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Column: Sending International Students Home – News – MetroWest Daily News, Framingham, MA

 


The solution is simple. The Department of Homeland Security must either abandon its plan or announce, as soon as possible, that it will allow a suitable period for public comment. This is what a democratic government does.

Columns share an author’s personal perspective and are often based on facts in newspaper reporting.

Does President Donald Trump want to deport all those who are not American citizens?

Sometimes it seems so. His administration recently announced that it could send home international students to colleges and universities that choose online learning in the fall, in an effort to reduce the risks associated with coronavirus pandemic.

The announcement is cruel. Stupid also stupid.

It is cruel to those students, many of whom now live in the US, and who are suddenly threatened with deportation.

It’s stupid because one of the biggest points of the US is its unparalleled institutions of higher education, which attract the best students in the world. Many international students return to their home countries as friends of the U.S. and its people, persistently appreciating America’s best traditions and values.

Many of them end up in leadership positions in the country, where they work closely and well with Americans. If you were to be an enemy of the US and aim to weaken it and reduce its impact, you would be cheering to prevent international students from studying here.

No wonder the new rule has prompted a lawsuit filed Wednesday by Harvard University and the Massachusetts Institute of Technology. (1)

But in some ways, the most fundamental problem lies elsewhere. The Department of Homeland Security announced its new policy for international students without using a process that protects against cruelty and folly: public notice and comment.

On the origin: The Administrative Procedure Act, adopted in 1946, is a kind of Constitution for the regulatory state, complete with a draft law on rights. A key provision states that before an agency can issue a final rule – on highway safety, fresh air, education, air travel – it must give prior public notice and a comment opportunity (usually consisting of at least 60). days).

The announcement-and-commentary of the rules has been described as the greatest invention of modern government. While it’s an exaggeration, it’s really great. Reduces the risk of arbitrariness and authoritarianism. He tells the country’s most powerful agencies: You work for people, and not the other way around. You must first listen to them.

Public officials can work hard for a rule that includes (say) food safety. But they can lose something important. Farmers in Ohio or Florida may know something that the Food and Drug Administration has overlooked – about the impact on the real world, about preferable alternatives, for unwanted consequences.

Again, public officials learn from the public comment. Sometimes they learn that their initial plan was a terrible idea – and they pull it off. Sometimes they learn that there is a better way to achieve what they want – and they choose it instead.

The Department of Homeland Security has a lot of authority over immigration and immigrants, and can do a lot to influence the opportunities and obligations of international students. However, he must comply with the Administrative Procedure Act, which means that he must usually invite a comment.

To be sure, the Act creates some exceptions to that requirement. In emergencies, for example, federal agencies can act immediately.

But let’s ask the legal question and ask about an honest process, and how agencies should act in a democracy. There are many colleges and universities in the US, and they have very different situations.

Some of them can certainly be opened during the fall. Some of them just can’t. Some do not have facilities that would allow social distancing. Some are poorly equipped to provide an online learning program. Some are in a strong position to provide such a program. Some are in areas where COVID-19 is rampant (and where many people are dying). Some have many international students, many of whom are now in the U.S.

One of the goals of the Trump administration seems to be to pressure colleges and universities to open in the fall.

If this is the goal, and if it is legally acceptable for the Department of Homeland Security to use its power over immigration to promote it, the question remains: With what consequences, exactly, and at what cost, exactly? The notification and comment process has been created to get answers to such questions.

The solution is simple. The Department of Homeland Security must either abandon its plan or announce, as soon as possible, that it will allow a suitable period for public comment. This is what a democratic government does.

(1) I am a faculty member at Harvard, but have not advised or participated in the lawsuit in any way. This column focuses on issues of politics, not law.

Cass R. Sunstein is an Opinion columnist in Bloomberg. He is the author of The Cost-Benefit Revolution and co-author of Nudge: Improving Health, Wealth and Happiness Decisions.

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