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Keywords

Immigration; Regents; Administrative Law; Civil Rights; Human Rights; Public Interest

Abstract

Arbitrary and capricious review under the Administrative Procedure Act (APA) operates as an important agency-accountability tool when invoked as intended. But the recent U.S. Supreme Court case Department of Homeland Security v. Regents of the University of California and subsequent lower federal court cases have opened the floodgates to a more searching and potentially activist review. In Regents, the Court held that the administration of President Donald J. Trump could not rescind the discretionary immigration program Deferred Action for Childhood Arrivals (DACA) in the manner the U.S. Department of Homeland Security (DHS) attempted, in part because DHS failed to consider the reliance interests of regulated entities and beneficiaries. Since Regents, lower federal courts have operated under a more open understanding of reliance interests. Without subsequent cabining by the Supreme Court, review is vulnerable to partisan manipulation and may stifle agency action.

Nonetheless, administrative reliance remains a powerful tool, particularly for noncitizen litigants raising arguments against rescissions of liminal statuses akin to DACA. Without guidance from the Supreme Court, it is not entirely clear who may raise a reliance interest, what constitutes a cognizable interest, and the extent to which an agency must consider such interest. This Note traces the history of administrative reliance, its invocation in lower federal courts, and recent Supreme Court cases in which reliance interests are raised. It then proposes a framework that protects the rights of those at the heart of administrative reliance: people, particularly those with little to no ex ante influence on agency policymaking.

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