Cnn
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Shortly after the Trump administration announced that it reduced billions of dollars in subsidies at Harvard University after breaking the discussions on anti -Semitism on campus, the Ivy League Institution made the largest weapon in the federal legal arsenal: the first amendment.
“The government’s attempt to force and control Harvard’s contempt … The fundamental principles of the first amendment,” said Harvard’s trial.
But while quoting the best known guarantee of the Declaration of Rights is special attention – both for the judges and for the general public – a more arcanic question is at the center of most of the 51 pages of the trial: Harvard’s complaint, Trump, Trump’s executive power does not follow the federal rules to modify key government policies.
In particular, the law on administrative procedure “obliges this Court to hold illegal and to cancel any final action by the agency which is” arbitrary, capricious, an abuse of discretionary power, or otherwise not in accordance with the law, “said Harvard in his trial.
It was only after his interviews with Harvard collapsed that the White House frozen $ 2.2 billion supplying a large part of the school research, a frightened response that reflects the rate of scan changes on the problems of immigration policy and price to the federal endowment by an administration which prefers rapid and unilateral action to deliberation and compromise.
“No administration has done anything before precisely because there are procedures in place to restrict this type of extreme thing,” a professor of administrative and constitutional law told CNORGETOWN and YALE.
The question of whether the government can impose large requirements on Harvard as a prior condition for funding seems to be the last controversy of Trump inevitably heads to the Supreme Court. And while predicting what the High Court will do, it is generally the race of a fool, Georgetown’s law professor Steve Vladeck, thinks that the Harvard affair is strong.
“This is not a controversial proposal that the government is not allowed to say in exchange for this money – that we will give you to finance medical research, to finance new scientific methods, etc. – you only need to teach the courses we tell you to teach or you only have to hire the administrators that we tell you to hire”.
The law on administrative procedure, known as APA, was adopted following the Second World War, while the government had trouble managing the major expansion of federal agencies under President Franklin D. Roosevelt.
“Congress adopted the APA to protect itself against irrational, emotional and unsubstantiated decision -making,” said Super. “Its objective is not to push a particular program substantially, but to ensure that the executive power follows the law and examines the facts before it acts.”
APA does not need an hearing for each decision taken by a government agency, but it says that agencies should not suddenly modify procedures without reason.
Harvard maintains that the suspension of federal funding for medical and scientific research as a means of fighting anti -Semitism makes no sense and does not revers the official procedures to which they expected without warning.
“For decades, Harvard is based on the well -established process for federal financial assistance in its budgeting and financial planning, in particular with regard to staff, infrastructure, purchase of facilities and equipment and long -term investment decisions,” the university said in his trial.
While the Trump administration affirms that Harvard has enabled anti-Semitism to flourish in violation of the civil rights law, the University affirms that it already responds to the concerns of Jewish students and teachers by tightening its ban on camps and other protests which disrupt student activities, the “doxing” a violation of its anti-alarm and anti-horns “.
In addition, Harvard says that the civil rights law forces the government to give it a chance to repair any violation before withdrawing federal money.
“The agencies must follow their own procedures. If they say they will give you a warning, they must give you a warning,” said Super. “They cannot say:” Well, we are crazy, so we will get around the warning. “”
In his trial, Harvard maintains that the Trump administration did exactly that: “They first expressed a freeze on research financing (without a process or the possibility of voluntary compliance) and used this frost as a lever to negotiate,” wrote Harvard lawyers. “Such action is categorically illegal and contrary to the statutory authority.”
Indeed, the university has learned that the billions of federal funds would be frozen at the same time as everyone did – in the last 26 words of a press release from a page of the government’s working group to combat anti -Semitism, he said. The press release was published on the same day, Harvard president Alan Garber announced that the school would not accept the administration’s letter of request.
Lawyers of the Trump administration have not yet provided any response to the allegations in the trial, but the press secretary of the White House, Karoline Leavitt, said on Tuesday: “The president clearly indicated that it was Harvard who put himself in the post of losing his own funding by obeying federal law, and we expect all colleges and universities Federal.
Harvard’s decision to challenge the financing freezing before the court seemed to take the administration by surprise. A White House official examined the back and forth with Harvard who is part of a negotiation, they told CNN, and the Secretary of Education Linda McMahon said in a CNBC interview: “We would like to be able to move forward with them and other universities.”
But with the carrot, the head of the White House continued to brandish a stick at Harvard.
“They want to remain the desire of the world with regard to research and science and the university world, and they can only do it if they work with this administration,” the manager told CNN.
Harvard is far from being the only group affected by the Trump administration orders to mention the APA during the response before the court. More than 160 proceedings cited alleged violations, complaints against international students facing expulsion and dismissed federal workers to access transgender students to sports.
The proceedings contesting the finest points of federal law often take years to resolve, but Harvard asks a judge to accelerate the process, affirming that time is petrol to avoid harming their programs.
“While Harvard diligently seeks to mitigate the effects of these financing cuts, critical research efforts will be reduced or even licensed,” the university lawyers wrote on Wednesday in a judicial file asking for an accelerated hearing.
With so many prosecution pending, the question of the quantity of the APA can limit the White House is almost sure to be decided by the Supreme Court. A first decision of the judges indicated that, despite sympathy to the challenges based on the APA in the past, citing that the law is not a guarantee of success.
Earlier this month, they blocked an order from the lower court to delay the expected termination of the Trump administration of $ 600 million in teaching subsidies to the States, saying that APA does not necessarily give the courts the power to force the government to pay money.
“The government should succeed in showing that the district court lacked jurisdiction to order the payment of money under APA,” said the unsigned order for the conservative majority.
It was a 5-4 decision, with conservative judge John Roberts with the three liberal judges of the Court, a split which makes the decisions future in similar cases even more difficult to predict.
The question at the heart of the teacher subsidy affair – States arguing to retain subsidies on diversity, equity and inclusion policy was equivalent to a broken promise of the government rather than a dispute from the first amendment – is different from Harvard.
But that shows the Rocky Road anyone who defyed the administrative decisions of the White House could be confronted, including perhaps the University of Columbia, which concluded its own agreement last month on federal funding linked to political requirements to anti-Semitism.
However, the defenders of education say that it is worth facing the legal uncertainty to draw a line in the sand.
“Harvard absolutely did the right thing. They made a very courageous decision, and more importantly, I think, they made great arguments to explain why this type of federal surpassing is beyond the pale,” said the President of the Education of the US Council, Ted Mitchell.
And the extreme speed of actions taken against Harvard – the shameless rhythm of Trump prices – is probably the government’s legal defeat, said Super that he believed.
“These actions are so sloppy that I do not see any serious chance of surviving,” he said.
Katelyn Polantz de CNN, Tierney Sneed and Betsy Klein contributed to this report.
