On June 18, the U.S. Supreme Court struck down the Trump administration's rescission of the Obama administration's immigration relief program known as Deferred Action for Childhood Arrivals (DACA). In explaining and then defending its DACA rollback, the Trump administration had raised an array of claims that, if accepted, would have undercut numerous regulatory rule of law fundamentals. Instead, the Court strengthened these longstanding requirements. Department of Homeland Security (DHS) v. Regents will become central to battles over the many Trump administration rollbacks and reversals of environmental and other regulations.
In the Trump DACA rescission, the administration relied heavily on an argument it has often deployed to justify regulatory rollbacks. It claimed that the Obama administration DACA policy was so legally flawed that the Trump team had no choice but to reverse the policy. And in this DACA rescission, like many of its environmental regulatory rollbacks, the Trump regulators provided little more than conclusory analysis of reliance interests flowing from the earlier action and similarly skimpy analysis of effects of the new actions. Similarly flawed approaches combining new disavowals of legal authority with skewed and often conclusory analysis of effects are especially evident in climate deregulatory actions and the "waters of the United States" rollback, but in many other actions as well. (For more analysis of such arguments, which I've earlier called "statutory abnegation" claims, see William W. Buzbee, Agency Statutory Abnegation in the Deregulatory Playbook, 68 Duke Law Journal 1509 (2019))
The Supreme Court majority, in an opinion by Chief Justice John Roberts, agreed with challengers that the Trump action violated a litany of regulatory rule of law fundamentals. It strongly reaffirms lines of Supreme Court cases stating that agencies changing regulatory policies must: 1) act with an appropriate understanding of the scope of their authority and their own past claims about legal authority, 2) analyze reliance interests flowing from the earlier regulatory action now being undone, 3) assess how any possible corrective or new action might be tailored to avoid harms associated with unsettling such reliance interests, or at least grapple with such interests and other effects, and then justify the choice, and 4) stick with its initial contemporaneous explanation for the policy change.
Hence, when future courts conclude that other Trump deregulatory actions were rooted in agency errors about their legal power or sidestepping of effects analysis, this case will be a major precedent. Such agencies, like DHS, will have to try again, grappling correctly and fully with relevant law, providing comparisons of their old and new legal claims, and analyzing effects of the old and new actions.
In making clear that the agency's original "contemporaneous" explanation is what must justify an agency action, the Court acknowledges that agencies have a bit of room to "elaborate" on their initial explanation. However, an agency that belatedly realizes it provided a legally flawed explanation and wants to provide new justifications will have to start again. The agency may have had room to adjust its immigration enforcement policy, the Court says, but under the APA, it still needs to stick with the reasons it initially provided. Agencies cannot "cut[] corners," nor can they provide later, new "post hoc rationalizations."
So Trump agencies and lawyers are stuck with their often flawed and poorly explained actions. That agencies often have room to adjust policies — a common situation that the Court acknowledges — does not mean they can do so without the procedures and reasoned explanation long required. Agencies that short-circuit their analytical and reasoning obligations will be found in violation of the Administrative Procedure Act (APA).
Another passage that could become important is the Court's strong affirmation of the presumption of judicial review. Policy shifts, even if concerning enforcement policies where agencies wield broad discretion, do not escape judicial scrutiny.
Overall, the Court has yet again strongly reaffirmed the regulatory rule of law fundamentals about agency policy change obligations set forth in the Supreme Court's earlier State Farm, FCC v. Fox, and Encino Motorcars cases. If the Trump administration thought its many fast-tracked and poorly reasoned deregulatory actions would be affirmed by a friendly Supreme Court, yesterday's rejection dashes that expectation, much as the Court last year dashed such hopes in rejecting the Trump administration's effort to add a citizenship question to the census. DHS v. Regents will become a central citation in the dozens of cases challenging Trump administration rollbacks. And within agencies and the executive branch, this case's affirmation of regulatory rule of law fundamentals will have good-government effects, empowering regulators seeking to provide full and honest analysis of their legal authority and effects of regulatory actions.
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William Buzbee | June 19, 2020
On June 18, the U.S. Supreme Court struck down the Trump administration's rescission of the Obama administration's immigration relief program known as Deferred Action for Childhood Arrivals (DACA). In explaining and then defending its DACA rollback, the Trump administration had raised an array of claims that, if accepted, would have undercut numerous regulatory rule of law fundamentals. Instead, the Court strengthened these longstanding requirements. Department of Homeland Security (DHS) v. Regents will become central to battles over the many Trump administration rollbacks and reversals of environmental and other regulations.
Daniel Farber | June 18, 2020
On June 16, the D.C. Circuit Court of Appeals decided two cases that add to the legal difficulties the Trump EPA will face in court. The difficulties relate to two proposed EPA rules that attempt to hamstring future efforts to impose tighter restrictions on pollution. Both EPA rules rely on vague, general grants of rulemaking authority from Congress. That just became more tenuous.
Darya Minovi | June 18, 2020
A blog post published last month by the Chesapeake Bay Program, a collaborative partnership focused on Bay restoration, addressed the many ways that the climate crisis will affect farms in the region. Data from the program shows temperatures on Maryland’s Lower Eastern Shore, home to a high concentration of industrial poultry farms, increased between 2 to 2.5 degrees Fahrenheit, on average, between 1901 and 2017. By 2080, temperatures in the Chesapeake Bay watershed are projected to increase by 4.5 to 10 degrees, posing a serious risk of heat stress to farmworkers and livestock.
Thomas McGarity | June 17, 2020
Governments and industries are "reopening" the economy while COVID-19 continues to rage across the United States. At the same time, the lack of effective, enforceable workplace health and safety standards puts workers and the general public at heightened risk of contracting the deadly virus. In a new report from the Center for Progressive Reform, Sidney Shapiro, Michael Duff, and I examine the threats, highlight industries at greatest risk, and offer recommendations to federal and state governments to better protect workers and the public.
Katlyn Schmitt | June 16, 2020
On June 9, the House Energy and Commerce Committee's Subcommittee on Environment and Climate Change held a remote hearing, “Pollution and Pandemics: COVID-19’s Disproportionate Impact on Environmental Justice Communities.” The Center for Progressive Reform, joined by Fair Farms, Sentinels of Eastern Shore Health (SESH), and the Sussex Health and Environmental Network submitted a fact sheet to subcommittee members outlining the impacts of COVID-19 on the Delmarva Peninsula, along with a number of recommendations for building a more sustainable model for the region. The area is home to a massive poultry industry, hit hard by the coronavirus pandemic. We addressed several of the most severe problems in our fact sheet.
Michael C. Duff | June 15, 2020
While I suspect that workers' compensation claims, even without the aid of workers' compensation causation presumptions, may fare better than some actuaries suspected (preliminary scuttlebutt of about a 40 percent success rate is higher than I expected), there is no reasonable doubt that large numbers of workers will ultimately go uncovered under workers' compensation during the COVID-19 pandemic.
Katlyn Schmitt, William Andreen | June 11, 2020
We are five years out from the final 2025 deadline for the Chesapeake Bay cleanup agreement, known as the Bay Total Maximum Daily Load (TMDL). With the approval of the U.S. Environmental Protection Agency (EPA), each of the Bay states has finalized the three required phases of their Watershed Implementation Plans (WIPs). This month, those states have released their draft 2020-2021 milestones, which, when final, will set out the key short-term goals states will work toward, stepping up their restoration work so that they can stay on track to meet their final 2025 pollution reduction goals.
Brian Gumm, Katie Tracy | June 11, 2020
In a June 11 order, the D.C. Circuit Court of Appeals denied an AFL-CIO writ of mandamus asking the court to compel the Occupational Safety and Health Administration (OSHA) to do more to protect workers from infectious diseases, such as COVID-19. The order continues the dangerous status quo of workers laboring with no enforceable protections from the highly contagious and deadly virus.
Alice Kaswan | June 10, 2020
Black lives matter. As we contemplate the scope of structural racism, we find that “Black Lives Matter” needs to be said over and over again. We say it as we push for policing that protects rather than threatens. And we can keep saying it. Like when we talk about having available, affordable health care. Having access to technology and broadband, a quiet space, and time when the classroom becomes off limits due to a pandemic or climate-driven extreme weather. Finding an affordable place to live and landlords who don’t discriminate. Finding meaningful work and getting a promotion. Finding fresh food. Getting respect. And then there’s the environment. We still see stark disparities in exposures to environmental harms in our country.