Balkinization: ICE and Student Visas: What's the Law? (An Untutored View)

ICE and Student Visas: What's the Law? (An Untutored View)

Mark Tushnet

Essentially untutored in immigration law, I’ve been trying to figure out the law associated with ICE’s “guidance” statement about student visas and enrollment in all on-line instruction, without much help from journalistic accounts. (So far the best, and it isn’t great, is from the Chronicle of Higher Education.) So here’s a stab, with a warning at the outset that I’m pretty sure I’ve overlooked some important things.

First, the regulatory background. There’s a long-standing regulation in place that says that people with student visas have to maintain a full course of study. I assume that the regulation is designed to reduce or eliminate two kinds of fraud: by “students” who nominally enroll in educational programs but actually don’t take “real” courses or enough courses but rather use their visas as a way to get into the United States and live some other sort of life; and by “educational institutions” that cater to such students. That regulation had been interpreted to mean that students could take only one course on-line.

When the pandemic hit and many schools shifted to all on-line education, many international students were more or less automatically put out of compliance with the existing regulation and were nominally subject to immediate removal. To avoid that sudden disruption, ICE issued a guidance statement saying that the “only one course on-line” interpretation of the full-course-of-study rule would be suspended “for the duration of the emergency.” That meant that foreign students who were out of compliance with the full-course-of-study rule were not faced with the possibility of immediate removal.

The recent ICE action withdraws that guidance statement, and replaces it with another. The core is that people with student visas can take one course on-line, and can take additional courses on-line as long as they take some courses in-person; the new statement leaves it unclear how many on-line courses a visa-holding student can take, but it is clear that the student must take at least one course in person. And, apparently, each school must certify that each individual student who is taking more than one course on-line is taking “enough” courses in person to remain in compliance with the “full course of study” rule.

Now, what are the legal issues? First, is the new guidance reviewable at all? In other contexts that question has taken on a partisan tinge, with Republicans insisting that Obama-era guidance statements amounted to reviewable rules, Democrats contending otherwise; and exactly the reverse for Trump-era guidance. To the extent that some law on reviewability has emerged, it appears to be, roughly, that if the guidance affects a fairly large number of people and has a rule-like structure, with a relatively short list of criteria that might be converted into something like a checklist, guidance is reviewable (even if there’s a general reservation of power to depart from the guidance in individual cases) – and might even have to go through notice-and-comment rule-making (though that process can be delayed if the agency issues the guidance as an emergency rule “for good cause”). My instinct is that the new guidance probably is reviewable under that approach, though I should note that my instinct is shaped by my view that reviewability should be quite broad in general.

Second, is the new guidance arbitrary and capricious? Here the Harvard-MIT complaints were obviously drafted with the recent DACA decision in mind. The complaint says that the new guidance is arbitrary and capricious because it alters the prior guidance suspending the “one on-line course only” interpretation without adequate consideration of, among other things, important reliance interests. Here, I think, the first question is, What did the prior guidance mean in referring to “the duration of the emergency”? The complaint assumes that “the emergency” refers to the presidential declaration of a national emergency in connection with the pandemic as a whole. It seems to me, though, that a plausible, and maybe even reasonably strong, case can be made the “the emergency” referred to the precise circumstances of a mid-semester change in programming that threw visa-holders out of compliance with the “full course of study” rule as interpreted. But, if “the emergency” refers to the pandemic as a whole, my instinct is that the DACA-decision argument is a pretty good one.

This morning Larry Tribe suggested via Tweet that the new guidance violated the First Amendment. Maybe so, if one could establish that it was adopted for the purpose of inducing colleges to change their educational programs. But, with the “full course of study” rule in the background, I think that would be a serious uphill climb. Start with that rule itself. It gives incentives to schools that think it important to enroll foreign students to develop a particular (though quite loose) educational model, to prevent the kinds of fraud I’ve described. Is that unconstitutional? Maybe not: The rule is subject to evaluation under the First Amendment, but is constitutionally permissible because (a) the contours of permissible models are quite broad, meaning that the incentive effects of the rule are weak, and (b) the antifraud purpose is good enough [compelling or whatever].

What, then, absent bad motivation, would make it unconstitutional for the government to revert to the pre-existing “full course of study” rule? Maybe the argument is that the continuing circumstances of the pandemic make the incentive effects of the “full course of study” rule much stronger (meaning that they have a constitutionally significant larger effect on colleges’ choice of educational models). That might be right, though I think it implies that the mid-semester guidance issued last semester wasn’t merely discretionary with ICE but was actually constitutionally required.

So, that’s my untutored view of the law – and it might be wrong both in detail and with respect to some particulars.

As a predictive matter, though, I’m reasonably sure that the new guidance will be enjoined for the next academic year (or at least for the next semester), at least with respect to a large subclass of those currently holding student visas. Given that the new guidance allows students to retain their visas if they attend schools with a hybrid model mixing on-line and in-person instruction, my guess would be that the injunction would cover students already enrolled in programs that have declared that they will be all on-line and students enrolled in programs that they would be allowed to complete with no more than one in-person class (the latter to deal with the ambiguity of the “some but not all” component of the new guidance). (I have in mind here the way in which the Supreme Court temporarily upheld injunctions against the “Muslim-ban” rule while defining narrowly the class of those protected by the injunctions.)

I’ll open this to comments, which, I hope, will be directed primarily at clarifying the relevant legal arguments and, specifically, at correcting any mistakes I've made.

Posted 9:45 AM by Mark Tushnet [link]

Comments:

Going back to first principles, why are educational visas issued?

So that the relevant students can attend classes, right?

If they don't have to be present in the US to attend the classes, why exactly do they need the visa?

So, we have to ask, what exactly is the harm it is proposed that the students losing these visas are suffering? Because, unless there's at least one in person class involved, it is NOT the ability to receive their education.

Additional travel expenses? Possibly. But that's about it. And in many cases this might be countered by reduced cost of living.

So, as applied to students receiving just remote education, and particularly those students beginning their course of study, I don't see this rule change as particularly problematic. It's sufficiently in advance of the start of the academic year to allow planning, and reasonably respects the purpose of education visas.

The real issue is in regards to students who are already here, and would not otherwise be subject to travel expenses. And, of course, the question of whether institutions are creating in person requirements pretextually. I should think anybody with lab classes would probably be pretty safe under this new rule.

But I agree with your prediction, because the threshold for courts enjoining this administration's rule making has been remarkably low.

# posted by

Brett : 11:56 AM

"So, we have to ask, what exactly is the harm it is proposed that the students losing these visas are suffering?"

It's little surprise Bircher Brett, who has demonstrated a very limited imagination when it comes to other people's potential problems, can't conceive of any, but off the top of my head: If the classes are asynchronous it could be significant. Also, other nations may lack equivalent infrastructures to make online education feasible/equivalent to what they'd get in the states. Additionally, COVID or other situations may be different for the students back home. Last, even persons taking classes wholly online at times use on-campus resources.

# posted by

Mista Whiskas : 1:32 PM

Also in response: an alternative formulation would be -- "to get an education of the sort offered by US institutions."

# posted by

Mark Tushnet : 1:33 PM

There's also of course reasonable claims of harm made by the institutions (they can argue they lose valueable customers, potential prestige, loss in educationally beneficial diversity, etc.,) as well as the states wherein the institutions are located.

# posted by

Mista Whiskas : 1:52 PM

So, we have to ask, what exactly is the harm it is proposed that the students losing these visas are suffering? Because, unless there's at least one in person class involved, it is NOT the ability to receive their education.

As MW points out, there are a number of harms. The time differences create difficulty not only with class schedules but with interacting online with other students, in study groups or whatever, meeting with instructors, and so on. There may also be issues of access to libraries or other physical facilities.

And the institutions suffer harm by, inevitably, losing some number of students they would like to keep.

A better question is what benefit this rule is intended to provide the country. Aside from being a bone thrown to xenophobes, there is none, and considerable harm done to the students and their institutions.

# posted by

byomtov : 2:04 PM

I think you're all exaggerating the difficulties here; I've traveled abroad, and while you might have trouble doing online classes in war zone like Somalia, in almost every even 2nd world nation, and many 3rd world, getting internet access is cheaper than traveling to the US. It's 2020, people, not the 1990's.

And the claim that a simple difference of time zone is that big a deal is laughable. Like nobody works night shift.

And, yes, there might be some hardships for the colleges if they can't justify full tuition and ripping these students off for dorm rooms, but I don't see their standing, it's the student's visa, not theirs.

The key point here is, this is already the law. Students were benefiting from a temporary waiver that was issued without going through the usual APA route, an irregular exercise of prosecutorial discretion. The waiver has been partially withdrawn, but they never had a legal right to it in the first place.

# posted by

Brett : 2:38 PM

Well, it's not surprising that Bircher Brett feels the need to handwave away harms he couldn't imagine at the start of the conversation. And I mean to say it's not surprising for him. Because there are a lot of people who, when they ask the kind of question he did, mean it as an honest question they're curious about, and those people would say 'oh, well, I honestly didn't consider that and that and that.' Those folks are not like Bircher Brett, who mean a question like that more as rhetorical tool to express a position they feel the need to defend.

In the class I taught last semester I had four or five (out of 25) who did not have regular, reliable internet access in their parents home. One student had to drive into town and sit in the McDonald's parking lot and use their Wi-Fi to do online assignments. In my kids K-12 schools our town had to work out a deal with the local Wi-Fi provider to create a limited 'hot spot' at the park where kids who didn't have home access (about 10% of the students in our schools) could go do work. Needless to say that's a less than optimal learning situation. It's also true that while some people prefer and others can adapt to, say, working 2nd and 3rd shift, some people really struggle with it. I just had a policeman down the road from me who quit after 15 years because they wouldn't rotate him off night shift and he said he just never got used to it.

But minimizing the potential problems of other people comes casually and easily to people like Birchers. Maybe it's because they've got so much hyperbolic focus and overkil on their own problems (making me wear a mask is like tyranny! a slight raise in my taxes is slavery!) they've got no emotional capital left to empathize with others, but I bet it's just the usual need to circle the wagons around a position their 'side' has taken.

# posted by

Mista Whiskas : 3:40 PM

I'd also like to use this as an example of why it was so silly for conservatives to lose their collective poop when Obama said a quality he liked in Sotomayer was empathy. Here's a very good example of why empathy is important to being a judge (or any other government official). There are times where a judge or an official has to, and is supposed to, take into account in a balancing of what have you the burdens and hardships that accrue to different sides. If you have someone who doesn't do empathy well, who really has trouble imagining the potential problems of people other than himself, and that potential problems are harder for some people than others, and who minimizes (neutralizes) those harms to others so casually (well, maybe this will make them switch to night shifts, but hey, lots of people work night shift, so no harm, right?), then they are going to do a poor job of judging (or deciding) in those situations. Judges see cases for a variety of people. They need to be able to put themselves in other's shoes, to imagine the differing hardships for differing people in differing situations, if they are going to do justice and apply the law correctly. This is Obama was correct and his critics were wrong about empathy.

# posted by

Mista Whiskas : 3:47 PM

"were benefiting from a temporary waiver that was issued without going through the usual APA route, an irregular exercise of prosecutorial discretion. The waiver has been partially withdrawn, but they never had a legal right to it in the first place."

Gee, that sounds an awful lot like a recent Supreme Court case that went the opposite way that Bircher Brett called it...Maybe Professor Tushnet even mentioned this case and the analogy in his piece, and so just asserting the excerpted comment's position without addressing his discussion of that is pretty obtuse (at best)?

# posted by

Mista Whiskas : 3:52 PM

The key point here is, this is already the law. Students were benefiting from a temporary waiver that was issued without going through the usual APA route, an irregular exercise of prosecutorial discretion. The waiver has been partially withdrawn, but they never had a legal right to it in the first place.

No. The key point is that withdrawing the waiver is not necessary for any legal reason, confers no benefit whatsoever, and does a great deal of harm. As usual with Trump, cruelty is the point.

And what's this complaint about "ripping students off?" I thought you were a free-market/libertarian kind of guy. Or is that only when the money goes to someone you like?

# posted by

byomtov : 5:03 PM

Essentially untutored in immigration law, I’ve been trying to figure out the law associated with ICE’s “guidance” statement about student visas and enrollment in all on-line instruction, without much help from journalistic accounts.

This is not surprising. Legal journalism these days consists of (1) journalists and political pundits who analyze cases solely by who wins and who loses, and (2) "scholars" and "experts", whose interpretation of the Constitution and the federal statutes is to require everything they find ideologically attractive.

At any rate, I appreciate this attempt to figure out what the law actually is. Way too few public voices ever do this.

# posted by

Dilan : 5:10 PM

At any rate, I know little about either the APA or the non-human rights part of immigration law. So I can't offer any substantive comment on these things.

Seems to me that the schools have standing, though. I don't particularly care that much about some of their injuries (if Harvard loses a whole bunch of money this year, this would not, actually, be a bad thing), but for Article III standing, you need injury, causation, and redressibility, and a college that stands to lose tuition from some foreign students who will be forced to drop out because of this regulation satisfies that test.

# posted by

Dilan : 5:18 PM

It doesn't seem to me that any significant number of students will be forced to drop out, remote learning being eminently possible from outside the US, should the schools decide to switch to a remote learning model going forward. Which they may choose to do, but the administration is hardly demanding they do.

Further, we're talking about students who would have already lost their visas if not for a temporary, discretionary waiver. "Discretionary " is the exact opposite of "mandatory".

Finally, per CDC criteria, it's questionable whether Covid-19 still even qualifies as an epidemic, the death rate from it having dropped to normal flu season levels. This will make it hard to dismiss as legally indefensible the administration's decision that the emergency justifying the waiver is ending, since such waivers are not a routine flu season response.

# posted by

Brett : 6:39 PM

Note Brett doesn't address *anything* directed towards his previous comments. He just re-states himself. Dishonest, partisan incoherent. This is conservatism today, folks. If we ever wonder why we have to go round and round thru time with him, well, it would be the same in a single conversation or day. He starts and finishes from the same position and it not remotely interested in anything else.

Re: COVID

12,469 deaths from H1N1 From April 12, 2009 to April 10, 2010
https://www.cdc.gov/flu/pandemic-resources/2009-h1n1-pandemic.html

132,934 deaths from COVID
https://en.as.com/en/2020/07/09/latest_news/1594246799_483216.html

# posted by

Mista Whiskas : 6:52 PM

It doesn't seem to me that any significant number of students will be forced to drop out

If they lose one, isn't that enough to give them standing?

I heard a bit of the oral argument this morning, and it sounds like they have some students from places like Somalia and Syria who really will drop out if forced to return to their home country. That's enough to get them standing, IMO.

# posted by

Dilan : 7:28 PM

You think you're contradicting what I wrote by giving cumulative deaths, and a death rate from months ago?

The CDC decides if there's an epidemic by the percentage of deaths from a particular disease vs total deaths. Covid-19 death rates have been dropping for months, and are now approaching the level where it stops being an epidemic. This is something to cheer about!

I think some people have become perversely happy to have this virus be an emergency. Emergencies are excuses to do things you can't do in normal times. Shut down church services. Have the courts mandate long desired election law changes. Put huge numbers of people on the dole.

The emergency is coming to an end, even if you'd rather it lasted past the election. Returning to normal enforcement of immigration laws is just another consequence of that. Sucks for universities that want to pretend the emergency is still in existence, but whose fault is that?

# posted by

Brett : 7:48 PM

"That's enough to get them standing, IMO."

I agree that it would be possible to implement this in a way that might cause a legally recognizable injury and standing. I don't think the courts can just assume that it will be.

# posted by

Brett : 7:51 PM

Dilan,

I don't think any of Brett's comments here need to be taken seriously. He has addressed none of the objections or questions that have been raised, preferring to substitute his own baseless opinions about harms for any sort of meaningful response.

I guess he's just terrified that these foreign students are going to take away his guns.

Rest easy, Brett. They won't.

# posted by

byomtov : 10:00 PM

I agree that it would be possible to implement this in a way that might cause a legally recognizable injury and standing. I don't think the courts can just assume that it will be.

In a preliminary injunction or TRO context, it isn't that courts assume standing, but just like anything else, only a probability of success is required. So if Harvard shows it's probable that they are going to establish standing, that's enough. If it turns out later they can't, they can still lose the case.

# posted by

Dilan : 10:51 PM

"You think you're contradicting what I wrote by giving cumulative deaths, and a death rate from months ago? "

Bircher Brett and his ilk played this down the entire way. On many other threats to 'Americans' they amplified.

# posted by

Mista Whiskas : 11:05 PM

"The epidemic is finally ending!"

But a lot of people died, and were dying months ago, so it CAN'T be ending now!"

That's you, Mista Whiskas. Have trouble with tenses much? Yes, it was considerably worse than an average flu season back in April. It isn't anymore. Yay!

# posted by

Brett : 5:49 AM

Anyway, back on topic:

If students can take classes remotely, they almost certainly don't need to be present in the country, and thus don't need their educational visas, which are premised on their needing to be present in the country to get their educations.

This was the prevailing law, which was suspended on an expressly temporary emergency basis.

Now the emergency is coming to an end, and the suspension is ending.

Are there exceptions, people who will be harmed by this? Sure, not a lot of them, but some. Let's see if the policy is properly implemented to accommodate them.

In the meanwhile, universities can cope with this return of normalcy by returning to normal operation, instead of insisting on engaging in pandemic theater after the pandemic has passed.

# posted by

Brett : 6:56 AM

I think Bircher Brett's credibility regarding the state of the pandemic is pretty shot, he played it down contrary to expert opinion for political reasons and it should be assumed he's doing the same now.

Likewise, he's obviously determined not to even imagine the hardships this policy brings to the parties involved, and whatever the law ultimately is he's therefore not fit to opine on the matter.

# posted by

Mista Whiskas : 8:23 AM

https://www.cdc.gov/flu/about/burden/preliminary-in-season-estimates.htm

According to the CDC we had 24,000 - 62,000 flu deaths from 10/1/19 through 4/4/20.

Taking the high number that's 332/day. There were 960 deaths from covid yesterday.

# posted by

byomtov : 8:37 AM

Sheesh. I cite potential hardships, and this makes me determined to not even imagine them?

In most cases, remotely doing classes from another country will not involve any greater hardships than getting a college education normally entails. MOST cases. I agree that, in those cases where it would, (Where extra travel expenses would be incurred, or internet access wouldn't really be practical.) accommodations ought to be made.

But, only so long as remotely doing the classes is actually required by an emergency, because the law in ordinary times does NOT let you get an educational visa to do online classes, and the pandemic did not irreversibly change that, it just caused the administration to offer a temporary waiver.

Once the emergency is over, any consequences of failure to qualify for the visa under the established law due to the universities insisting on remote learning are consequences of the university's choices. Lay the blame at THEIR feet.

Engaging in pandemic theater will have real consequences for foreign students, the universities should refrain from it. If they wouldn't shut down during a normal flu season, they have no justification to do it this fall, because the Covid-19 death rate has dropped into the normal range for influenza.

# posted by

Brett : 8:37 AM

"Taking the high number that's 332/day. There were 960 deaths from covid yesterday."

My source indicates that that number is about right not for Covid alone, but instead, "Deaths involving Pneumonia, Influenza, or Covid-19". For the WEEK, not day. Keep in mind that the daily count is very noisy, because different states report deaths for the week on different days.

As you can see from their chart, the death rate has improved dramatically since April, and is substantially lower for measures that don't just throw all respiratory illness deaths together.

# posted by

Brett : 8:51 AM

Brett really needs to present a credible source for the "death rate has dropped" -- because, according to the CDC:

"Mortality attributed to COVID-19 decreased compared to last week and is currently at the epidemic threshold but will likely increase as additional death certificates are processed."

Looks to me like a dropping death rate may be a combination of two factors: first, a reaction on the part of those most likely to be seriously affected by the virus, who have self-isolated, leaving the young and stupid to be exposed; and second, a slow-down in testing.

Neither of those reasons give one a reason to expect, if schools or colleges reopen with forced physical attendance, that there will not be a bad result.

Apologies for the lack of legal content here.

# posted by

C2H5OH : 8:53 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 9:13 AM

Rule making was designed to provide a sheen of legitimacy for bureaucracies enacting law by decree.

"Guidances" bypassing rule making, but given the effect of law, is unvarnished rule by decree.

Both executive exercises of legislative power are unconstitutional, but the least the courts could do is enforce the statutory terms of Congress's illegal delegations of its legislative power by reversing any "guidance." which conflicts with statute and rules.

# posted by

Bart DePalma : 9:26 AM

The death rate HAS dropped, a lot. Relative to April, which was the peak period.

I'd say a good deal of the drop is due to no longer forcing nursing homes to accept carriers. Almost half the Covid 19 deaths in the US were a result of that, you know, which is why most of the deaths occurred in a handful of states. Now that they've stopped that murderous stupidity, and, to some extent, burned through the elderly population, we're mostly seeing cases in people who can handle the virus better.

And, they may be young and foolish, but they aren't being stupid to take fewer precautions than the seriously vulnerable; The death rate from this virus is very dependent on your age and comorbidities. If you're not elderly or already sickly, it's just not that bad a disease. (Keeping in mind that no disease is good.)

Which is one of the reasons the schools should reopen, (but the teachers take precautions!) they are populated with the least vulnerable segment of society.

I'm not taking this lightly, I'm keeping it in context of the way we respond to influenza, which is NOT by putting our entire economy into lockdown.

# posted by

Brett : 9:28 AM

"Sheesh. I cite potential hardships, and this makes me determined to not even imagine them?"

"So, we have to ask, what exactly is the harm it is proposed that the students losing these visas are suffering?...Additional travel expenses? Possibly. But that's about it. And in many cases this might be countered by reduced cost of living."

As said, credibility shot.

# posted by

Mista Whiskas : 9:42 AM

" Congress's illegal delegations of its legislative power"

Of course there's no such thing at work.

# posted by

Mista Whiskas : 9:43 AM

"And, they may be young and foolish, but they aren't being stupid to take fewer precautions"

"(Keeping in mind that no disease is good.)"

I like it when he answers himself, unwittingly.

"I'm keeping it in context of the way we respond to influenza,"

Of course, as established, this disease is far more deadly and contagious.

"Which is one of the reasons the schools should reopen, (but the teachers take precautions!) they are populated with the least vulnerable segment of society."

Of course, none of these young people interact with more vulnerable populations...

# posted by

Mista Whiskas : 9:46 AM

Brett, in Minnesota, as in most of the populous states, nursing homes are serviced by companies which (as is standard corporate practice) go from one home to another, to another, etc., to do cleaning, supply medical care, and so forth. That was the vector by which the virus spread through the nursing homes, not because they were sent recovering COVID-19 patients.

Which is why the nursing homes led the cases, rather than lagged them.

Looking at the world statistics, it appears that, with good social distancing measures in place continually, the overall deaths due to COVID-19 will likely be somewhere around 600-1200 per million, depending on the overall health of the population (which is not that good, here in the USA.)

We know this, thanks to Sweden's failed experiment in handling the pandemic.

Currently that number is at 400. There's a lot of "fuel" that could catch fire if you force an intermingling of people.

Also, death is not the only long-term damage caused by this virus. This is only starting to become obvious -- but it should be understood when one is throwing around claims about how there's no danger in reopening.

Also, schools and colleges are not the "entire economy"...

# posted by

C2H5OH : 9:56 AM

"Also, schools and colleges are not the "entire economy"..."

No, they're not. But here in South Carolina, they've just released a Rube Goldberg plan for reopening K-12, where each week will potentially have a different number of days of in person instruction, depending on what the school system thinks things are like that week. The economic impact of that on two earner families is going to be chaotic and enormous. Either one of the earners will have to quit, or the kids will be spending several days a week in daycare, ironically enhancing spread by exposing them to different children than they see in class.

It's not going to be too bad in my household, only because I have VERY flexible hours, so long as I get my work done. If I have to work 7am-4pm one day, and 4pm-midnight the next, I can. But not everybody has that luxury.

# posted by

Brett : 10:07 AM

"thanks to Sweden's failed experiment in handling the pandemic."

Remember Bircher Bart touted Sweden as a model in our discussions here previously.

# posted by

Mista Whiskas : 10:11 AM

"The economic impact of that on two earner families is going to be chaotic and enormous."

I actually agree with this. I just think, on the other hand, a further or second wave of this mess will also have an economic impact that will be chaotic and enormous. I mean, apart from the illnesses, if cases and deaths increase as a result of school normalcy people are going to stop going out and engaging in economic activity on their own.

I often accuse our Birchers of 'black or white' thinking, but I'm actually being too charitable. It's actually 'white or white' thinking, they pick a side and don't think much about the values on the other side. I think they like the perceived surety of simplistic, unnuanced thinking. Or, more likely, some conservative source has told them what today's answer is, and that's good enough for them.

# posted by

Mista Whiskas : 10:16 AM

I appreciate the discussion by the OP on the matter.

The overall way I look at this is something like this. A relative, like many people, had a semester or whatever abroad in college. Actually going to classes is only part of the education there. So, foreign students can very well in a comprehensive way "go to school" here while having online classes. As cited, they still might have access to brick and mortar resources at the campus. They also might have access to other places such as local libraries and so forth useful for education. And, they can interact with fellow students offline. It has been shown that online learning is flawed and in person learning is ideal. One can have online classes and still have various in person learning (including with fellow students) all the same.

The situation now with remote learning the rule (the rules for the upcoming semester is mixed and in flux) makes the controversial move here even less justified. As a policy, it makes some degree of sense to require foreign students to have some baseline requirements though again in person classes isn't necessarily a good rule. This is especially the case with 21st Century options. But, it is especially not good now. There surely are a decent segment of students with special concerns especially such as someone with a disability or whose life back home is iffy & an education visa is appropriate as compared to maybe someone else.

As to the challenge, I see it as a mix of academic freedom and due process. The latter is both procedural (and agency law could factor in there) and substantive, which would be concerns about some animus involved particularly though not only that. Of course, in theory, Congress can change the law. But, two houses cancelling each other out especially with Mitch leading one, gives a lot more discretion to the executive here.

# posted by

Joe : 10:25 AM

This comment has been removed by the author.

# posted by

Joe : 10:25 AM

Dear the Usual Balkinization Commentariat: Did you not notice that Mark requested comments "directed primarily at clarifying the relevant legal arguments and, specifically, at correcting any mistakes [he's] made"? This thread is a prime example of why most of us have regrettably closed comments for our posts on B'zation. If you want to continue your usual, predictable debates amongst yourselves, perhaps you should set up a dedicated medium for that. Otherwise, our comments section here becomes completely unusable for people who wish to engage substantively on the legal questions raised in our posts ... which means that effectively we don't have a working comment function, which is a shame.

Thanks.

# posted by

Marty Lederman : 10:27 AM

Professor Lederman, I certainly take your point, and I was mindful of Professor Tushnet's admonition. The principle of 'but they started it' is an often silly and immature one and so I hate to invoke it by saying my comments have simply been replies to others here...However, I think that, as I argued in my 'empathy' post, what I've been discussing here does have, at the least, implications for the 'law' in this case. Whatever the ultimate legal decision here it will have to deal with 1. the hardships that might be inflicted on parties and 2. more specifically, the COVID situation both here and in the larger world. A judge that has bizarre and un-empathetic views on both or either points is going to generate bizarre law on this topic. See recent opinions by, for example, Justice Kavanaugh (the California churches closure case), the Wisconsin Supreme Court (both the election and restrictions decision), etc.,.

In short, you may not be interested in the revolution, but the revolution is interested in you. I hate to be such a legal realist, but right-wing dismissals of aliens hardships and COVID challenges are very likely to figure in legal decisions surrounding this (and other) cases, and so I humbly submit they are germane.

# posted by

Mista Whiskas : 10:37 AM

Brett,

The data on your link is not just noisy, it is plainly incomplete.

It is important to note that it can take several weeks for death records to be submitted to National Center for Health Statistics (NCHS), processed, coded, and tabulated. Therefore, the data shown on this page may be incomplete, and will likely not include all deaths that occurred during a given time period, especially for the more recent time periods.

Still, elsewhere, the CDC says there were 991 deaths yesterday.

The 960 number I cited came from Worldometer.

Notice that the cumulative death totals are reasonably close to each other, so I'm inclined to take the figure of a little under 1000 as a decent estimate.

# posted by

byomtov : 10:39 AM

To put it another way, as Professor Tushnet indicated, this case has, arguably, strong similarities to the recent DACA SCOTUS case. A big part of that, and maybe this, is 'reliance interests.' And so a great part of the discussion here has been about what those interests might be (i.e., what are foreign students losing if they have to go home for online instruction?).

However, ultimately this is your and Professor Tushnet's forum. If my posts have offended him and you I sincerely apologize and will refrain. I value your and Professor Tushnet's work greatly, I learn from it and it inspires me to learn otherwise, and I meant not to wrong either of you.

# posted by

Mista Whiskas : 10:46 AM

FYI: Know the Rules: Online and Distance Learning Classes, July 13, 2012

"Many U.S. colleges and universities offer online and distance learning classes. While these classes are convenient and offer flexibility, it is important for F and M students to know the rules about these types of classes to maintain status.

An online or distance learning class is a class that does not require a student’s physical attendance for classes, exams or other purposes integral to completion of the class. Even though a school may offer these classes, regulations give strict limits to the amount of online or distance learning an F or M student must follow:

An M-1 student may not count online or distance education courses toward a full course of study.

An F-1 student may only count one online or distance education course without the physical oversight of a school employee (or the equivalent of three credits) toward a full-course of study per academic term. F-1 students may be eligible to take more than one online class to maintain their status as long as the class is physically proctored or monitored by a school employee.

English language program students may not count online or distance education courses toward a full course of study."

That's the standing regulation, it has been for most of a decade, it didn't come out of the blue.

Note that the administration has only partially withdrawn their discretionary waiver: They're allowing a lot more distance learning to count towards qualifying for an education visa, as long as there is at least SOME in person study involved.

As I said initially, anybody pursuing a course of study that involves labs should be safe. And it would appear fairly easy for educational institutions to maintain a sufficient level of in person study to keep their foreign students in compliance.

What threatens the foreign students is actually the universities' determination to get rid of all in person classes.

# posted by

Brett : 10:47 AM

Professors Tushnet and Lederman,

My apologies for rising once again to the bait.

Still, I qualify that apology a bit by agreeing with MW that, if factual matters and the weighing of harms against benefits, are relevant, then they are worth discussing.

Still, I suppose I have to agree that the issue raised was purely a technical legal one, so I guess those things are not relevant, so I should not have commented.

# posted by

byomtov : 10:48 AM

"thread jacking" is often a problem on blogs & somewhat hard to totally avoid but Mr. W. has a crafty argument that "primarily at clarifying the relevant legal arguments" very well might not be violated in spirit here. But, since the person here tends not to allow comments, a stricter application very well might be warranted.

# posted by

Joe : 11:36 AM

MT: What did the prior guidance mean in referring to “the duration of the emergency”? The complaint assumes that “the emergency” refers to the presidential declaration of a national emergency in connection with the pandemic as a whole. It seems to me, though, that a plausible, and maybe even reasonably strong, case can be made the “the emergency” referred to the precise circumstances of a mid-semester change in programming that threw visa-holders out of compliance with the “full course of study” rule as interpreted. But, if “the emergency” refers to the pandemic as a whole, my instinct is that the DACA-decision argument is a pretty good one.

Does the federal rule making statute have an emergency rule making provision?

I do not practice federal administrative law, but I am prepared to defend any local criminal enforcement of COVID decrees. Our governor illegally claimed the power to decree law based, in part, on the Colorado emergency rule making authority, which is solely vested in the Department of Health. In any case, the terms of our state emergency rule making provision would not extend to university matters such as this.

Thus, I suspect the bureaucracy acted through a "guidance" because it has no statutory power to enact an emergency rule because Congress did not grant such power or the granted power does not extend such situations.

# posted by

Bart DePalma : 12:43 PM

Well, and I'd assume that, by the time they'd fully complied with the APA, the pandemic would have been over.

# posted by

Brett : 5:51 PM

Brett:

Congress could enact the necessary law this week.

# posted by

Bart DePalma : 6:47 PM

which means that effectively we don't have a working comment function, which is a shame.

Thanks.
# posted by Blogger Marty Lederman : 10:27 AM

Congrats on noticing this after only about 10 years! Hopefully it won’t take another 10 years for you to figure out who is causing the problem.

# posted by

Bartbuster : 8:07 PM