Chapter Three

Updates


Updates or developments to materials discussed in chapter three

Page 242. Add the following to Note 3.
   
A more recent example of the same judicial move is Bittner v. United States, 598 U.S. 85 (2023). The case is perhaps most notable for its unusual lineup: a 5-4 decision with an opinion for the Court by Justice Gorsuch joined in full only by Justice Jackson and in part by Roberts, Alito, and Kavanaugh, and a dissent by Justice Barrett joined by Justices Thomas, Sotomayor, and Kagan. Justice Gorsuch invokes Skidmore in rejecting the government’s reading of a provision of the Bank Secrecy Act:

Doubtless, the government’s guidance documents do not control our analysis and cannot displace our independent obligation to interpret the law. But this Court has long said that courts may consider the consistency of an agency's views when we weigh the persuasiveness of any interpretation it proffers in court. Skidmore. Here, the government has repeatedly issued guidance to the public at odds with the interpretation it now asks us to adopt. And surely that counts as one more reason yet to question whether its current position represents the best view of the law.

In a footnote, he added:

Our point is not that the administrative guidance is controlling. Nor is it that the government's guidance documents have consistently endorsed Mr. Bittner’s reading of the law. It is simply that, when the government (or any litigant) speaks out of both sides of its mouth, no one should be surprised if its latest utterance isn't the most convincing one. This is no new principle in the law any more than it is in life. In Skidmore, this Court noted that the persuasiveness of an agency's interpretation of the law may be undermined by its inconsistency “with earlier [agency] pronouncements.”

Pages 243-315. Part C of Chapter 3 is replaced in its entirety.

In June 2024, the Supreme Court overruled Chevron U.S.A., Inc. v. Natural Resources Defense Council. See Loper Bright Enterprises, Inc. v. Raimondo, 144 S. Ct. 2244 (2024). As a result, this section requires complete revision. Please substitute all of Part C with this version.


Page 382. Add a new note 8.

     8. In 2022, prompted by a memorandum from President Biden instructing the Secretary of Homeland Security to “take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA,” DHS completed a rulemaking encoding DACA in a substantive regulation rather than a policy statement. The preamble to the final rule states:

      This rule embraces the consistent judgment that has been maintained by the Department—and by three presidential administrations since the policy first was announced—that DACA recipients should not be a priority for removal. It is informed by the Department’s experience with the policy over the past 10 years and the ongoing litigation concerning the policy’s continued viability. It reflects the reality that DACA supports the Department’s efforts to more efficiently allocate enforcement resources, by allowing DHS to focus its limited enforcement resources on higher-priority noncitizens. It also is meant to preserve legitimate reliance interests that have been engendered through the continued implementation of the decade-long policy under which deferred action requests will be considered, while emphasizing that individual grants of deferred action are an act of enforcement discretion to which recipients do not have a substantive right. . . .

      DHS recognizes that this rule comes in the wake of prior attempts to wind down and terminate the DACA policy. In rescission memoranda issued, respectively, by then-Secretary Kirstjen Nielsen and then-Acting Secretary Elaine Duke, DHS cited potential litigation risk as one reason that winding down and terminating DACA was warranted. But upon further consideration, it is DHS’s view that those prior statements failed fully to account for all the beneficial aspects of the DACA policy for DHS as well as for many other persons and entities, which in DHS’s view outweigh the costs. The position taken in the Duke and Nielsen Memoranda placed undue weight on litigation risk, failing to account for all the positive tangible and intangible benefits of the DACA policy, the economic and dignitary gains from that policy, the length of time that DACA opponents waited to challenge the policy, and the risk that rescinding DACA would itself expose DHS to legal challenge—a risk that indeed materialized in the Regents litigation. In short, proper consideration of all pertinent factors on balance establishes that the DACA policy is well worth the agency resources required to implement it and to defend it against subsequent legal challenges.

DHS, Deferred Action for Childhood Arrivals, 87 Fed. Reg. 53152 (2022) (promulgating new 8 CFR §§ 236.21-235.25).

     Much of that explanation reads as if it was written with arbitrary-and-capricious review in mind, does it not?

      Nine Republican-led states challenged the rule in federal District Court for the Southern District of Texas, which held that the rule was invalid because it was not materially different than the 2012 Memorandum. Texas v. United States, 691 F. Supp. 3d 763 (S.D. Tex. 2023). An appeal is pending.

See Chapter 5 update to casebook page 519.