Last week, after President Trump issued a National Security Presidential Memo that targeted groups for heightened federal security based on their ideologies, I wrote:
A missive from the most powerful man in the world carries so much force that it is, inevitably, a blunt instrument. When the president uses his pen to take aim at anything, it will cause a chilling effect. […] What will the overreactions to this new memo look like?
Enter Texas Attorney General Ken Paxton, who issued a press release on October 7 announcing that his office, “building on President Trump’s bold actions,” had “launched undercover investigations into various groups affiliated with left-wing political violence known to be operating in Texas.”
The release gives three examples of the kind of violence Texas is looking to root out: A shooting at an ICE facility in Dallas, a shooting at an ICE facility in Alvarado, and the assassination of Charlie Kirk. Of those three incidents, two of the attackers — Kirk’s assassin and the Dallas shooter — appear to have been working alone, at least as far as anyone knows today.
The Alvarado shooting, which has already led to at least 15 arrests, clearly seems to have involved a coordinated group. Indeed, infiltrating that group might have prevented the attack, which would be a good reason to infiltrate such groups. But that’s not what the press release announces.
Instead, the attorney general’s announcement shares the same problem as Trump’s memo. Namely, it focuses on targeting an ideology rather than an action. It’s not unlawful to identify as antifa because we don’t criminalize ideologies in this country, for good reason. Freedom means very little if it doesn’t encompass the freedom to hold the ideas many of us believe to be wrong.
If Texas law enforcement tries to infiltrate every group that identifies as antifa-adjacent, it’s going to be infiltrating a lot of knitting circles, vegan clubs, and faculty groups (including a FIRE client), the vast majority of which would catch the vapors if forced to watch a video of violence, let alone contemplate performing it with their own hands.
And even if they had the manpower, it would still be unlawful to target these groups simply for their beliefs. So presumably, law enforcement is going to narrow its scope to focus on a particular kind of antifa-aligned group — the kind that is actively planning to commit violent acts.
But if law enforcement is capable of identifying which groups want to commit violent acts, then why bring ideology into it?
The legendary and well-respected law enforcement agencies in the state of Texas would, I am sure, try to stop a far-right terror attack just as soon as they would a far-left terror attack. So what’s the point of targeting an ideology in this press release?
It makes the actions that follow constitutionally suspect by suggesting an unconstitutional motive: the targeting of political opponents. There’s no good reason to do it and a really good reason not to do it: If a group is targeted unlawfully, the evidence might be inadmissible, if it is, in fact, engaged in criminal activity.
The only reason to bring ideology into it, as far as I can tell, is the inspiration of the president’s memo. A blunt instrument, indeed.
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Dive Brief:
Three leading Virginia state senators this week urged University of Virginia’s top officials to immediately reject the Trump administration’s proposed higher education compact and threatened the institution’s state funding if they signed on.
In an Oct. 7 letter to UVA leaders, Democratic state Sens. Scott Surovell, L. Louise Lucas and Mamie Lockecalled the federal government’s conditions “an unprecedented federal intrusion into institutional autonomy and academic freedom.”
Agreeing to those terms would invite further federal interference at the university, the trio said, citing the Trump administration’s recent ouster of UVA’s president.If UVA agrees to the compact, they warned, the institution will face “significant consequences in future Virginia budget cycles.”
Dive Insight:
The Trump administration’s compact would offer UVA, along with eight other research universities, preferential access to federal research funding if they agree to its wide-ranging and unprecedented conditions.
Some of those terms are straightforward, such as a five-year tuition freeze, a standardized testing requirement for admissionsand a 15% cap on international students’ share of undergraduate enrollment.
Others are less clear cut, including required public audits of the viewpoints of employees and students, institutional neutrality on most political and social events, and a commitment to changing — or ending — institutional units that purposefully “punish” or “belittle” conservative ideas.
All of the proposed conditions of the agreement “are fundamentally incompatible with the mission and values of a premier public research university,” the lawmakers told UVA Interim President Paul Mahoney and Rachel Sheridan, head of the institution’s governing board.
For instance, the state senators raised alarms about one element of the compact that would bar signatories with large endowments from charging tuition for students enrolled in “hard science programs.”
That would force students in humanities and social sciences “to subsidize” those enrolled in STEM programs, representing “a bizarre federal intrusion into institutional financial planning that devalues essential fields of study,” they wrote.
“This is not a partnership,” the lawmakers said. “It is, as other university leaders have aptly described, political extortion.”
Surovell, Lucas and Locke wield significant legislative power as the state Senate majority leader, president pro tempore and chair of the Senate Democratic Caucus, respectively.They underlined this influence in their letter, vowing “to ensure that the Commonwealth does not subsidize an institution that has ceded its independence to federal political control.”
The three senators pointed specifically to the forced departure of former UVA President Jim Ryan,who abruptly resigned in June amid federal pressure to step down over the university’s diversity efforts during his seven-year tenure.
In his announcement, Ryan said he wouldn’t fight back against the Trump administration and attempt to keep his job because staying would cost UVA research funding and student aid and hurt its international students.
Federal officials ousted Ryan, the state senators said, “not for any failure of leadership, but because they disagreed with the University’s approach to diversity and inclusion.” They categorized Ryan as a successful leader who was made into a political sacrifice — one that didn’t stave off further interference.
“President Ryan’s resignation was meant to spare the University from federal retaliation, yet here we are again, facing even more aggressive demands on institutional autonomy,” they told UVA leaders. “The lesson is unmistakable — appeasing this Administration only emboldens further encroachment.”
UVA faculty similarly called for institutional leaders to rebuke the compact. In a 60-2 vote, the university’s faculty senate approved a resolution on Oct. 3 whose preamble called the proposal dangerous to UVA and a likely violation of state and federal law.
The Trump administration gave the nine universities until Oct. 20 to offer feedback on the compact and until Nov. 21 to sign the agreement.
Brian Sandoval, former Republican governor and president of University of Nevada at Reno, is standing up for the university’s undocumented student support program, despite threats of an investigation from the federal government.
Photo illustration by Justin Morrison/Inside Higher Ed | Cheriss May/NurPhoto/Getty Images | Brycia James/iStock/Getty Images
Centers and programs for undocumented students are caught in a politically precarious moment after the Department of Justice called for an investigation of the University of Nevada at Reno’s undocumented student services. Immigrant students’ advocates say the move marks an escalation in the Trump administration’s ongoing crackdown on higher ed benefits for these students. And they worry campus programs supporting undocumented students might pre-emptively scale back or close altogether.
In a letter late last month, DOJ officials directed Education Secretary Linda McMahon to investigate the Nevada university over UndocuPack, its support program for undocumented students.
According to the letter, the DOJ had received reports of the university’s “efforts to assist illegal immigrants” by providing referrals to on- and off-campus resources, student aid, and academic and career support, including helping students find “career opportunities that do not require applicants to provide a Social Security Number.”
“We are referring this matter to the Department of Education to investigate whether UNR is using taxpayer funds [to] subsidize or promote illegal immigration,” the letter read.
The U.S. Department of Education did not respond to a request for comment; Inside Higher Ed received an automatic out-of-office message citing the government shutdown.
But UNR is pushing back. Brian Sandoval, a former Republican governor of Nevada and the university’s first Hispanic president, responded with a forceful defense of the program.
He stressed to students and staff that the UndocuPack program offers supports to all students, regardless of citizenship status, and uses no federal funds. He also emphasized that several state-funded scholarships don’t take immigration or residency status into account; the university doesn’t dole out state or federal aid to anyone ineligible.
“The University has remained in compliance with federal and state law, as well as the Nevada and United States Constitutions regarding adherence to federal and state eligibility requirements for undocumented students for federal aid and scholarships,” Sandoval wrote. “In addition, we have made good, and will continue to make good on our commitment in ensuring a respectful, supportive, and welcoming environment on our campus where all our students have access to the tools they need for success.”
He said the university plans to respond to the proposed investigation “through the appropriate legal channels.”
A ‘Test Case’
The threat to UNR brings fresh worries for undocumented students’ advocates, who say it’s the latest in a string of federal efforts to curb public higher ed benefits for such students.
The Justice Department has already sued five states over policies allowing undocumented students to pay in-state tuition, successfully quashing state laws in Texas and Oklahoma after their attorneys general swiftly sided with the federal government. Over the summer, the Education Department announced it would investigate five universities for offering scholarships intended for undocumented students, claiming such programs violated civil rights law. The department also ended Clinton-era guidance that allowed undocumented students to participate in adult and career and technical education programs in response to Trump’s February executive order demanding that “no taxpayer-funded benefits go to unqualified aliens.”
Diego Sánchez, director of policy and strategy at the Presidents’ Alliance on Higher Education and Immigration, said going after UNR’s UndocuPack program is “part of a broader effort by the administration to intimidate colleges and universities that seek to serve undocumented students.” But it also takes the campaign a step further, “targeting any form of campus support for undocumented students,” including academic and career services. “It’s definitely a pattern of escalating attacks via different avenues of law.”
The DOJ’s letter cites the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which bars undocumented immigrants from many public benefits, but Sánchez maintains that “no court has ever interpreted PRWORA to bar universities from offering support offices, mentoring resource centers for undocumented students.”
Those kinds of supports for undocumented students exist at colleges and universities across the country. A 2020 study found at least 59 undocumented student resource centers on campuses nationwide, mostly in California but also in other states including Arizona, Colorado, Florida, New Jersey, Oregon, Texas, Utah and Washington.
Sánchez worries that colleges and universities could modify or scrap perfectly lawful programs out of fear after seeing the DOJ chide UNR for such common supports. He also expects the Trump administration to target more programs like UndocuPack.
UNR feels like “a test case,” he said.
Gaby Pacheco, president and CEO of TheDream.US, a scholarship provider for undocumented students, said other colleges and universities with undocumented student supports are already weighing what to do in response to the developments in Nevada.
“Do we duck and hide and lay low so that we don’t get picked on, or do we stand together with others and potentially become a target of this? It’s a question that a lot of people and institutions … are asking themselves,” Pacheco said.
She worries canceling or minimizing undocumented student support programs will send those students a message—“that they don’t belong.” And she doesn’t believe trying to lie low or scale back programs will deflect federal attention.
“This is just month nine into this administration. We still have a full three more years to go,” she said. And the administration seems like it plans to “continue full force until, in essence, there are no policies left where undocumented students have access to higher education.”
The plaintiffs, which include the American Association of University Professors, UAW International and UAW Local 481, allege in the lawsuit that numerous researchers and academics will lose their jobs as a result of their institutions not being able to afford the new fee. (An H-1B visa previously cost $2,000 to $5,000.) Universities, along with national labs and nonprofit research institutions, were also exempt from the annual cap on the number of new visas, and it’s unclear whether the new fee will apply to higher ed.
The New York Times reported that this lawsuit “appears to be the first major challenge to the new fee.”
The fee, the complaint states, “will result in significant and potentially catastrophic setbacks to research that benefits the American public and ensures the United States remains a leading source of innovation and expertise. For example, the fee will likely result in sharp cutbacks in the employment of highly talented foreign workers and severe setbacks for university research, graduate programs, and clinical care, compounding an anticipated shortfall of 5.3 million skilled workers over the next decade.”
The lawsuit highlights several specific examples of researchers whose work would be interrupted by this change, including an unnamed plaintiff who studies conditions and diseases that cause blindness.
“Her departure will set back the crucial research she is conducting, disrupting the lab’s ongoing work and ability to secure future research funding, preventing her department from getting any future funding through her, and potentially delaying the availability of treatment for the conditions that are the focus of her research,” it states.
The plaintiffs note in the lawsuit that the $100,000 fee “applies even where workers are already lawfully present in the United States under, for example, a student visa or another immigration status, and are seeking to change to H-1B status.”
They argue in part that the president does not have the statutory authority to increase the fee for H-1B visas. They are asking the judge to nullify the $100,000 fee and allow H-1B visas to be processed as they were previously.
Employees who had the messages put on their accounts told Inside Higher Ed that it was “wild to see your name attached to a message that you had nothing to do with.”
J. David Ake/Getty Images
The American Federation of Government Employees, a union representing federal workers, sued the Trump administration Friday, challenging the automated out-of-office email responses it placed on many employees’ email accounts when the government shut down.
The message, which was placed on the email accounts of all furloughed staff members without their consent, blamed Democrats in the Senate for causing the shutdown.
AFGE’s members, who will be represented by the legal firms Democracy Forward and Public Citizen Litigation Group, argue in the complaint that the message Trump attached to their email accounts is “partisan political rhetoric.” Not only does it violate the Hatch Act, a federal law that requires nonappointed government staff to stay nonpartisan, but it also violates the First Amendment rights of the individual employees, they argue.
“The Trump-Vance administration is losing the blame game for the shutdown, so they’re using every tactic to try to fool the American people, including taking advantage of furloughed civil servants,” Skye Perryman, president of Democracy Forward, said in a news release. “Even for an administration that has repeatedly demonstrated a complete lack of respect for the Constitution and rule of law, this is beyond outrageous. The court must act immediately to stop this flagrant unlawfulness.”
Another one bites the dust. That’s what the headline should be this week.
On Monday, YouTube agreed to pay $24.5 million to President Trump and several others, settling a lawsuit over YouTube’s suspension of their accounts following the events at the U.S. Capitol on Jan. 6, 2021.
This marks the third major social media company to capitulate to the Trump administration this year. In June, Meta settled for $25 million, followed by X, who agreed to a $10 million settlement less than a month later. Unfortunately, this is in addition to media companies like Paramount Global, who bent the knee to Trump for $16 million this past July, and ABC News, who settled for $15 million late last year. That’s also not to mention the universities that caved after government pressure and bullying. Columbia, for example, agreed to a $221 million settlement with the Trump administration in July. And Harvard, after a long fight, is also reportedly approaching a $500 million settlement this week.
If you care about free speech, this should really piss you off. These companies and institutions traded principle — and, most importantly, the opportunity to stand on their First Amendment rights — for profit and short-term peace of mind.
How do we know? Because in many cases, such as that of Paramount Global, the settlement was a thinly veiled prerequisite to FCC approval of a major — and lucrative — business deal the company was after.
We also know it because many of the lawsuits themselves were, to quote FIRE Chief Counsel Bob Corn-Revere, “forehead-slappingly stupid”— such as Trump’s claim against CBS (which is what held up the Paramount deal).
The complaint against YouTube is merely the latest example of this baseless legal posturing. It rests on two counts: First, that YouTube violated the First Amendment by suspending Trump and his fellow plaintiffs’ accounts. Second, that Section 230 of the Communications Decency Act is an unconstitutional source of immunity for companies like YouTube to engage in censorship.
Both counts are without merit.
YouTube is a private company with its own First Amendment rights
Throughout the complaint, Trump and his fellow plaintiffs argue that YouTube was doing the bidding of the Biden White House and Democratic members of congress, effectively turning the platform into a government actor. As a result, the complaint argues, YouTube became subject to First Amendment restrictions on censoring “constitutionally protected speech on the Internet, including by and among its approximately 2.3 billion users that are citizens of the United States.”
To the untrained ear, this may actually sound reasonable. After all, YouTube is a place where millions of people communicate with one another and receive information about the news of the day. But none of that changes the fact that YouTube is also a private company with its own First Amendment rights — which includes the right not to publish or platform content or speakers it disfavors. When you recognize that, the entire argument in this complaint falls apart.
The complaint attempts to justify its contention by noting that the platform was “encouraged and immunized by Congress” to suspend the accounts of Trump and the other plaintiffs. (Part of this so-called immunity comes from 1996’s Section 230, which the complaint also attacks. We’ll get into that in a moment.) “In censoring the specific speech at issue in this lawsuit and deplatforming Plaintiff, Defendants were acting in concert with federal officials, including officials at the CDC and the (Biden) White House,” the complaint reads. “As such, Defendants’ censorship activities amount to state action.” Unfortunately for Trump and his fellow plaintiffs, that’s not how the law works.
According to the complaint, the Biden administration engaged in coercive and indirect tactics to pressure these social media companies to censor and deplatform views the administration didn’t like — otherwise known as jawboning. This, as we’ve arguedbefore, does violate the First Amendment. A year ago in NRA v. Vullo, the Supreme Court agreed, unanimously affirming what had been ruled in 1963’s Bantam Books v. Sullivan: The government can’t do indirectly what the First Amendment prevents them from doing directly.
However, if Trump and his fellow plaintiffs are arguing that the Biden administration jawboned YouTube, they’re suing the wrong people. While jawboning is a violation of the First Amendment, it doesn’t magically transform the coerced party into a government actor. It certainly doesn’t cause a private company to lose its own First Amendment rights. There are multiple tests for when a private person or entity becomes a state actor, but in order to justify this claim in this context, the complainants would have to show concerted action — in other words, the platform consciously acted as the government. The allegation that the platform sometimes gave into government pressure doesn’t satisfy that standard.
Section 230 is not unconstitutional
The second count in the complaint attempts to further justify the first, but inadvertently emphasizes why both are baseless. “Defendants would not have deplatformed” Trump and his fellow plaintiffs, the complaint reads, “but for the immunity purportedly offered by Section 230.” That is nonsense. The platforms did not need “immunity” in deciding to deplatform anyone because nothing in the law compels them to carry particular speakers.
In a nutshell, Section 230 says that platforms like YouTube, X, and Facebook cannot be held legally liable for the content posted on their sites by their users. The law also further protects platforms’ right to curate and moderate that content as they see fit, like a bookseller would.
For years, politicians on both sides of the aisle have railed against and mischaracterized Section 230 for their own partisan reasons. This complaint against YouTube is no different:
Section 230… [was] deliberately enacted by Congress to induce, encourage, and promote social media companies to accomplish an objective — the censorship of supposedly “objectionable” but constitutionally protected speech on the Internet — that Congress could not constitutionally accomplish itself.
The complaint argues that Section 230 is little more than a tool for jawboning. As a result, the complaint “seeks a declaration that Section 230…[is] unconstitutional insofar as [it purports] to immunize from liability social media companies and other Internet platforms for actions they take to censor constitutionally protected speech.”
This is, to put it bluntly, wrong.
First of all, Section 230 was passed in 1996, long before the advent of social media. The idea that it was “enacted by Congress to induce, encourage, and promote” censorship on social media would require a time machine to make true. Second, Section 230 actually works as a safeguard against jawboning — granting publishers and platforms an additional layer of protection against government pressure when it comes to content moderation (and from private causes of action, too). And I say “additional” here because the First Amendment already protects the right of these platforms to use their own editorial discretion, as the Supreme Court held just last year in Moody v. NetChoice.
In other words, Section 230 doesn’t grant these platforms any rights the First Amendment does not. Rather, it further protects those rights from baseless legal action — such as the complaint YouTube just paid $24.5 million to avoid fighting.
And this is why it’s so disappointing that YouTube caved.
These companies cower at their — and our — peril
Just as with Paramount, ABC, Meta, X, and even Trump’s “SLAPP” lawsuit against the Iowa pollster J. Ann Selzer and TheDes Moines Register (who, thankfully, have not rolled over), the YouTube settlement is another example of what we’ve been calling the extortion-industrial complex: The Trump administration’s intention to seize control of America’s media industry through the use and abuse of government powers.
Add to that the administration’s unlawful and unconstitutional attempts to nationalize private institutions of higher education, and we have a serious problem on our hands. These actions, and the majority of the targets’ unwillingness to fight back, pose a major threat to our most foundational freedoms. If our colleges and universities are forced to toe the ideological line of whoever is in power, and if our media companies operate under the boot of the state, we lose both the free inquiry given to us by academic freedom and the open discourse given to us by a free press.
What makes all this worse is that the lawsuits are based on obviously meritless claims that would never withstand scrutiny if they actually went to court. The Trump administration has been mauling these institutions with paper tigers, and the institutions have decided to cower in fear rather than fight. Sure, in the short term, the settlements may help to achieve government favor. The mergers may go through. The federal funding may resume or continue to flow. Costly legal battles may be at least temporarily avoided. But meanwhile, “the freedom of Speech may be taken away,” as George Washington once said, “and dumb and silent we may be led, like sheep, to the Slaughter.”
That’s the cost of these companies’ cowardice: The First Amendment freedoms we all depend on to protect our individual rights and keep our democracy going. When those are given up, there’s no getting them back. We should all be fighting like hell to keep them.
The Trump administration has escalated its confrontation with higher education institutions by sending detailed policy demands to nine universities, conditioning their continued access to federal funding on compliance with the president’s political objectives.
The unprecedented move, delivered via letters signed by Education Secretary Linda McMahon and other senior officials, presents a 10-page “compact” that outlines sweeping requirements affecting tuition pricing, international student enrollment, gender policy, and campus speech.
The compact mandates that participating institutions freeze tuition rates for five years, place restrictions on international student enrollment, and adopt administration-approved definitions of gender. Universities must also commit to preventing any policies that the administration characterizes as punishing conservative viewpoints.
The nine institutions that received letters on Wednesday include Dartmouth College, Brown University, Massachusetts Institute of Technology, University of Southern California, University of Arizona, University of Virginia, University of Pennsylvania, University of Texas, and Vanderbilt University.
According to The New York Times, May Mailman, the White House’s senior adviser for special projects and a letter signatory, indicated the administration remains open to dialogue with contacted universities. “We hope all universities ultimately are able to have a conversation with us,” Mailman stated.
The demands represent a significant threat to institutional autonomy and could have far-reaching implications for diversity, equity, and inclusion efforts on college campuses. The restrictions on international student enrollment raise particular concerns about the future of global education exchange and the presence of international scholars who contribute substantially to research and campus diversity.
The administration’s approach effectively creates a two-tiered system where compliance brings preferential treatment in federal grant competitions. As one senior White House official told The Washington Post, universities would technically remain eligible for grants, but compliant institutions would gain a “competitive advantage.”
This compact represents the latest escalation in the administration’s sustained campaign targeting higher education. Previous actions have included funding freezes, threats to revoke tax-exempt status, and attempts to eliminate universities’ authorization to host international students.
The administration has particularly focused on policies related to international students, pro-Palestinian campus activism, transgender student athletes, and diversity, equity, and inclusion programming.
Harvard University stands alone among major research universities in actively resisting the administration’s demands through litigation. In an April open letter to the Harvard community, President Alan Garber articulated the stakes for academic freedom: “No government—regardless of which party is in power—should dictate what private universities can teach, whom they can admit and hire, and which areas of study and inquiry they can pursue.”
However, on Tuesday, President Trump claimed a deal with Harvard was nearing completion. The administration has already announced agreements with the University of Pennsylvania, Columbia University, and Brown University earlier this year.
The Washington Post caught wind of these latest ideas through two anonymous White House officials.
Brendan Smialowski/AFP/Getty Images
The Trump administration may be moving away from using individual investigations to try to force colleges into compliance with the president’s agenda and instead encourage compliance by giving institutions that demonstrate adherence to his policies a competitive advantage in obtaining research funding, according to The Washington Post.
The new plan, which Post reporters heard about from two anonymous White House officials, would change the grant-application process and give a leg up to institutions that conform to President Donald Trump’s agenda regarding admissions, hiring and other campus policies.
If the plan takes effect, the Trump administration will no longer have to go after universities one by one through investigations and corresponding penalties, but rather can induce compliance from hundreds of institutions at once.
“It’s time to effect change nationwide, not on a one-off basis,” one official told the Post.
The current award-selection process for federal research grants is based primarily on scientific merit. Critics say that overriding such a standard would be a demonstrable example of executive overreach and a violation of academic freedom.
“I can’t imagine a university in America that would be supportive of this,” said Ted Mitchell, president of the American Council on Education.
The notice, published in the Federal Register on September 24, proposes an overhaul of the H-1B visa process to establish a “weighted selection process” favouring “higher skilled and higher paid” workers.
If finalised, the proposal would give greater odds of selection to workers with higher wages, if the number of applicants exceeds the 85,000-limit set by Congress, which has been the case every year for over a decade. The system would replace the current lottery selection process.
The changes – initially put forward for White House review in July – follow a major hike in the H-1B visa fee to $100,000 announced last week, triggering widespread panic among US companies and prospective foreign employees.
Prior to the announcement, employers typically paid between $2,000 to $5,000 for H-1B visa applications, with Trump claiming the increase would put an end to employers “abusing” the system by hiring foreign workers at a “significant discount” in comparison to American workers.
As per yesterday’s proposal, prospective employees would be assigned to four wage bands, with applicants in the top band (level four) placed into the selection pool four times, those in level three entered three times, and so on.
The Department of Homeland Security (DHS) has said the process would “incentivise employers to offer higher wages or higher skilled position to H-1B workers and disincentivise the existing widespread use of the H-1B program to fill lower paid or lower skilled positions”.
The department said it “recognised the value” in maintaining opportunities for lower wage earners and maintained they would not be precluded from the visa, unlike the Trump’s 2021 proposal which “left little or no opportunity” for lower earners.
But critics argue the proposed weighted system will harm US employers’ ability to build international knowledge and fill jobs.
“By favouring more experienced foreign workers and reducing the number of new job entrants, US companies will find themselves struggling to grow,” Intead CEO Ben Waxman told The PIE News.
The plans now face a 30-day public comment period before they are considered by the administration for a final rule, a process that could take several months.
Extensive feedback to government from US businesses on how the proposal would damage US competitiveness is widely expected, with experts also anticipating possible court challenges against the legislation.
Early reports from Bloomberg have suggested the US Chamber of Commerce has begun polling member companies about a potential lawsuit to challenge the $100,000 fee hike.
DHS itself has estimated that 5,200 small businesses currently employing H-1B visa holders would suffer significant damages due to loss of labour.
“There simply are not enough American computer science graduates to support the decades-long record of US innovation and economic growth. That is the wonder of the US tech sector,” said Waxman.
“Why would the US government want to constrain that engine?” he asked.
With analysis by the Chamber of Commerce forecasting a continued decline in the US labour force participation by 2030, advocacy bodies such as IIE have emphasised the importance of international students to fill gaps in labour markets across the country.
There simply are not enough American computer science graduates to support the decades-long record of US innovation and economic growth
Ben Waxman, Intead
The visa, popular with tech companies, enables US employers to temporarily employ foreign workers in “specialty occupations” spanning a wide range of industries from healthcare and teaching to computer science and financial analysis.
Under the current system, there is a statutory annual cap of 85,000 new H-1B visas: 65,00 for regular H-1B visas and 20,000 for individuals with advanced degrees from US institutions known as the master’s cap.
Each year, US employers submit registrations to USCIS for each worker they want to sponsor for a visa. Typically, this number exceeds the cap, in which case, applicants are placed into a random lottery which determines who is awarded a visa.
Since 2012, 60% or more of H-1B workers have held a computer-related job.
Amazon remains the single largest sponsor, with 10,000 out of its total 1.56 million employees holding H-1B visas. Microsoft, Apple and Meta have also expanded foreign hiring through this stream in recent years, according to Newsweek analysis of new federal data.
Commentators have already warned that if the new structure is implemented, the US tech sector will ramp up offshoring facilities and jobs. “Not the outcome anyone in the US wants,” said Waxman.
The visa program has been the subject of much debate in recent months, with Elon Musk, himself once an H-1B worker, coming out in defence of the visa against calls for its abolition from some MAGA hardliners who argued it allowed firms to suppress wages and sidelines American workers.
Denial rates for H-1B visas peaked at 15% during Trump’s first administration due to stricter immigration rules and the tightening of the definition of “specialty occupations”.
India, America’s largest source of international students, is also the top country of origin for H-1B visa holders, with Indian nationals making up 73% of new H-1B approvals in 2023.
China was the second-most common birthplace of H-1B workers, accounting for 12% of skilled workers approved in 2023, while no other birthplace accounted for more than 2% of the total.
In a recent statement and a series of fireside chats, Education Secretary Linda McMahon repeatedly drew attention to her efforts to move all career, technical and adult education programs from the Department of Education to the Department of Labor and consolidate some as part of the Trump administration’s quest to eliminate waste, fraud and abuse.
“I can’t think of a more inefficient system than to have duplication and just one side not knowing what the other is doing,” she said at one conservative policy summit last week. “So let’s consolidate them all in the Department of Labor, where I think they should be. And if we show that this is an incredibly efficient and effective way to manage these programs, it is my hope that Congress will look at that and approve these moves.”
According to ED, many staff members from the Office of Career, Technical and Adult Education are already working under the supervision of the DOL, though the funding for the programs they oversee is still managed by McMahon. Moving that money, which was appropriated by Congress to the Education Department, would require legislative approval. But symbolically, the integration process is under way.
The Trump administration is not the first government body to propose or execute such a merger, however. A handful of states have combined their departments of higher education and workforce development agencies in the hopes of better aligning state budgets, curriculum and grant allocation with the needs of local employers. Missouri, for example, has been working since 2018 to integrate what was the Department of Higher Education and the Division of Workforce Development into a new Department of Higher Education and Workforce Development.
Inside Higher Ed spoke with the newly fused department’s commissioner, Bennett Boggs, and deputy commissioner, Leroy Wade, to understand how it came to be, what challenges they faced in the process and the benefits they’ve seen as a result.
The conversation has been edited for length and clarity.
Q: Take me back and tell me a little bit about what sparked this merger for Missouri.
Wade: There was a realization that we weren’t being as effective as we could be as a state in terms of our economic development. And so Governor Parson, at that point, put together a group called Talent for Tomorrow that looked at what direction do we need to go and what kinds of things do we need to focus on? And then there was an ancillary piece called Best in the Midwest that looked around at our surrounding states to decide, from an economic development, from a workforce perspective, how are we doing?
Unfortunately, what we found was that we weren’t doing really very well. We were toward the bottom in almost everything that we looked at. And so out of that process and a listening tour all around the state to hear what folks wanted and what their perspective was, came two things. One was to try and streamline our Department of Economic Development. The other piece was to look at, how do we change our pipeline system? And that’s what brought the Division of Workforce Development to merge with the Department of Higher Education
Q: How did the process of merging these two institutions work? Was it all led by the governor and the state executive branch, or did it require any legislative backing?
Wade: The governor has the authority to reorganize state government, if you will, at least to a certain extent. So the process started with an executive order laying out what that reorganization would look like. Now, the Legislature has a role in that process. They can’t make changes to it, but they can either vote to accept it or not. But it went through; there was no legislative opposition.
There was some existing statutory language that talked about the Department of Higher Ed, and so there had to be some language changes to adopt the new name of the organization and to reflect some of the structural changes that took place. But it was really all driven by that executive order.
Q: One of the core justifications we’ve heard from the Trump administration for merging the CTE operations at a federal level is to eliminate what they say are duplicate programs. When Missouri combined its agencies, was that one of your motivations as well, and did you find any duplicates to consolidate?
Boggs: What we have found here in Missouri is not so much duplication as an opportunity for coordination. A large part of it was about combining functions that have similar end goals but are not exactly the same program. It’s about asking, how can they be coordinated to be more effective together?
Commissioner Bennett Boggs
One of the answers to that is leveraging broader expertise. If you bring people and programs together and help broaden the perspective of the work that they’re doing, it allows the organization to move from silos to strategic partnerships.
For example, Missouri is very strong in registered apprenticeships. But it’s not just in the trades. We’ve also developed some really effective programs in education and health care and some other professional industries. Part of that is because we’ve been able now to coordinate with local workforce boards, local regional employers and then the two- and four-year institutions, particularly regional ones. Before, these three groups may have been unintentionally competing because they weren’t that aware of each other, but now by working together they can be a funding stream. They can bring resources together to help strengthen and accelerate workforce development that would not have happened if they kept operating separately.
It also just strengthens our communications and helps us as a department talk about higher education in terms of, how does this make life better for Missourians? And that’s a better, healthier conversation to be having.
Q: Despite the shared end goal, there had to be times where there was internal conflict in trying to streamline things. For example, if both an apprenticeship program and a health-care school are training hospital technicians, I can imagine they’re each trying to fill their own seats. So what were some of the challenges you faced in the merger process and how did you overcome them?
Boggs: We know in Missouri, 65 percent of all jobs currently require education or training past high school, and that number is only expected to grow. Of that, 35 percent would be an associate degree or some certification, and 30 percent would be a bachelor’s degree and above. So this is a statewide effort to create pathways for all Missourians—so this is not either-or, it’s yes-and.
Why can’t a student have an internship or a work-based learning experience while in a postsecondary institution? And so part of those regional partnerships is that they help us think about things like that. They’re not only preparing students for the current job but asking, how do we get them on a pathway to be ready for the next one?
One of the challenges in this is understanding that different sections of our department work in different time frames. For example, we run 21 job centers in the state, and when folks come in the door there, they need a job to pay the rent next week. We also have different parts of the department that are approving academic programs in a way that might not really take off for three to five years. It’s not only a difference in pace but also culture and lingo. We just have to be aware of each other and learn.
The other challenge is potential for misalignment related to policies, data and physical infrastructure. This really hits home in terms of our planning and budget folks. We now have an array of state and federal programs that support Missourians in paying for education, whether that’s state-funded financial aid or federal [Workforce Innovation and Opportunity Act] funds. These separate funding streams have different requirements, different reporting structures and eligibility criteria, so our staff then has to be able to think quickly, know about and pivot between multiple particular funding streams.
Q: We’ve also heard critics of the merger at the federal level suggest that there may be barriers in statute that make it difficult to merge or consolidate various programs and grants. Did you experience any difficulties legally when merging your two agencies?
Boggs: We didn’t encounter any legal hurdles, but as I was mentioning earlier, understanding the differences in the federal and state funding streams and the requirements and the structures and the eligibility requirements, those kinds of things had to get worked through.
Q: So would you say it was less about trying to change the existing rules and regulations for various programs and more trying to understand those stipulations in order to use the funding in a more strategic, collaborative way?
Boggs: I think that’s pretty accurate. It’s about keeping the similar end goal in mind, and then asking, what funds can be used to help advance to that shared goal?
Q: All challenges aside, over all, has this merger positively affected Missouri’s higher ed and workforce development landscape? And, if so, how?
Boggs: Absolutely. It’s changed the tone and the conversation statewide in terms of postsecondary education being part of economic and community development. It has pulled in strategic partners, from job centers, regional workforce boards, chambers of commerce and regional universities to have really interesting gatherings and talk about where they need to grow. And it makes for a better conversation about the cutting-edge research our flagship institution does. Over all, it helps us as a state have a better, more comprehensive conversation about learning and workforce development.
Q: Has the Trump administration reached out to you in an effort to learn from Missouri’s experiences in merging these two departments?
Boggs: No, but if they wanted to contact us, we’d be happy to assist however we could.
Q: Do you think there’s an opportunity for the federal government to learn from both the challenges and the successes that you have experienced at the state level?
Boggs: You know there’s a famous quote from Louis Brandeis that says, “States are the laboratories of democracy.”
I wouldn’t pretend to know what the federal government can take away from Missouri. They are operating at a much more complicated level, with many more components in play. But certainly in Missouri, we’ve had a good experience doing this, and we’re still discovering new areas for improvement all the time.
In fact, we’ve got a technical cleanup bill we’re proposing this upcoming legislative session of just small bits and pieces in the state statutes from before the merger that still need to be addressed. Part of what helped us out, though, is data—the integrating of some of the disparate data systems into now a more comprehensive data group, and that’s helping us statewide with better policymaking.
