//  11/6/19  //  Commentary

The Supreme Court will hear oral arguments next week about whether the Trump Administration can unwind DACA, the Obama Administration’s policy of “Deferred Action for Childhood Arrivals.”  Under the DACA program, the government invited large numbers of undocumented immigrants who arrived in the United States as young children and met other criteria to apply for renewable two-year promises of non-deportation.  Out of understandable sympathy for DACA’s beneficiaries, progressive groups (among others) have largely lined up against the government in these cases.  The long-term implications of a decision in their favor, however, could be quite adverse to progressive goals. 

The Obama Administration did not have specific statutory authority for DACA.  Instead, the administration relied on an aggressive theory of enforcement discretion.  It argued, in effect, that promising non-deportation to DACA beneficiaries was no different from turning a blind eye to a legal offense like speeding or shoplifting—something police and prosecutors do on a daily basis so as to focus limited resources on more pressing violations.

As I pointed out at the time, this logic was flawed.  Enforcement discretion is a power to prioritize; it is not a power to grant broad prospective relief from legal obligations, as DACA effectively did.  Even the government acknowledged, however, that the necessary consequence of its legal theory was that relief under the program was revocable.  The administration was (ostensibly) just indicating how it would enforce the law.  Accordingly, the law itself still applied; DACA beneficiaries could lose their deferrals if the government changed its mind.

Why, then, can the Trump Administration not revoke the relief?  In essence, the argument now before the Supreme Court, which a number of lower courts have accepted, is that even if the administration could end DACA for other reasons, it cannot do so based on the reasons it has given.

To my mind, this argument is weak, and in a less fraught context courts would uniformly reject it.  It is true that the Administrative Procedure Act requires agencies to give reasons for their actions that are not “arbitrary and capricious.”  In this context, however, any judicial arbitrariness review under the APA should be highly deferential.  The executive branch is supposed to be executing the law; the Constitution obligates the President to “take Care that the Laws be faithfully executed.”  Restoring a deliberately unenforced law to effect should therefore be presumptively valid.  What is more, imposing a heavy burden of explanation on such reversals would weaken the main constraint on converting discretion over enforcement into a power to unilaterally suspend laws a President dislikes.  As DACA itself illustrates, it is mainly the back-end revocability of enforcement policies that limits their utility as devices for altering front-end legal obligations for regulated parties.

From this point of view, the government’s explanations here, though perhaps a bit terse and imprecise, should have sufficed to justify the policy change.  In its initial explanation, the administration indicated that it believed DACA was illegal and that in any event it feared a court would enjoin it.  Both points were correct, or at the very least reasonable.  In any case, this sort of litigation-risk calculus should have been adequate to explain a discretionary choice to end a discretionary policy.

Further, when given a second chance to explain itself, the administration added that it believed relief for broad categories of immigrants should come from Congress, not executive policy.  It also stated that, given continuing unauthorized border crossings, it was “critically important for [the government] to project a message that leaves no doubt regarding the clear, consistent, transparent enforcement of the immigration laws against all classes and categories of aliens.”

 Without this clarification, an argument might have been made that the government was deflecting blame for a potentially unpopular action by hiding behind allegedly phony legal concerns.  It now seems hard to argue the administration is not taking political responsibility for any harsh effects of revoking DACA.

To conclude otherwise, lower courts have relied in part on Encino Motor Cars LLC v. Navarro and other cases that have required agencies to consider reliance interests when departing from a prior policy.  These cases strike me as inapposite.  Encino involved a change in an agency’s evident interpretation of a substantive conduct rule over which the agency had interpretive discretion.  Here, in contrast, as I pointed out in an earlier post, the applicable statutes clearly allow deportation of the immigrants in question.  The clarity of the substantive law was why the government needed to grant relief instead through an exercise of enforcement discretion:  it could not interpret its way out from under the statutes.  For the same reason, however, the form of relief the government granted must remain revocable at will.

In effect, then, ruling against the government here would require embracing a principle of rigorous judicial review for any revocation of a past administration’s permissive enforcement policies.  In other words, the Supreme Court would need to conclude that even an explicitly non-binding policy that insulates ongoing legal violations from sanction is binding on future administrations, unless and until they make crystal clear that they fully support any harsh effects resulting from the change.

We have now arrived at the trap.  Though the DACA controversy’s political valence obscures this fact, policies of this sort—that is, permissive regulatory policies and enforcement practices that effectively excuse ongoing violations—are if anything more likely to come from Republican presidential administrations than Democratic ones.  The Trump Administration itself fits this pattern:  As one aspect of its generally deregulatory, pro-business administrative agenda, the administration has sharply curtailed enforcement of numerous regulatory statutes, ranging from environmental protections to banking regulations and labor laws.

To its credit, the administration generally has not formalized its lax enforcement practices as explicit policies; it has simply de-prioritized enforcement of laws it disfavors.  Just this week, however, the administration got in the game in a big way:  it issued a “notice of nonenforcement indicating that it will no longer enforce regulations barring discrimination on the basis of sexual orientation, gender-identity, or religion by entities receiving some $500 billion in annual federal health-related grants.  Agencies can change their own regulations, but changing a substantive rule normally requires following notice-and-comment procedures.  In the meantime, the regulations bind the agency as well as regulated parties.

If the DACA beneficiaries win before the Supreme Court, we should expect to see more policies of this sort.  The administration would then have strong incentives to lock in the benefits of its permissive enforcement practices by making those practices explicit and thus encouraging regulated parties’ reliance.  Indeed, even if the government doesn’t issue such express policies, regulated parties might seek judicial review of the government’s reasons for any future change in course, claiming reliance on past permissive understandings, just as the DACA beneficiaries have done.

In short, a loss for the government in the DACA cases would give other regulated parties a potent cudgel for beating back future pro-regulatory policy changes.  Progressive lawyers, to be sure, will come up with many arguments for distinguishing such future cases, but I expect that conservative judges and justices will have little inclination to embrace them.

Nor should they.  Principled consistency across domains is a hallmark of sound legal reasoning.  As I have argued elsewhere, maintaining such consistency is particularly important in moments of deep political division like the present.  In the DACA case, consistency will mean that a progressive win today could carry heavy costs for a future progressive administration.  By the same token, a progressive loss could ensure greater flexibility for pro-regulatory policy in the future.  Each political coalition will have to take the bitter with the sweet.

This post also appeared on the Yale Journal on Regulation’s Notice & Comment blog.

What Happens If The Worst Happens?

10/2/20  //  Quick Reactions

What happens if a candidate dies before the electoral college votes? This came up at my oral argument in the Supreme Court case about electors, but there was no clear resolution.

Can We — And The Press — Maybe Take A Breath On The Whole Stolen Election Thing?

9/25/20  //  Commentary

It seems like a stolen election is all anyone can talk about these days. But it's very unlikely.

Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Civil Rights Corps