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The NYT wants you to know that Harvard has "no way out." I'm sure Harvard University with its 53.2 billion dollar endowment is going to start having trouble attracting researchers:
I suspect they're scaring their readership to rack in the clicks. The article is being embraced by Rightist influencer people eager for confirmation of their "victory." They're COOKED! Back in reality, the Democrats will likely take back the Presidency in 2028, if not then then very likely by 2032. It will eventually dawn on these people that Harvard remains massively prestigious while nobody knows or cares about Fred's Car Wash in Des Moines Iowa.
I hope Harvard stands firm and puts the admin in its place. It's one thing to be against Affirmative Action but a completely different one to oppose academic independence say you want MAGA leaning professors in the physics department.
Fight Fiercely Harvard!
In some ways the precedent for the administration was set long ago. The only real question is whether the executive can deem Harvard, of all institutions, of similar legal stature to Bob Jones University. They may have the text of the law on their side: Congress not infrequently writes "If the Attorney General decides...", presumably giving her a lot of discretion in this case, subject to its other rules about capriciousness.
Alea iacta est, but I know not which way the legal cards will fall in this case.
Over time? Almost certainly against Harvard, especially after the current fiscal year ends in about 3 months.
At the end of the day, Harvard's relationship with the US government runs through the regulatory state, not by statute. There is no law that says Harvard must receive funds, or even that- once approved- Harvard cannot have funds taken away if it is found to no longer meet requirements. Congress (and most legislatures in general, even outside of the US) by design gives the regulatory state significant deference to who, how, and whether to give out grants and funds and determinations to those effects. As this is a pretty well established federal government power, even injunction-inclined judges are working against a dynamic where other parts of the judiciary do not go along with a 'well, it's illegal when Trump does it' approach.
What limits the ability of even sympathetic judges to freeze the status quo with injunctions is that the US government largely spends year-by-year, or the ability to compel future actions.
Even when litigation can successfully freeze currently granted expenditures, there is no legal basis for courts to require future funding. Funding, after all, does not derive from the executive branch in the first place. It derives from the Congress, which puts its own terms and conditions, which include, well, executive discretion on approving grants on a going-forward basis.
Similarly, an injunction doesn't really work on, say, issuing student visas. Harvard can request a freeze on current student visas, to try and protect what it has, but Harvard cannot demand future visas still be granted. For one thing, Harvard doesn't even know who those future visa-holders even are. But more importantly is that in pretty much every country in the world visa issuance is a 'may', not 'must' responsibility of the government, and specifically its embassies. Embassies in turn have considerable discretion when issuing visas, such as if they have reason to believe the visa recipient would be able to keep their status inside the united states... say, for example, that they are requesting a visa on the basis of a specific university that the government is going through a process of invalidating for student visas.
It doesn't even matter if there is a judicial injunction stopping that from being affirmed for the moment. The visa-issuance discretion isn't on the basis of 'the university is ineligible'- it can be issued on the basis of reason to believe that the university will be ineligible during the student's time.
As a result, the current litigation is about stanching the bleeding (losing current grants / foreign students who already have visas), but the real issue is the lack of inputs over a longer term (lack of incoming grants / foreign students).
Over time, sure. But Harvard may well win by hanging on until the next administration reverses course.
If the next administration has to reverse course for Harvard to win, that is simply defining away Harvard's loss.
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