of this uncertainty, the Trump administration is reducing the excitement international students have about attending other schools in the U.S.,” she said.

Linos said that policies restricting visas “destroy this phenomenal opportunity for Americans and for the US to interact with the world, with people who want to come here and share their knowledge.”

—Staff writer Samuel A. Church can be reached at samuel.church@thecrimson.com. Follow him on X @samuelachurch.

—Staff writer Dhruv T. Patel can be reached at dhruv.patel@thecrimson.com. Follow him on X @dhruvtkpatel.

—Staff writer Cam N. Srivastava can be reached at cam.srivastava@thecrimson.com. Follow him on X @camsrivastava.

—Staff writer Grace E. Yoon can be reached at grace.yoon@thecrimson.com. Follow her on X @graceunkyoon.