Requiring the Executive to Turn Square Corners: The Supreme Court Increases Agency Accountability in Department of Homeland Security v. Regents of the University of California

Authors

Claudia J. Bernstein, Penn State Dickinson Law

Abstract

Administrative agencies frequently promulgate rules that have dramatic effects on peoples’ lives. Deferred Action for Childhood Arrivals (“DACA”) is one such example. DACA grants certain unlawful immigrants a temporary reprieve from deportation, as well as ancillary benefits such as work permits. In 2017, the Department of Homeland Security (“DHS”) sought to rescind DACA on the basis that the program violates the Immigration and Nationality Act.

This Comment analyzes the recent Supreme Court decision about DACA’s recission in Department of Homeland Security v. Regents of University of California. In rejecting DHS’s attempt to rescind DACA, the Court strengthened agency accountability in several important ways. The Court reaffirmed that the Administrative Procedure Act’s (“APA”) discretion exemption is extremely narrow. It also arguably created a way for courts to fault agencies for failing to consider nonreviewable discretionary policies. Additionally, the Court strengthened the post hoc justification doctrine.

This Comment also argues that Regents foreclosed agencies from relying on statutory abnegation—that is, disclaiming legal authority previously claimed—to rescind a policy. This deregulatory strategy is problematic because agencies that use it often attempt to circumvent traditional administrative law procedures. By repudiating statutory abnegation, the Supreme Court took another step to ensure that agencies remain accountable to the people whom their policies affect.

More broadly, the Court’s decision in Regents is part of a line of recent administrative law cases in which the Court has increased agency accountability. In several of these cases, the Court found that the APA’s discretion exemption does not apply to an agency action, even where the agency had good cause to believe it should. The Court also recently took steps to curtail the Auer deference doctrine. Read together, these cases establish that agencies must “turn square corners” when promulgating policies, or else risk being reversed in court.

Recommended Citation

Claudia J. Bernstein, Requiring the Executive to Turn Square Corners: The Supreme Court Increases Agency Accountability in Department of Homeland Security v. Regents of the University of California, 126 Dick. L. Rev. 591 (2022).
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol126/iss2/9