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Prof. Glenn Smith on Ninth Circuit’s Decision to Keep DACA in Place

Prof. Glenn Smith

Nov. 8, the US Court of Appeals for the Ninth Circuit became the first appellate court to enter one of the most high-profile legal fights against the Trump Administration, writes California Western’s Prof. Glenn Smith in a recent op-ed in the Jurist.

In lead and concurring opinions running 99 pages, three appellate judges in Regents of the University of California v. U.S. Department of Homeland Security affirmed a district court’s preliminary injunction requiring the Administration to keep the Obama-era Deferred Action for Childhood Arrivals (DACA) program in place pending further proceedings.

The Ninth Circuit’s Regents decision increases the likelihood that the U.S. Supreme Court will enter the fray, continues Prof. Smith.

Looking beyond whether Regents will lead to one of the biggest cases in this Supreme Court term and the first major test of how new Justice Kavanaugh will resolve challenges to actions by the president who appointed him, Prof. Smith discusses four reasons why Regents is important.

First, writes Prof. Smith, Regents provides a prominent new example of when a challenged governmental policy ends up being litigated—the issues can be much narrower than and different from how the controversy plays out in the political branches, the media, and the public.

A second reason why Regents is important is that it nicely illustrates how reliance on an Administrative Procedure Act (APA) arbitrary-and-capricious-action theory directs the legal analysis. Relying on the APA required the two appellate judges forming the lead Regents opinion to decide what they termed the “pivotal” threshold question—whether the DACA rescission was reviewable by any court.

Third, the Regents litigation illustrates the potential potency of administrative law doctrines as weapons against a new administration’s enforcement-policy changes, but Regents also points to the inherent limitations of this strategy.

As to potency, there is the simple reality that the APA-challenge strategy has successfully scuttled DACA rescission for more than a year. (Even if a mid-summer Supreme Court reversal of Regents clears the way for DACA rescission, that would be an almost two-year delay.)

Prof. Smith’s fourth and final observation is that Regents and the broader DACA-rescission litigation pose especially difficult versions of questions typically looming behind the seemingly obscure administrative-law doctrines.

Ultimately, concludes Prof. Smith, Regents and the DACA-rescission controversy raise fundamental questions about the extent to which regulatory-policy continuity—and, specifically, stability in the legal theory behind regulation—is an important dimension of the rule of law.

Read Prof. Glenn Smith’s complete Jurist op-ed here: