Cases & Developments

The American Council on Education (ACE) sent a letter (the Letter) to Secretary Marco Rubio of the U.S. Department of State and Secretary Kristi Noem of the U.S. Department of Homeland Security seeking information about the State Department (State) and Department of Homeland Security (DHS) policy and planned actions relative to international students and scholars. The Letter is written in light of reports that student visas are being revoked, and records are being terminated in the Student Exchange Visitor Information System without additional information being shared with the institutions those students attend. The Letter states that over 1 million international students attend U.S. colleges and universities annually, and while those who signed the Letter support the need for the federal government to safeguard national security, institutions cannot fully support that mission unless there is a briefing to better understand the actions occurring, including the recent communication to U.S. consulates requiring enhanced social media vetting for all F, M, and J visa applicants.  

The American Association of University Professors (AAUP) sent a letter (the Letter) to postsecondary general counsels clarifying that they are under no legal compulsion to comply with requests for names and nationalities of students and faculty who may have been involved in alleged Title VI violations, and further, urged them not to comply. The Letter states that Title VI does not require higher education institutions to provide the personally identifiable information of individual students or faculty members so that the federal executive administration can carry out further deportations and asserts that sharing such information may violate the First Amendment rights of students and faculty.  

Order and Opinion Denying Defendants’ Application for a Partial Stay. Plaintiffs, including State and Attorneys General of Massachusetts, New Jersey, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawai’i, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Rhode Island, Vermont, Wisconsin, and the City and County of San Francisco, allege that Defendants, Donald J. Trump, U.S. Department of Homeland Security (DHS), Benjamin Huffman as Acting Secretary of Homeland Security, Social Security Administration (SSA), Michelle King as the Acting Commissioner of the SSA, U.S. Department of State, Marco Rubio as the Secretary of State, Health and Human Services (HHS), and Dorothy Fink as the Acting Secretary of HHS, have acted unconstitutionally in the announcement of Executive Order 14160 “Protecting the Meaning and Value of American Citizenship” (the Executive Order) and that actions taken by defendant agencies to implement or enforce the Executive Order would effectively violate the Administrative Procedure Act (APA). Nationwide preliminary injunctions were issued by courts including the District of Maryland, the Western District of Washington at Seattle, and in the District of New Hampshire. Defendants sought and were denied a stay of the preliminary injunction by the First Circuit. The First Circuit was unpersuaded by Defendants’ argument that the injunction “prevents the President from carrying out his broad authority over and responsibility for immigration matters” resulting in irreparable harm to it and thus the public interest, as well as the claim that the injunction itself is overly broad to the extent that it “prevents . . . the Executive Branch as a whole from beginning the process of formulating relevant polices and guidance for implementing the President’s Order.” It denied the request for partial stay, noting that Defendants declined to make any developed arguments showing that the Executive Order itself was either constitutional or compliant with 8 U.S.C. § 1401. In addition, the First Circuit noted that Defendants failed to identify specific steps they wish to but are enjoined from taking. Therefore, it denied the request for a partial stay, and the injunction of the Executive Order remains in effect. 

Complaint for Declaratory and Injunctive Relief. Plaintiffs, State and Attorneys General of Massachusetts, New Jersey, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawai’i, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Rhode Island, Vermont, Wisconsin, and the City and County of San Francisco, allege that Defendants, Donald J. Trump, U.S. Department of Homeland Security (DHS), Benjamin Huffman as Acting Secretary of Homeland Security, Social Security Administration (SSA), Michelle King as the Acting Commissioner of the SSA, U.S. Department of State, Marco Rubio as the Secretary of State, Health and Human Services (HHS), and Dorothy Fink as the Acting Secretary of HHS, have acted unconstitutionally in the announcement of Executive Order: Protecting the Meaning and Value of American Citizenship (the Order) and actions taken by defendant agencies to implement or enforce the Order would effectively violate the Administrative Procedure Act. Plaintiffs allege the Order expressly violates Section 301 of the Immigration and Nationality Act and the guarantee of birthright citizenship to all individuals born in the United States and subject to the jurisdiction thereof. Plaintiffs reason the President has no authority to override or ignore the Fourteenth Amendment’s Citizenship Clause or otherwise amend the Constitution unilaterally. Plaintiffs further argue by way of United States v. Wong Kim Ark, 169 U.S. 649 (1898) that “the Citizenship Clause contains no exceptions based on the citizenship or immigration status of one’s parent(s). Rather, the Citizenship Clause’s only requirements are that an individual be born ‘in the United States’ and ‘subject to the jurisdiction thereof.’” Additionally, plaintiffs cite to the Office of Legal Counsel from a statement to Congress in 1995 stating that proposed legislation that would deny citizenship to certain children born in the United States based on their parents’ immigration or citizenship status would be “unquestionably unconstitutional.” If the Order were to go into effect, plaintiffs contend it would deny over one hundred and fifty thousand children nationwide of their birthright to citizenship over the course of a year. Plaintiffs argue that the President has no authority to rewrite or nullify a constitutional amendment or duly enacted statute. Nor is he empowered by any other source of law to limit who receives United States citizenship at birth; as such Plaintiffs ask the Court to preliminarily and permanently enjoin defendants from enforcing the Order.