Last week, the U.S. Court of Appeals for the First Circuit heard oral argument in two cases involving President Trump’s retaliatory actions against Harvard University.
The more well-publicized of the two cases, President and Fellows of Harvard College v. U.S. Department of Health and Human Services, No. 25-2230, concerns the Trump administration’s attempted cutoff of research grants to Harvard, a strategy U.S. District Court Judge Allison Burroughs permanently enjoined in October 2025. The government’s appeal of that judgment was argued last Monday, Oct. 5, 2026. The primary issues on that appeal are (i) whether Harvard had to bring some or all of its claims in the Court of Federal Claims rather than in district court, and (ii) whether HHS has demonstrated that it would have cut off all grant funding to Harvard based upon conduct (such as alleged impermissible race discrimination) that wasn’t constitutionally protected, even if it was also motivated by an effort to retaliate against, or to coerce, Harvard’s First Amendment activities (e.g., its choice of curriculum, faculty hiring, and decisions to sue the Trump administration).
The other case, President and Fellows of Harvard College v. United States Department of Homeland Security, No. 25-1627, is the subject of this piece. It concerns President Trump’s efforts to coerce Harvard to capitulate to Trump’s demands by prohibiting foreign students from attending the university. Judge Burroughs preliminarily enjoined implementation of that Trump initiative back in June 2025. The government’s appeal of that preliminary injunction was argued last Tuesday, Oct. 6.
The primary “merits” issue in that second case is whether a federal court can look behind Trump’s patently pretextual stated reasons for categorically denying F-1 and J-1 visas to foreign students for purposes of studying at Harvard and conclude that those visa denials, like the grant funding cutoffs, were designed to coerce Harvard’s First Amendment activities or to retaliate against Harvard for such constitutionally protected activities.
Two weeks before the oral argument, however, the appellate panel (Judges Gelpi, Thompson, and Dunlap) directed the parties “to prepare to address at oral argument whether th[e] appeal may be moot” in light of the fact that the presidential proclamation at issue, the enforcement of which the district court preliminarily enjoined, expired on Dec. 4, 2025. Neither of the parties had addressed the question of mootness, or the expiration of the Proclamation’s operational period, in their briefs.
At the oral argument before the court of appeals last Tuesday, counsel for both sides contended that the appeal is not moot and that the panel therefore should reach the merits.
I think that’s not right: The government’s appeal is almost certainly moot.
But the underlying case isn’t, and therefore Harvard can continue in district court to seek a permanent injunction (or another preliminary injunction) that would prohibit the executive branch from implementing a program of denying F-1 and J-1 visas to prospective Harvard students.
I.
Here’s a timeline of facts relevant to the mootness question:
- On June 4, 2025, President Trump issued Proclamation 10948, section 1 of which suspended entry into the United States of any foreign nationals using F-1 and J-1 visas for purposes of attending Harvard. An F-1 visa permits an international student to enter and be lawfully present in the United States to complete a course of study at a designated school. A J-1 visa permits an international student to enter and be lawfully present in the United States as part of an exchange visitor program. Section 1 of the Trump Proclamation prohibited the provision of such visas—i.e., it “suspend[ed]” entry of a foreign student into the United States—only if the student in question would attend Harvard. Section 3 of the Proclamation directed the Attorney General and the Secretaries of State and Homeland Security to “coordinate to take all necessary and appropriate action to implement this proclamation.” Importantly, section 1 further provided that this Harvard-specific suspension of entry would apply only until December 4, 2025 (“That suspension and limitation shall expire, absent extension, 6 months after the date of this proclamation.”).[1]*
- Harvard challenged the legality of the entry suspension in the U.S. District Court for the District of Massachusetts. On June 23, 2025, Judge Burroughs granted Harvard’s motion for a preliminary injunction against the Secretaries and their departments and ordered the following relief: “Defendants and their officers, employees, servants, agents, appointees, and successors are hereby enjoined from implementing, instituting, maintaining, or giving effect to the Proclamation until a further order is issued by this Court.”
- A few days later, the defendants appealed the preliminary injunction to the court of appeals (which docketed the appeal on July 1, 2025), while the remainder of the case remained in the district court. Due in part to the government shutdown, appellate briefing was delayed and didn’t conclude until Feb. 9, 2026, more than two months after the December 4 expiration date of the President’s student entry suspension. For various reasons, oral argument, too, was delayed until just last week, more than ten months after the close of the Proclamation’s entry suspension period.
- Section 1 of Proclamation 10948 expressly contemplated that the President might extend the term of the entry suspension beyond Dec. 4, 2025; indeed, section 2(e) required the relevant Department heads to make a recommendation to Trump by September 2025 “on whether an extension or renewal of the suspension and limitation on entry in section 1 of this proclamation is in the interests of the United States.” There’s no evidence, however, that those officers made any recommendation (perhaps because of the preliminary injunction). In any event, President Trump did not extend the entry suspension before it expired, nor has he renewed it, or decreed another student visa entry suspension based upon more recent developments at Harvard, since the entry suspension in Proclamation 10948 expired last December.
- Meanwhile, back in district court, the government moved to dismiss Harvard’s amended complaint. Before briefing was completed on that motion, however, Judge Burroughs ruled on March 31, 2026 that “the most prudent path forward is to temporarily stay this case pending resolution of the appeal in order to promote judicial economy,” in light of “the extensive overlap between the issues on appeal and those implicated in Defendants’ Motion to Dismiss.” (The judge also denied the government’s motion to dismiss the complaint, although she specified that the defendants could file a revised motion to dismiss after the court lifts the stay.)
II.
The judges on the court of appeals panel are right to think that the appeal itself is moot.
Recall that the government’s appeal is limited to the question of whether it was proper for Judge Burroughs to issue the preliminary injunction on June 23, 2025. That injunction, by its terms, only enjoined the defendants and their agents “from implementing, instituting, maintaining, or giving effect to the Proclamation.” And Proclamation 10948, in turn, imposed an entry suspension that, by its terms, expired on Dec. 4, 2025. Because of the preliminary injunction, the defendants did not take steps to implement Trump’s entry suspension—foreign students continued to receive F-1 and J-1 visas to study at Harvard—during its limited term of operation in 2025. Therefore, “the terms of the injunction … have been fully and irrevocably carried out.” University of Texas v. Camenisch, 451 U.S. 390, 398 (1981). The preliminary injunction no longer enjoins any conduct by the defendants, and Proclamation 10948 no longer suspends the entry of any foreign students for study at Harvard.
Given that the preliminary injunction is now moot, so, too, is the appeal, because the only issue on appeal is “whether the District Court … abused its discretion in issuing a preliminary injunction,” id. at 393, and there’s nothing the court of appeals could do that might “affect the parties’ rights with respect to the injunction [it is] called upon to review,” Honig v. Students of California Sch. for the Blind, 471 U.S. 148, 149 (1985) (per curiam). (Moreover, and in contrast to typical mootness cases, the expiration of the preliminary injunction’s effect in this case was caused by the party asking the court for relief (the government on appeal), rather than by the party trying to resist further court adjudication.)
III.
The fact that the government’s appeal of the preliminary injunction is moot, however, does not necessarily mean that the case as a whole is moot. To the contrary, it isn’t.
From all that appears, the reason President Trump failed to extend Section 1 of the Proclamation was not that he changed his mind about Harvard, or that he thought the relevant facts had materially changed. It was, instead, merely a function of the fact that there was a preliminary injunction in place on Dec. 4, 2025 that prohibited implementation of Proclamation 10948’s entry suspension. Indeed, at oral argument last week, DOJ attorney Tiberius Davis represented to the court of appeals, based upon his conversations with people at the White House, that President Trump would likely reissue the Proclamation, or something very similar to it, if and when the courts make clear that no existing injunction would prohibit its implementation.
In effect, therefore, this is a case involving a defendant’s “voluntary cessation of a challenged practice” after the case was initiated—a development that moots a case only if the defendants demonstrate that it’s “absolutely clear” that the challenged practice cannot “‘reasonably be expected to recur.’” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000). This “‘formidable burden’” applies to government defendants and private defendants alike. Federal Bureau of Investigation v. Fikre, 601 U.S. 234, 241 (2024). And here, the defendants can’t possibly satisfy that formidable burden, given that they’ve already conceded that President Trump likely will “return to his old ways.” United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953); see also Fikre, 601 U.S. at 241.
Accordingly, Harvard can continue to seek permanent relief against the defendants in the district court. See University of Texas v. Camenisch, 451 U.S. at 394 (explaining that although the only issue on appeal—the propriety of the preliminary injunction—“has become moot,” nevertheless “the case, as a whole, remains alive because other issues have not become moot,” and accordingly “the case must be remanded to the District Court for trial on the merits”). Indeed, if the court of appeals were to dismiss the government’s appeal as moot, Harvard could in the first instance move Judge Burroughs to issue another preliminary injunction—one that would apply to forthcoming Harvard-specific entry suspensions and student visa denials—while the judge considers whether to grant permanent relief.
I can imagine two relatively minor complications Harvard and Judge Burroughs might encounter if Harvard seeks such permanent or preliminary relief. First, because the two visa-related paragraphs of the “Request for Relief” in Harvard’s amended complaint (paragraphs F and G) ask the court to issue injunctions that would be specifically tied to implementation of Proclamation 10948, perhaps Harvard should amend its complaint once again to ask for relief against any possible future Harvard-specific F-1 and J-1 visa denials, including those that might be required by a “follow on” presidential proclamation. (On the other hand, perhaps such an injunction is encompassed by the catch-all request in Harvard’s complaint for the court to “[g]rant other such relief as this Court may deem equitable, just, and proper,” in which case no amendment would be necessary.)
Second, as the judges and counsel discussed at oral argument in the court of appeals, Trump might predicate any such “follow on” proclamation upon a different set of presidential findings than the inadequate, pretextual predicates Trump offered in Proclamation 10948 back in June 2025. Therefore, unless Judge Burroughs were to conclude that any Harvard-specific suspension of visas is unlawful, she might have to provide, in a new preliminary or permanent injunction, that the defendants may not implement any Harvard-specific suspension of student entry unless and until they demonstrate that such a suspension was not based upon constitutionally protected conduct by Harvard or upon other legally inadequate predicates (such as those described in Proclamation 10948).
Those details aside, however, I don’t see why Harvard may not continue to seek preliminary and permanent relief in the district court, even though the government’s appeal of the June 2025 preliminary injunction is now moot.
- * The Proclamation also suspended entry of foreign nationals for study at Harvard on “M-1” visas, which are provided to individuals pursuing vocational or nonacademic studies other than language training. Harvard, however, is not currently certified to enroll M-1 visa students, and therefore that aspect of the Proclamation isn’t at issue in the appeal. ↑
