9AM ET 06/17/2025 Newscast
Learn more about your ad choices. Visit podcastchoices.com/adchoices
Learn more about your ad choices. Visit podcastchoices.com/adchoices
For decades, the Administrative Procedure Act (APA) has functioned as a bedrock of U.S. governance. Across presidential administrations, it has shaped how federal agencies promulgate, revise, and rescind regulations, and it has provided a consistent framework to promote public participation and enhance legal accountability. Recent and proposed efforts by the Trump administration to expedite or circumvent the APA’s requirements are unlikely to survive legal scrutiny.
The Trump administration has made clear its longstanding disdain for the administrative state—and for established principles of administrative law. Over the last several months, the administration has sought to shrink the federal government by slashing the federal workforce and by dismantling entire agencies. Those efforts have repeatedly run aground in the courts before judges appointed by presidents of both parties (including by President Trump himself).
Now, the administration appears to be pursuing a broader objective: a sweeping deregulatory campaign. In February, President Trump issued Executive Order 14219, directing agency heads to, “in coordination with their DOGE Team Leads and the Director of the Office of Management and Budget, initiate a process to review all regulations … for consistency with law and Administration policy” within 60 days. He followed up in April with a memorandum directing agencies to “immediately take steps to effectuate the repeal of any regulation, or the portion of any regulation, that clearly exceeds the agency’s statutory authority or is otherwise unlawful.” The administration’s deregulatory push is likely to unfold in the coming months.
The APA sets forth the process by which federal agencies are required to promulgate and rescind regulations. With certain limited exceptions, an agency is first required to publish a “notice of proposed rulemaking” in the Federal Register and provide an opportunity for public comment, usually over the course of thirty to sixty days. The agency then publishes a “final rule,” which includes a preamble that addresses the public’s comments and explains why the agency decided to follow its chosen course. Although some have correctly noted that the APA’s requirements can complicate effective governance, they remain legally binding and serve numerous essential purposes—among them, improving the quality of agency decisionmaking, promoting transparency, and allowing communities to weigh in on rules that affect them.
However, the administration is likely to try to circumvent these requirements for reasons both ideological and practical. President Trump and his advisors view the APA as a hindrance to their deregulatory agenda. And having depleted federal agencies of their staff, administration officials will struggle to muster the resources needed to complete the ordinary steps of the administrative process, like reviewing public comments and drafting Federal Register publications.
Indeed, the Trump administration has already attempted to circumvent the APA’s notice-and-comment requirements in a number of ways, as we describe below, including by attempting expansive uses of the APA’s narrow exceptions and by using unconventional mechanisms to nullify rules. Although these efforts largely have yet to be reviewed by the courts, they conflict with established precedent concerning the APA and should be struck down as unlawful. Moreover, they are likely harbingers of what is to come.
Below, we outline several approaches the administration is taking and explain why many are unlikely to survive legal scrutiny, with reference to rules and doctrines also described in Governing for Impact’s new APA Library.
Invoking Direct Presidential Authority
To start, the Trump administration has gestured, at least, toward a broad interpretation of the President’s Article II authority that would permit the President to override the APA’s notice-and-comment requirements. In Executive Order 14264, President Trump directed “the Secretary of Energy to publish in the Federal Register a notice rescinding” the Department’s rule defining the term “showerhead” under the Energy Policy and Conservation Act. That order contained a brazen, if somewhat Delphic, assertion: that, according to the President, “[n]otice and comment is unnecessary because I am ordering the repeal.”
That statement could be interpreted in at least two ways. First, it might be an assertion of inherent Article II authority to countermand the APA’s notice-and-comment requirements. But absent some specific statutory authority—and we are aware of no such authority under the Energy Policy and Conservation Act or otherwise—agencies may not bypass applicable notice-and-comment requirements on the President’s say-so. Under Article II, executive branch agencies “are duty-bound to give effect to the policies embodied in the President’s direction,” but only “to the extent allowed by the law.”
Second, the President’s statement could be interpreted as an invocation of the APA’s “good cause” exception, which allows an agency to skip notice and comment where it “for good cause finds” that notice and comment is “unnecessary,” among other bases. But courts have repeatedly held that the APA’s exceptions are to be “narrowly construed and only reluctantly countenanced.” In particular, the unnecessary prong “is confined to those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry … and to the public.” Neither a presidential directive, nor “[b]ald assertions that the agency does not believe comments would be useful,” is sufficient to meet that standard.
The Trump administration’s subsequent actions suggest that it lacks confidence in either interpretation. Shortly after Executive Order 14264 was issued, the Department of Energy published a final rule repealing the prior showerhead definition. That rule nodded to the President’s directive and the good cause exception, but also noted that the showerhead definition was “an interpretive rulemaking,” and such rules are exempt from notice and comment under another of the APA’s exceptions. Nevertheless, the administration’s Article II argument may well reappear.
Deeming Prior Rules “Unlawful”
The showerhead order is not the only time the Trump administration has advanced a questionable interpretation of good cause. The President’s aforementioned April memorandum—issued the same day as the showerhead order—mandated that, “[i]n effectuating repeals of facially unlawful regulations, agency heads shall finalize rules without notice and comment, where doing so is consistent with the ‘good cause’ exception.” According to the memorandum, “[r]etaining and enforcing facially unlawful regulations is clearly contrary to the public interest,” and “notice-and-comment proceedings are ‘unnecessary’ where repeal is required as a matter of law to ensure consistency with a ruling of the United States Supreme Court.”
As we’ve explained, neither theory withstands scrutiny. The D.C. Circuit has rejected the argument that “notice and comment requirements do not apply to ‘defectively promulgated regulations.’” Such a theory “would permit an agency to circumvent [those] requirements of [the APA] merely by confessing that the regulations were defective in some respect,” and “ignore the fact that the question whether the regulations are indeed defective is one worthy of notice and an opportunity to comment.”
Indeed, neither of the two good cause grounds cited by the administration seem applicable. As to “unnecessary,” which we’ve addressed above, we need only add that the public, including expert legal advocates, may have valuable insights into whether a given regulation is unlawful and, if so, how an agency should respond to any legal deficiencies. And the “public interest” prong is “is met only in the rare circumstance when ordinary procedures—generally presumed to serve the public interest—would in fact harm that interest.” The exception is only “appropriately invoked when the timing and disclosure requirements of the usual procedures would defeat the purpose of the proposal.” The April memorandum provides no basis for such a conclusion, and it is unlikely that agencies following the memorandum will be able to substantiate it.
Nor is the administration likely to limit its deregulatory efforts to regulations that suffer from clear legal deficiencies. The April memorandum directs agencies to consider existing regulations under ten recent Supreme Court decisions. But the application of those decisions—assessing, for example, whether a regulation constitutes a “major question” or failed to adequately consider “costs”—will not be entirely straightforward. To the extent the administration adopts an overbroad or erroneous understanding of those decisions, its actions will be subject to challenge.
Overuse of Direct Final Rules
The Trump administration has arguably attempted to stretch the “unnecessary” prong of the APA’s good cause exception in yet another way: by liberally issuing so-called “direct final rules.” Direct final rules are not preceded by a proposed rule; they are accompanied by a request for comment and automatically go into effect unless an adverse comment is received, in which case the agency goes through the traditional rulemaking process before making the rule effective. Their basis in the APA is subject to some debate, but one theory is that they rely on the good cause exception: comment is unnecessary where a rule is so mundane that nobody cares to oppose it.
Examples from the initial months of President Trump’s second term, however, indicate that the administration does not intend to reserve direct final rulemaking for mundane matters. On a single day in May, the Department of Energy published thirteen direct final rules on a wide range of topics. One eliminated a requirement that grant recipients “that sponsor sports teams for members of one sex … allow members of the opposite sex to try out for the team” in certain situations, asserting that such requirements “ignore differences between the sexes which are grounded in fundamental and incontrovertible reality.”
Was this a “routine determination, insignificant in nature and impact, and inconsequential”? Hardly, as indicated by the more than 1,500 comments submitted so far. Nor did the direct final rule “incorporate[]” a good cause finding “and a brief statement of reasons therefor,” as the APA requires when invoking the good cause exception. Affected communities should keep a close eye on the administration’s efforts to use direct final rules to implement substantive policy changes, particularly if there are indications that agencies are ignoring significant adverse comments.
Expanding Other Notice-and-Comment Exceptions
The Trump administration’s attempts to exploit the APA’s notice-and-comment exceptions have not been limited to good cause. Two other exceptions warrant particular attention: the APA’s “foreign affairs” exception and its exception for rules related to “public property, loans, grants, benefits, or contracts” (what we call the “proprietary” exception).
As to the foreign affairs exception, the Secretary of State issued a sweeping determination in March that “all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States”—i.e., all matters relating to immigration and foreign trade—“constitute a foreign affairs function of the United States under the [APA].” That is anything but the “narrow construction” that the APA requires. Indeed, courts have warned that “[t]he dangers of an expansive reading of the foreign affairs exception in th[e immigration] context are manifest,” because “it would be problematic if incidental foreign affairs effects eliminated public participation in this entire area of administrative law.”
In contrast, the proprietary exception is admittedly broad—courts have recognized that, “even construed narrowly, [the exception] cuts a wide swath through the safeguards generally imposed on agency action.” But that is precisely why multiple agencies have, at the recommendation of the Administrative Conference of the United States, voluntarily waived the applicability of the exception. Unfortunately, the Secretary of Health and Human Services rescinded that agency’s so-called “Richardson Waiver” in March, reversing a fifty-year-old policy in a short notice with scant reasoning. To the extent HHS relies on the revocation of the Richardson Waiver to rescind rules without notice and comment, courts may find the revocation itself to be arbitrary and capricious.
Relying on the Courts
The Trump administration has also tried to eliminate regulations outside the standard regulatory process by reversing course on several pending legal challenges. These efforts have taken multiple forms, including declining to appeal adverse judgments, acquiescing in plaintiffs’ requests for vacatur of challenged rules, and agreeing to rescind rules as part of settlements.
Although the executive branch possesses broad discretion in resolving litigation against the United States, such decisions are most problematic when they purport to grant relief beyond the plaintiffs in a given case or to limit the legitimate policy discretion of a future administration. These complicated issues have been the subject of dueling executive branch memoranda over the course of several decades, and we do not attempt to resolve them here. However, the Trump administration should not expect that courts will simply rubber-stamp its efforts. As Chief Justice Roberts, writing for Justices Thomas, Alito, and Gorsuch, emphasized in 2022, there are “important questions” about whether these attempts at “rulemaking-by-collective-acquiescence … comport with the principles of administrative law.” We agree, and expect that courts will have more to say on this front.
Non-Enforcement of Rules
In situations where the Trump administration is unable to repeal rules immediately, it appears to have devised a fallback approach: declining to enforce them in the interim. Indeed, it has already done so with respect to an array of vital consumer protections as well as a rule limiting miners’ exposure to hazardous silica dust. The administration seems likely to seize on the Supreme Court’s 1985 decision in Heckler v. Chaney, which held that an agency’s decision not to initiate a specific enforcement proceeding is presumptively immune from judicial review.
As we’ve explained, however, the situation in Heckler is worlds away from a categorical decision by an agency not to enforce a rule that remains on the books. Heckler itself recognized that an agency would open itself up to challenge if it abdicated its statutory responsibilities or entirely declined to enforce a valid rule. After all, “an agency issuing a legislative rule is itself bound by the rule until that rule is amended or revoked.” By the same token, an agency generally cannot stay a legislative rule that has gone into effect without going through notice and comment. These principles would be meaningless if an agency could nullify a duly promulgated rule through mere neglect.
Conclusion
The Trump administration is poised to expand its use of these tactics, among others, as part of its broader deregulatory agenda. But rather than devising increasingly creative (and legally dubious) strategies for circumventing the APA’s notice-and-comment requirements, it should recognize the value of robust public participation in the regulatory process. At a minimum, these efforts risk setting a damaging precedent—one that future administrations, perhaps with very different views of the role and merits of regulation, could likewise exploit.
The post The Legal Defects in the Trump Administration’s Attempts to Deregulate Without Notice and Comment appeared first on Just Security.
The creatures of the Atlantic Ocean will shimmy up the beach and onto the boardwalk on June 21 as the 43rd annual Coney Island Mermaid Parade returns to mark the unofficial start of summer in Brooklyn.
Around 5,000 participants are hard at work sewing together their homemade costumes and finishing up their lavishly-decorated floats, according to Coney Island USA, which hosts the event each year. They’ll be accompanied by marching bands, drill teams, and antique cars — plus thousands of spectators.
Billed as the largest art parade in the country, the Mermaid Parade is a celebration of “ancient mythology and seaside ritual,” according to Coney Island USA, and is one of the borough’s most beloved traditions.
Every year, participants build and rebuild their glittering floats and costumes to fit new themes and stories. At the end of the route, they show off for the judges — who confer and award prizes for the best floats, costumes, and musical groups.
For some, taking part is pure fun. Longtime participant Ricco Rodriguez, for example, builds the Tractor Pirates float almost singlehandedly every year before his friends and family gather to finish up the fine details hours before the parade.
Others are using the glittering procession to convey a more serious message about protecting Coney Island, the beach, and all its inhabitants from pollution and climate change. But no matter what, marchers say the Mermaid Parade is a symbol of real New York tradition and joy.
Last year, Jan Aiello — who marched the route with her husband and son and their two puppets, both meant to warn about environmental destruction — told Brooklyn Paper the parade was “the antidote to that 21st century despair.”
At the head of the procession, rolling through the route in an antique wicker chair, will be this year’s Neptune King and Mermaid Queen, Eugene Hütz and Queenie Sateen.
“Our King and Queen this year are two amazingly talented and artistic New Yorkers,” said Coney Island USA artistic director Adan Rinn, in a statement.
Hütz is a singer from the band Gogol Bordello, which “basically created Gypsy punk,” Rinn said, while Sateen is a longtime fixture of the local club scene with a new solo single to be released just after the parade.
“We’re so excited to welcome these two boundary-pushing artists as our royalty,” Rinn said.
The 2025 Mermaid Parade will kick off on June 21 at 1 p.m. The route starts at the corner of West 21st Street and Surf Avenue, rolls down Surf Avenue to West 10th Street, then turns down to the Boardwalk where it ends below the Parachute Jump.
Tens of thousands of spectators attend each year, and all New Yorkers are invited to dress up and take part in the parade. Advanced registration closes on Tuesday, June 17, but latecomers can register in-person on the morning of the parade starting at 10 a.m.
And all participants can take part in judging and try to win one of a series of awards for best costumes, best floats, and more. Bribery is not just allowed, but encouraged, per the Coney Island USA website, as a chance for “a little extra creativity.”
After the parade, participants and spectators alike can follow Rinn, the Mermaid Queen and the Neptune King down to the beach for an annual ceremony where they toss fruit into the ocean as an offering and mark the officially-unofficial opening of the beach for the season. The celebration will continue through the night at the ticketed Mermaid Parade Ball at the Sandbar on Surf Avenue.
New Youth Basketball Training Facility Coming to Brooklyn this Fall
Young basketball enthusiasts have something new to look forward to this fall with the news that BSE Global, the parent company of the Brooklyn Nets and New York Liberty, will open a multi-court youth basketball training facility opposite Barclays Center. Operated by BSE Global’s flagship youth basketball program, Brooklyn Basketball, the almost 19,000 sq. ft. Brooklyn Basketball Training Center will allow the program to better support young players and unlock their full potential on and off the court. The program ignites passion, builds skills, and empowers young athletes, making the game more accessible than ever.
Psst… Check Out Activate: The One Family Activity My Kids Actually Agreed On
“We are excited to further enhance the area surrounding Barclays Center with our Brooklyn Basketball Training Center available to all, right in the heart of Brooklyn, as we continue to help grow the sport across the borough,” said Marissa Shorenstein, Chief External Affairs Officer, BSE Global. “This initiative is about more than just basketball—it’s about creating a safe, inclusive space where young people can learn, grow, and connect – and by continuing to invest in our community programming, we’re building a stronger foundation for the future of the game and the neighborhoods we call home.”
Brooklyn Basketball has been working with the New York City Department of Education for the past several years to bring a first-of-its-kind program offering free in-school basketball clinics for elementary and middle school students in Brooklyn. Reaching over 200 schools annually, children are given the opportunity to grow athletic and leadership skills while acquiring a love for the sport. In addition, Brooklyn Basketball provides community clinics across the borough in conjunction with partner community organizations, affecting approximately 40,000 kids each year.
Expanding on Existing Programs Enhances the Experience for Kids
The new facility goes well with Brooklyn Basketball’s existing community programming by offering after-school and weekend training, camps, daily clinics, advanced training, and all-girls programs, and other activities. The Training Center will also serve as a place to do homework and care for other needs before and after training. There will be a parents’ area as well. Kids will also take advantage of the two full courts, a “shooting lab” half court, auxiliary baskets, cutting-edge technology, and expert coaching to further enhance their skills. The center will also be home to Brooklyn Basketball’s newest after-school program that will launch for the upcoming school year, featuring age and skills programs for ages 6-14 on weekdays, with Wednesdays devoted to all-girls training.
“I have personally witnessed the way the game of basketball enriches the lives of young people all over the world, and the opportunity to open a state-of-the-art Brooklyn Basketball training center, right across the street from Barclays Center, is an exciting one for our community,” said Jordi Fernández, Head Coach of the Brooklyn Nets.
The Brooklyn Basketball Training Center will be an asset to the area, encouraging the community’s youth to set their aim high and keep their eyes on the ball.
“The Brooklyn Basketball Training Center is a game-changer, not just for basketball, but for the entire Brooklyn community,” said Sandy Brondello, Head Coach of the New York Liberty. “It’s about giving the next generation a space to learn the fundamentals, be inspired, and create a sense of community that basketball so brilliantly provides. We aim to build the future of the game and empower our community, especially young girls, to dream big. Who knows? Some of them might be playing across the street at Barclays Center for the New York Liberty one day.”
Registration for fall programming is open now at brooklyn-basketball.com.
Psst… Check Out Free Kid and Family Activities in NYC: 10 Free Things to Do This Week
In late May, the State Department issued a pair of cables that rightly invited substantial media attention. The cables are the latest in a series of vague Trump administration directives that are ostensibly intended to combat antisemitism but will inevitably chill or punish First Amendment-protected speech.
The first cable imposed a pause on all new visa interviews for international students until the department could issue guidance on social media vetting. The second directed consular officers to closely scrutinize the social media of all applicants seeking a visa to study, teach, or speak at Harvard University, with a particular focus on antisemitism and antisemitic viewpoints. The cables were not disseminated in isolation. Instead, they are part of a broader, government-wide effort that threatens the right to free speech.
For example, an earlier notice from U.S. Citizenship and Immigration Services (USCIS), an arm of the Department of Homeland Security (DHS), raises substantial issues that have received little analysis so far. On April 9, USCIS announced that it would begin screening many non-citizens’ social media for “antisemitic activity.” The notice is riddled with ambiguities and, as explained below, is in direct conflict with existing DHS policies and regulations. According to the announcement, USCIS would immediately begin reviewing the social media content of green card applicants, foreign students, and individuals “affiliated with educational institutions linked to antisemitic activity” – as well as anyone applying for an immigration benefit over which USCIS has discretion. Almost everyone subject to this notice is already present in the United States, vesting them with substantial First Amendment rights, as the department itself has recognized.
The USCIS notice itself followed a trio of executive orders, including one declaring that the government will vet non-citizens in the United States to ensure they do not “bear hostile attitudes” towards American “culture” or “founding principles,” among other things. Indeed, a subsequent USCIS press release describes the notice as adopting “social media vetting for anti-Americanism.”
The central paragraph in the April 9 notice reads: “Under this guidance, USCIS will consider social media content that indicates an alien endorsing, espousing, promoting, or supporting antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity as a negative factor in any USCIS discretionary analysis when adjudicating immigration benefit requests.”
This guidance enables USCIS officers to exercise significant discretion to deny applications for a range of immigration benefits, including most applications to adjust status to that of a legal permanent resident, based on nebulous, undefined terminology. Below, we scrutinize each phrase in this key passage, highlighting in bold the terms and phrases that are undefined as a matter of law or otherwise vague.
Dissecting the USCIS’s April 9 Notice
“USCIS will consider social media content…”: USCIS’s notice provides no definition of “social media content,” which could encompass anything from a post to a like, retweet, or comment. It could even include being tagged in someone else’s social media feed. The Trump administration’s first four months provide a window into how it intends to use content found online to further its immigration enforcement goals, as it has retaliated against individuals for online editorials, social media commentary, and social media posts displaying symbols or common hand gestures that officials claim, without providing evidence, are linked to the Venezuelan gang Tren de Aragua (TDA).
The notice’s ambiguous phrasing invites errors or abuses. For instance, USCIS could target someone who comments favorably on a friend’s Instagram carousel if one of the photos includes content the administration deems to be antisemitic—even if the comment is not about that photo. USCIS might scour critical replies to a pro-Israel page or scrutinize the faces captured in a photo of a pro-Palestine protest featuring signs with antisemitic slogans, even if most people at the protest have no connection to those holding the signs. And it might even impute one person’s social media content to another who isn’t even mentioned in it – concluding, for instance, that if an immigrant’s spouse has posted approvingly about a protest that is deemed to include antisemitic activity, those views are likely shared by the immigrant herself as well.
“…that indicates an alien “endorsing or espousing…”: The words “endorse or espouse” appear in the Immigration and Nationality Act (INA), in a provision declaring that non-citizens who endorse or espouse terrorist activity can be denied admission to and removed from the United States. The phrase “terrorist activity” is defined as well, covering actions such as assassinations; use of firearms or weapons to endanger others or cause “substantial damage to property”; hijacking of certain transportation methods; or detaining and threatening someone in order to compel someone else (like a government entity) to do or abstain from an act.
Neither the statute nor any caselaw defines what it means to “endorse and espouse.” However, according to an internal governmental memorandum obtained via a FOIA request by the Knight First Amendment Institute, the White House Office of Legal Counsel has advised Immigration and Customs Enforcement (ICE) that attempts to enforce this provision against people who express only “abstract” support, or whose support does not directly implicate national security, could be successfully challenged on First Amendment grounds.
“…promoting…”: There is no statutory definition of promotion. When applied to social media content where liking, sharing, or reposting content could be construed as “promoting,” even if the user does not agree with the content in question, this undefined term could make it easy for USCIS to use a broad range of social media activity as a pretext to punish an applicant.
“…or supporting…”: Similarly, there is no stand-alone statutory definition of support. There is a statutory prohibition on providing material support—including property, training, assistance, and services, including even low-level financial transactions—to terrorists or foreign terrorist organizations. Importantly, when it comes to speech, the Supreme Court has interpreted the material support provision to cover only speech that is “to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” However, since the announcement covers “antisemitic activity” generally, not just activity coordinated with terrorists or an identified foreign terrorist organization, it is unlikely that the term “supporting” in the announcement is meant to be limited to material support, creating additional ambiguity.
“…antisemitic terrorism…”: This term does not appear in any statute and is not a recognized term of art. While “terrorism” has several statutory definitions, including violence that is “premeditated [and] politically motivated” and is “perpetrated against noncombatant targets by subnational groups or clandestine agents,” it is not clear what “antisemitic terrorism” would include that is not already captured by existing terrorism and hate crime statutes.
“…antisemitic terrorist organizations…”: This phrase is also not defined by law. Federal law establishes criteria that, if met, authorize the Secretary of State to designate an organization as a “Foreign Terrorist Organization” (FTO), and the federal government periodically publishes a list of groups that have been designated as FTOs. It is unclear whether the phrase “antisemitic terrorist organizations” is intended to include organizations beyond those on the FTO list and, if so, what the statutory basis is for that characterization. Notably, it is already illegal to provide material support to an FTO, and providing such support or endorsing or espousing terrorist activity are also grounds for inadmissibility and removal, so the government does not need additional tools to tackle support for those organizations.
“…or other antisemitic activity…”: This phrase has no legal meaning, nor any commonly understood interpretation. In fact, the definition of antisemitism itself is highly contested. The definition currently used by the Trump administration has been heavily criticized on the grounds that it chills speech and other activity protected by the First Amendment. Based on the administration’s actions so far, “antisemitic activity” could include organizing and participating in peaceful demonstrations, publishing an op-ed critical of your school’s administration, or simply having a relative by marriage who is deemed a suspected terrorist by virtue of their political activity. Because the notice, taken as a whole, prohibits “promoting” or “supporting” such “antisemitic activity,” it suggests that an applicant could be targeted not just for engaging in those things, potentially in contravention of the First Amendment, but for putting a post on Facebook that simply “supports” someone else doing so. In the absence of any clarifying information, potential applicants are left to guess what activity would count against them.
“…as a negative factor in any USCIS discretionary analysis…”: Immigration benefits are divided into two categories: non-discretionary and discretionary. For non-discretionary benefits, which include removing conditions on one’s permanent resident status or becoming a naturalized citizen, USCIS must approve an applicant’s petition if she satisfies the eligibility requirements for that benefit. For many other benefits, however, such as applications for green cards, extensions of nonimmigrant stays, asylum, refugee or fiancé status, and more, USCIS exercises discretion in determining whether to grant them. Even if an applicant meets the statutory and regulatory requirements, USCIS may reject her application because of certain nondelineated “negative factors.” Under the April 9 notice, those “negative factors” will include social media content that is deemed antisemitic. Although USCIS guidelines instruct officers to review an applicant’s entire record and weigh positive factors against any negative factors, the guidelines themselves acknowledge that there is “no formula for determining the weight to be given a specific positive or negative factor,” leaving significant room for an officer to determine that any particular social media activity is sufficiently negative to merit denial of the application.
Moreover, while the notice will “immediately affect” foreign students and “aliens affiliated with educational institutions,” its language covers all immigration benefits that involve discretionary analysis. It is worth noting that in an earlier part of the notice, USCIS states that it “will begin considering aliens’ antisemitic activity on social media . . . as grounds for denying immigration benefit requests,” rendering ambiguous whether even non-discretionary immigration decisions may be covered by the notice. Given this ambiguity, non-citizens could reasonably fear that any immigration benefit decision, including a non-discretionary determination like granting an application for naturalization, may be affected by this social media review.
Finally, the notice leads off with a warning that certain groups will be targeted immediately, including “aliens affiliated with educational institutions linked to antisemitic activity.” Like other parts of this notice, this clause is so vague as to be almost useless, and the administration has issued no comprehensive list of such institutions. The October 2024 report on antisemitism on college campuses from House Republican committee staff covered five universities, while the Education Department under President Donald Trump announced investigations into five other schools and sent letters to 60 more, claiming that they were under investigation for “antisemitic discrimination and harassment.” Just a week after those letters were announced, the Education Department produced yet another list of schools under investigation.
Put simply, in the barrage of investigations launched and announced, it is impossible for individuals to know if they are affiliated with an “educational institution linked to antisemitic activity” and thus among the groups immediately affected by this notice.
The April 9 Notice is at Odds with Established DHS Policies
Several DHS policies appear to call into question USCIS’s authority to collect and use social media in this way. Under a 2014 policy (which was implicitly reaffirmed in 2019), USCIS indicated that it would not deny immigration benefits “solely based on publicly available information” such as social media content because of “its inherent lack of data integrity.” USCIS may reply that social media will not be the “sole” basis, simply a strong negative factor – but the notice states that “antisemitic activity on social media” will be “consider[ed] … as grounds for denying immigration benefit requests,” explicitly denoting that it could be a dispositive factor.
Notably, USCIS is not the entity that grants (or can revoke) a student’s F-1 visa. That authority resides with the State Department. However, because of extensive information sharing practices between government agencies, USCIS could share the results of its social media review with the State Department, or with other DHS components that have more control over legal status as a student. And if the student applies to remain in the country and for other immigration benefits or changes in status, USCIS’s role becomes more direct and authoritative.
In addition, according to the 2014 and 2019 USCIS policy documents, when publicly available information “impact[s] whether an individual is granted a benefit,” the applicant must be “provided the opportunity” to review, rebut, explain, or resolve the information and any inconsistencies it raises. In fact, USCIS policy specifically states that when the agency finds “social media content that is relevant to the adjudication of the immigration request,” federal regulations mandate that the applicant have the opportunity to “review and rebut” the “derogatory information” before a final decision based on this information is made. These notice and redress opportunities appear nowhere in the April 9 notice.
In addition, while USCIS’s policy manual prohibits agents from making discretionary decisions “arbitrarily or capriciously,” the ambiguities embedded throughout the April 9 policy notice almost guarantee that immigration benefit decisions will be made in this way. And there is no indication that the process that resulted in the dissemination of the notice complied with DHS’s long-standing policy on the operational use of social media, which requires that nearly every use of social media—including those outlined here—comply with all relevant privacy policies and laws, and directs component heads (including the head of USCIS) to establish appropriate guidelines and consult with the department’s privacy officer.
A Threat to Free Speech
In short, the April 9 notice is likely to quell speech, discouraging immigrants and non-immigrants who are lawfully seeking a variety of immigration benefits, along with their family members, friends, and others with whom they engage on social media, from taking part in a wide range of constitutionally protected activity for fear of retaliation. And its smorgasbord of vague terms, many with no legally recognized meaning, enables USCIS officers to exercise nearly unchecked discretion in determining when to reject an otherwise unobjectionable application for a benefit, contrary to well-established government policy, simply because the officer deems something the applicant has posted—or otherwise somehow has been associated with—is, in some undefined way, antisemitic.
The post How DHS’s New Social Media Vetting Policies Threaten Free Speech appeared first on Just Security.
Categories
8AM ET 06/17/2025 Newscast
Signup to receive the Early Edition in your inbox here.
A curated guide to major news and developments over the past 24 hours. Here’s today’s news:
ISRAEL-IRAN CONFLICT
The Israeli military said today it has killed Iran’s most senior military commander, Maj. Gen. Ali Shadmani, in an overnight strike, days after killing his predecessor. The IDF said Shadmani had commanded both the Islamic Revolutionary Guard Corps and the Iranian army, and was the closest figure to Iran’s supreme leader, Ayatollah Ali Khamenei. Iran has not commented at the time of writing. Lawhez Jabari and Peter Guo report for NBC News.
Centrifuges at Iran’s Natanz uranium enrichment plant were likely “severely damaged if not destroyed altogether” following Israeli strikes on Friday, the head of the International Atomic Energy Agency (IAEA), Rafael Grossi, told the BBC News. Grossi said the damage was a result of power cuts caused by the attack, adding that an above-ground plant has been “completely destroyed.” David Gritten reports.
ISRAEL-IRAN CONFLICT — U.S. RESPONSE
President Trump yesterday abruptly left the G7 summit in Canada “because of what is going on in the Middle East,” White House press secretary Karoline Leavitt said, without elaborating. Trump later stated the reason for his departure was “much bigger” than trying to reach an Israel-Iran ceasefire. Patrick Kingsley, Farnaz Fassihi, Natan Odenheimer, David E. Sanger, and Jonathan Swan report for the Washington Post.
Trump has disputed the assessment of the Director of National Intelligence, Tulsi Gabbard, on how developed Iran’s nuclear capabilities were. Gabbard testified in March that the intelligence community “continues to assess [that] Iran is not building a nuclear weapon.” However, Trump told reporters on Air Force One, “I don’t care what she said. I think they were very close to having it.” Kaitlan Collins reports for CNN.
The Trump administration told multiple Middle Eastern allies on Sunday that it will not actively join the Israel-Iran conflict unless Iran targets Americans, sources told Axios. Separately, the White House is in talks with Iran over the possibility of facilitating a meeting this week between the U.S. Special Envoy Steve Witkoff and Iran’s foreign minister, sources say. Barak Ravid reports for Axios.
In a post on X, Defense Secretary Pete Hegseth said he has directed the “deployment of additional capabilities” to the Central Command Area of Responsibility, the section of the U.S. military whose area of responsibility includes the Middle East. Meanwhile, U.S. ships have been used to defend against Iranian missiles aimed at Israel, in addition to ground-based interceptors, two U.S. officials told NBC News. BBC News reports; Courtney Kube and Mosheh Gains report.
ISRAEL-IRAN CONFLICT — INTERNATIONAL RESPONSE
During their summit in Canada, the leaders of G7 nations urged a “de-escalation of hostilities in the Middle East, including a ceasefire in Gaza,” but stopped short of calling for an Israel-Iran ceasefire. In a joint statement, signed by Trump, said Israel had the right to defend itself and that “Iran is the principal source of regional instability and terror.” James Landale and Nadine Yousif report for BBC News.
European foreign ministers yesterday urged Iran to resume nuclear negotiations with the United States and refrain from escalating the conflict with Israel, according to a French diplomatic source. In response, Iran’s foreign minister was quoted by state media as saying that Tehran’s “focus at this stage is, of course, to effectively… confront aggression.” John Irish reports for Reuters.
A Czech government plane carrying 66 people who had been evacuated from Israel landed in Prague today, Czech’s defense minister has confirmed. Poland is also organizing flights for its citizens, and is planning to evacuate non-essential embassy staff in Tehran, its deputy foreign minister said. Meanwhile, Australia confirmed that around 650 people had registered with its government to leave Iran, and another 600 have registered to leave Israel. BBC News reports.
U.S. POLITICAL VIOLENCE
The man accused of killing a Minnesota lawmaker and her husband and shooting another lawmaker and his wife in a campaign to “inflict fear” appeared in federal court yesterday for the first time. “These were targeted political assassinations the likes of which have never been seen in Minnesota. It was an attack on our state and on our democracy,” the acting attorney for the District of Minnesota said in a press release, adding that the assailant, Vance Boelter, attempted to kill two other state lawmakers that same night. Boelter, 57, could face the federal death penalty for the attacks, with prosecutors saying he had plans to carry out a widespread killing spree aimed at Democratic politicians. Ernesto Londoño, Jeff Ernst, Yan Zhuang, and David W. Chen report for the New York Times;; Ana Faguy reports for BBC News.
Rep. Hillary Scholten (D-MI) yesterday canceled a town hall event after her name appeared on Boelter’s alleged list of targets. Andrew Solender reports for Axios.
A Georgia man was indicted yesterday on charges of threatening sexual violence against Sens. Ted Cruz (R-TX) and Deb Fischer (R-NE), federal prosecutors said. Zoë Richards reports for NBC News.
U.S. PROTESTS RESPONSE
The Los Angeles Press Club filed a lawsuit yesterday against the city of Los Angeles and its police chief, Jim McDonnell, over alleged police violence and use of “excessive force” toward journalists covering the ongoing protests of immigration raids. “Being a journalist in Los Angeles is now a dangerous profession,” the group wrote in its suit. The LAPD said it “does not comment on pending litigation.” Scott Nover reports for the Washington Post.
ISRAEL-HAMAS WAR
Israeli tank fire today killed at least 51 Palestinians as they awaited aid trucks in Khan Younis, the Hamas-run health ministry said. Separately, local health officials said that Israeli gunfire killed at least 23 people yesterday as they approached the U.S.-backed Gaza Humanitarian Foundation (GHF) aid distribution site in Rafah. Nidal Al-Mughrabi and Dawoud Abu Alkas report for Reuters.
RUSSIA-UKRAINE
A nighttime Russian missile and drone attack on Ukraine killed at least 15 people and injured 116 others, officials said today, with the main barrage of the attack hitting Kyiv, where the attack killed 14 people. Samya Kullab and Vasilisa Sepanenko report for AP News.
RUSSIA-UKRAINE — U.S. AND INTERNATIONAL RESPONSE
The United Kingdom, alongside other allies, is expected to unveil fresh sanctions against Russia today, aimed at “restrict[ing] Putin’s war machine.” In a statement, British Prime Minister Keir Starmer said that he and other G7 partners were finalizing the new measures at the Alberta summit.Meanwhile, Trump signalled his opposition to further measures against Russia, telling the G7 summit yesterday that sanctions “cost [the United States] a lot of money.” Yang Tian reports for BBC News.
The Trump administration recently ended its working group which it had set up to formulate strategies for pressuring Russia into accelerating peace talks with Ukraine, U.S. officials say. “It lost steam toward the end because the president wasn’t there. Instead of doing more, maybe he wanted to do less,” one official said. Gram Slattery reports for Reuters.
More than one month since it signed a mineral deal agreement with the United States, Ukraine yesterday approved the first steps to permitting private investors to mine a major state-owned lithium deposit, officials say. Constant Méheut reports for the New York Times.
GLOBAL AFFAIRS
A German court yesterday sentenced a Syrian doctor to life in prison for crimes against humanity and war crimes during the Assad regime. Utilizing a legal concept that allows countries to prosecute war crimes that occur outside their territory, German prosecutors said the doctor abused and killed prisoners suspected to be enemies of former President Bashar al-Assad while he was working in military hospitals and prisons in the early 2010s. Joshua Yang and Aaron Wiener report for the Washington Post.
Four gunmen stormed a Mexican village hall and opened fire on Sunday, killing both the mayor of the San Mateo Piñas municipality, Lilia Gema García Soto, , and a local official, Eli García Ramírez. Two municipal police officers were also wounded in the attack. Officials are still investigating both the assailants and motive for the attack, which marks the second mayor killed in Oaxaca state this year. Vanessa Buschschlüter reports for BBC News; Clea Skopeliti reports for Euro News.
A senior Russian security official traveled to Pyongyang for a second time this month for another meeting with Kim Jong Un, Russian state media reported today. AP News reports.
U.S. FOREIGN AFFAIRS
Trump and Starmer said yesterday they had finalized their trade agreement to reduce U.S. tariffs on British cars, steel, aluminum, and aerospace equipment. While the trade deal had been announced last month, it was short of details and left several topics to be continued. Announcing the deal, Trump praised Starmer, saying, “He’s done a very, very good job.” Ana Swanson and Michael D. Shear report for the New York Times.
U.S. DOMESTIC DEVELOPMENTS
Senate Republicans have proposed major revisions of the House tax and spending bill, including offering permanent business tax breaks, increased cuts to Medicaid, slower timelines for clean-energy credit, and a reduced cap on the state and local tax deduction. The Senate, which aims for passage next week and a final deal by July 4, must overcome challenges from various factions, including Republican intraparty divides. Richard Rubin, Liz Essley Whyte, and Siobhan Hughes report for the Wall Street Journal.
For the first time in its 116-year history, the civil rights organization NAACP will exclude the sitting president from its national convention this year. “[Trump] has signed unconstitutional executive orders to oppress voters and undo federal civil rights protections; he has illegally turned the military on our communities, and he continually undermines every pillar of our democracy to make himself more powerful and to personally benefit from the U.S. government,” the NAACP president wrote. Niha Masih reports for the Washington Post.
A civil trial began yesterday for a lawsuit alleging that a pardoned Capitol riot defendant was responsible for a police officer’s suicide. The defendant in the wrongful death trial pleaded guilty to riot-related misdemeanor in January 2023. Michael Kunzelman reports for AP News.
Former U.S. Senator Bob Menendez is due to report to federal prison today to begin his 11-year sentence for accepting bribes and acting as an agent of Egypt. Michael R. Sisak and Larry Neumeister report for AP News.
The Government Accountability Office yesterday concluded that the Trump administration violated the Impoundment Control Act by withholding Congressionally appropriated funding to the agency responsible for supporting libraries, archives, and museums across the country. Jennifer Scholtes reports for POLITICO; Meryl Kornfield and Hannah Natanson report for the Washington Post.
U.S. IMMIGRATION DEVELOPMENTS
The Department of Homeland Security yesterday told staff it was revising its guidance, issued last week, that exempted farms, hotels, and restaurants from immigration raids. ICE agents have now been told to continue conducting enforcement operations at those businesses, despite concerns about negative impacts on the industries. Carol D. Leonnig, Natalie Allison, Marianne LeVine, and Lauren Kaori Gurley report for the Washington Post.
Trump has ordered ICE to “do all in their power” and “expand efforts to detain and deport” undocumented immigrants in Democratic-run cities, such as “Los Angeles, Chicago, and New York,” he wrote on his Truth Social platform. Rebecca Falconer and Russel Contreras report for Axios.
TRUMP ADMINISTRATION ACTIONS
Trump on Friday fired a member of the U.S. Nuclear Regulatory Commission, the independent federal agency that oversees U.S. nuclear reactors. Christopher Hanson, who led the agency during the entirety of the Biden administration, said Trump fired him without reason “contrary to existing law and longstanding precedent regarding removal of independent agency appointees.” Chris Cameron and Claire Brown report for the New York Times.
TRUMP ADMINISTRATION LITIGATION
The American Bar Association (ABA) yesterday filed a lawsuit against the Trump administration alleging that its executive orders “coerce lawyers and law firms to abandon clients, causes, and policy positions the President does not like.” The lawsuit also claimed that Trump’s “law firm intimidation policy” violated the separation of powers as well as the First Amendment because it threatened retaliation for “engaging in speech the government disfavors.” A White House spokesperson called the lawsuit “clearly frivolous.” Gregory Svirnovskiy reports for POLITICO.
The Trump administration’s cuts to scientific research grants focusing on gender and diversity, equity, and inclusion are illegal and discriminatory, a federal judge in Massachusetts ruled yesterday from the bench. “This represents racial discrimination and discrimination against America’s LGBTQ community. That’s what this is,” Judge William G. Young said, adding, “I would be blind not to call it out. My duty is to call it out.” The order comes ahead of a written opinion to be issued later. Ian Lopez reports for Bloomberg; Daniel Wiessner and Nate Raymond report for Reuters.
The Trump administration secured a legal victory yesterday when a federal judge dismissed a lawsuit brought by faculty groups over federal funding cuts to Columbia University. “It is not the role of a district court judge to direct the policies of the Executive Branch first and ask questions later,” Judge Mary Kay Vyskocil wrote in the ruling, adding that the faculty unions had no “standing” to bring the suit and failed to clearly indicate how the administration broke the law. Alice Speri reports for The Guardian.
Did you miss this? Stay up-to-date with our Litigation Tracker: Legal Challenges to Trump Administration Actions
If you enjoy listening, Just Security’s analytic articles are also available in audio form on the justsecurity.org website.
ICYMI: yesterday on Just Security
The “Unwilling or Unable” Test for Sending U.S. Military to Los Angeles
by Ryan Goodman
Hidden in the U.S. Army’s New Reform Initiative Is a Warning for Europe
by Jennifer Kavanagh
The Sarkozy-Gaddafi Trial Exposes Corruption’s Devastating Effect on Libyans
by Chiara-Lou Parriaud and Grace Spalding-Fecher
The post Early Edition: June 17, 2025 appeared first on Just Security.
Public safety has always been the North Star of this administration. Keeping our city safe is not just about crime stats — it is also about how people are feeling. And New Yorkers have strong feelings about illegal mopeds and scooters, especially when they are driving the wrong way down streets, on sidewalks, or in the dark without any lights, and when they are modified to increase noise and disturb neighborhoods.
The rise of the moped era has terrorized many of our pedestrians. Seniors and older adults are afraid of being run down right on their own block. Parents are afraid their children can be injured by someone popping a wheelie. And everyday residents dread that sound as they hear it approaching.
But sometimes the use of these illegal vehicles is more than a danger or a nuisance, sometimes it’s criminals. Criminals often use illegal mopeds and ghost vehicles to ride around and snatch cell phones, jewelry, and wallets from New Yorkers, or worse, to flee after committing a shooting, robbery, or another violent crime.
Our administration will not tolerate crime or riders who think the rules don’t apply to them; that’s why we have been taking action on this issue since day one. And as summer starts and more of these vehicles are out, we have ramped up enforcement all over the city, leading to us to confiscate and impound more than 100,000 of these vehicles since 2022. That’s over 100,000 ghost vehicles with forged, illegal, or no license plates, including over 62,300 illegal two-wheeled vehicles. These vehicles — which are often unregistered, uninsured, or stolen — are often used in crimes or implicated in accidents. They also deprive law-abiding taxpayers of millions of dollars in unpaid tolls and fees.
We have been clear: We are not going to let people live in fear, and we are not going to look the other way. Last week, we sent another 200 of these illegal vehicles to their final destination: the scrap heap. We crushed these vehicles, instead of reselling them, so they can never be used in a crime or to terrorize innocent New Yorkers again. Whether we’re getting illegal guns or illegal ghost cars off our streets, when it comes to public safety, we are literally crushing it.
The destruction of these illegal vehicles sends an important message to everyone who drives on the streets of our city: No one is above the law. If you drive an illegal vehicle in New York, you will face the consequences. And so will your ride.
And the numbers show that our effort to rid our city of these vehicles is helping us deliver a safer city for residents of the five boroughs. This year has seen a nearly 86 percent decrease in grand larceny patterns, as well as a 68 percent decrease in robbery patterns involving mopeds. More broadly, there has been a 57 percent decrease in all index crimes reported involving mopeds year-to-date. This is all in addition to our efforts that have driven down overall crime across our city; with the continuing drop in major crimes we’ve seen in April, May, and so far this month, we are on track to have our sixth straight quarter of declining crime.
I want to thank NYPD Commissioner Tisch, Sanitation Commissioner Lojan, and the men and women at both New York’s Finest and New York’s Strongest for helping us get these illegal vehicles off our streets, once and for all. Thanks to their efforts, New York City remains the safest big city in America and the best place to raise a family. But it is also a place where you can live knowing your city is looking out for you — day and night, in schools and in subways, on the streets and on the sidewalks.
