Walters, Daniel E.

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Why Proceduralism Won’t Save Usfrom TrumpDaniel E. Walters 2020-08-27T13:50:19Can procedural rules rein in the Trump Administration? Many people got theirhopes up that they can and will, especially after the United States SupremeCourt announced its decision this past June in Department of HomelandSecurity v. Regents of the University of California. The Court vacated the TrumpAdministration’s decision to wind down the popular Obama-era immigration programfor undocumented immigrants who had arrived in the US as children (DeferredAction for Childhood Arrivals, DACA), thus making a lot of new fans of a little-known procedural rule called the Chenery I doctrine. By the time the Departmentof Homeland Security is finished with the Court’s decision, though, Chenery I maylose all of its new fans. Worse, like so many norms in the Trump era, proceduralprotections like Chenery I may sustain a delegitimizing, or at least disillusioning,blow.Before Regents, Chenery I existed largely in obscurity. It holds that the only reasonsthat can sustain an agency’s decision during judicial review are those provided bythe agency itself in justifying its actions. In effect, agencies cannot concoct newreasons for a decision after it is challenged in court—they must defend the rule, ifat all, only on the basis that they articulated at the time of taking the action. Whilelegal scholars like Kevin Stack have previously pointed to Chenery I as foundationalto the rule of law in the administrative state, the doctrine usually plays little rolein challenges to agency decisions, if only because agencies have so thoroughlyinternalized its main lesson: justify everything, and do it from the start. The procedural mistake in the DACA caseIn Regents, a bare majority of the Supreme Court concluded that the Departmentof Homeland Security (DHS) failed even Chenery’s basic test of administrativeprofessionalism. The problems started with the memorandum that initiated therescission of DACA. In articulating how DHS would implement the rescission, then-acting Secretary of Homeland Security Elaine Duke did nothing more than parrotthe reasons offered by Attorney General Jeff Sessions—namely, that DACA wasillegal for the same reasons that a lower court had ruled that a related program,Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA),was illegal. Standing alone, this was never going to survive arbitrariness review.The lower court’s DAPA decision held only that the extension of social benefits toDAPA recipients outside of the normal notice-and-comment rulemaking processviolated administrative law principles. By adopting the lower court’s reasoning as theDepartment’s own, the Duke memorandum never got around to offering any reasonsfor the rescission of the heart of the DACA program: the “deferred action” of removalof eligible applicants. Legal scholar Jennifer Nou has suggested that this may have- 1 -been a deliberate act of bureaucratic resistance to the Trump Administration byacting Secretary Duke. Whatever the reasons for the thin record, the Administration seemed to recognizethe problem. Responding to early signals from the courts that the decision wasinsufficiently reasoned, Duke’s successor, Kirstjen Nielsen, issued a supplementalmemorandum that purported to offer reasons for the rescission of DACA’s corefeatures. Critically, Secretary Nielsen did not present the memo as a replacementof Duke’s memorandum. Had she done so, Chenery likely would have had norelevance to the case. Even the remedy for a Chenery violation is often a remandto the agency to “deal with the problem afresh,” and Nielsen could have taken theshortcut by styling her memorandum as the Department’s standalone justificationof a new rescission. As it was, she instead walked into one of the most avoidablemistakes in recent administrative law history. Almost three years after the initialmemorandum, the Supreme Court held that Nielsen’s memorandum could not beconsidered to be part of the Department’s justification of the rescission, and theDuke memorandum, standing by itself, was arbitrary. Almost immediately, the U.S.Court of Appeal for the Fourth Circuit issued its mandate in the case, ordering DHSto resume accepting new applications for protection under DACA. With its simple,avoidable error, DHS had forfeited the opportunity to deliver a signature policyvictory to the Trump Administration. At least it seemed that way in the afterglow ofthe decision.The bar isn’t terribly highIn late July, the acting Secretary of Homeland Security, Chad Wolf (just todaynominated to be Secretary), announced that the Department would begindismantling DACA yet again, this time keenly aware of its duty to offer reasons forits decisions. Acting Secretary Wolf’s memorandum does much of what DHS hadalways hoped to do. The memo institutes a freeze on new enrollment in the program,restrictions on travel abroad for program beneficiaries, and a stingier renewal regimethan had previously existed. The only thing not included is an intent to rescindthe program—this decision, the memorandum states, will be made at a later date.For now, at least, the Department intends only to exercise “interim” authority totemporarily change DACA. Most importantly, though, the memorandum does farmore than either the Duke or Nielsen memoranda to justify on policy grounds theDepartment’s decision.Although this latest memorandum feels like outright defiance of the spirit of theCourt’s decision in Regents, or at least defiance of the popular narrative that theSupreme Court “saved” DACA, in reality the new order is unlikely to meet the samefate. Some supporters of DACA have tried to pursue a contempt finding in theMaryland District Court in charge of implementing the Fourth Circuit’s mandate toresume taking DACA applications. However, it is not likely to result in any change:technically, DHS was required to end its first rescission attempt, but DHS alwaysretains authority to start fresh. Another line of attack on the new attempt is alsodeveloping, with California Attorney General Xavier Becerra recently filing in the trialcourt a status report stating his intent to challenge any decision inconsistent with a- 2 -lower court’s order after Regents “requir[ing] DHS to resume accepting initial DACAapplications from eligible immigrants, including those who had aged in to eligibilityduring the unlawful tenure of the Duke Memorandum.” Yet any such challenge toan entirely new policy with its own set of justifications will face significant hurdles: ageneral disfavor of reviewing agency discretion to not enforce the law; argumentsthat the new memorandum is not final, reviewable agency action or that it is not anagency rule at all; and, most fundamentally, a light-touch arbitrariness review that theDepartment cannot possibly be inept enough to fail again. The bar is not terribly high—it never really was. A hollow hopeTaking stock of what has happened over these three and a half years, the picturethat emerges is not flattering. Other Administrations might well have been chastenedenough by the Supreme Court’s signal in Regents to rethink their approach.Especially in an election year, the best approach would have been to put DACA onthe ballot instead of the administrative agenda, and then await a decision by thepeople. By issuing the newest memorandum, DHS took a position that, while likelylegally defensible under the paper-thin administrative law jurisprudence governingagency nonenforcement discretion, exploits the trust Americans place in the dialoguebetween courts and agencies. What is concerning about this—beyond the immediateeffects on so many current and would-be DACA beneficiaries—is that there is solittle standing between a determined Administration and its policy goals, howevernoble or ignoble. The entire episode gives new significance to Gerald Rosenberg’sobservation that the Court is ultimately a hollow hope. Some will blame Chief Justice Roberts, the author of the majority opinion in Regentsand the key vote in favor of striking the DACA rescission. Victoria Roeck recentlycriticized the majority for centering on a mere “procedural failure” rather than on thearguments, pressed by the challengers, that the rescission was motivated by racialanimus and was therefore suspect under the Equal Protection Clause of the UnitedStates Constitution. Grounding the error in a correctable procedure, especially inlight of the Trump Administration’s general willingness to cut corners and obliterategoverning norms, arguably opened the door wide for DHS to quickly change course. There is much to say about this reading of the case and this criticism of the ChiefJustice. Roberts has developed something of a knack for crafting narrow and oftenprocedural rebukes to the governing Administration, both during the Obama yearsand during the Trump years. Just one year before Regents, Roberts delivered astrikingly similar blow to the Trump Administration’s efforts to add a citizenshipquestion to the census, finding that the reasons offered in support of that policychange were pretextual. Ever the institutionalist, Roberts seems to believe that theSupreme Court’s long game in what appears to be an escalating conflict betweenthe branches is to insist on procedural fastidiousness at all costs and no matter howlikely it is that the executive branch will respect that kind of proceduralism. ChiefJustice Roberts is putting enormous pressure on administrative procedures, and, atleast in the Regents case, it is not clear how well they are holding up.- 3 -- 4 -

Why Proceduralism Won’t Save Us from Trump

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Why Proceduralism Won’t Save Us from Trump

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