Does President Donald Trump want to deport everyone who is not an American citizen?
Sometimes it seems that way. His administration recently announced that it may send home international students at colleges and universities that choose online learning in the fall, in an effort to reduce the risks associated with the coronavirus pandemic.
The announcement is cruel. It’s also stupid. It is cruel to those students, many of whom are now living in the US, and who are suddenly threatened with deportation.
It is stupid because one of the greatest US strengths is its unparalleled institutions of higher education, which attract the world’s best students. Many international students go back to their own countries as friends of the US and its people, keenly appreciative of the best American traditions and values. Many of them end up in positions of leadership at home, where they work closely and well with Americans. If you were an enemy of the US, and aimed to weaken it and to diminish its influence, you would be cheering steps to prevent international students from studying here.
It’s no wonder that the new rule has prompted a lawsuit, filed by Harvard University and the Massachusetts Institute of Technology.
But in some ways, the most fundamental problem lies elsewhere. The Department of Homeland Security announced its new policy on international students without using a process that guards against both cruelty and stupidity: public notice and comment.
For background: The Administrative Procedure Act, enacted in 1946, is a kind of Constitution for the regulatory state, complete with a Bill of Rights. A key provision says that before an agency issues a final rule — on highway safety, on clean air, on education, on air travel — it has to give the public advance notice and an opportunity for comment (usually consisting of at least 60 days).
Notice-and-comment rule-making has been described as the greatest invention of modern government. While that’s an exaggeration, it’s genuinely great. It diminishes the risk of arbitrariness and authoritarianism. It tells the nation’s most powerful agencies: You work for the people, not vice versa. You have to listen to them first.
Public officials might work hard on a rule involving (say) food safety. But they might miss something important. Farmers in Ohio or Florida might know something that the Food and Drug Administration has overlooked – about the real-world impact, about preferable alternatives, about unintended consequences. Time and again, public officials learn from public comment. Sometimes they learn that their original plan was a terrible idea — and they withdraw it. Sometimes they learn that there’s a better way to achieve what they wanted — and they choose that instead.