Posted on July 15, 2020 by Jana Schwartz

"Commentary: Ruling on DACA a protection from partisan flip-flopping", op-ed written by UTSA Public Administration Associate Professor and Department Chair, Dr. Francine S. Romero, featured in San Antonio Express News.

Click for article in Express News.


Opinion // Commentary

Commentary: Ruling on DACA a protection from partisan flip-flopping

By Francine Romero, For the Express-News June 22, 2020

People hold signs during a rally in support of the Supreme Court's ruling in favor of the Deferred Action for Childhood Arrivals (DACA) program, in San Diego, California last week. The Supreme Court's decision insulated administrative law from partisanship. In order to change an existing rule, agencies must provide a better reason than simply disagreeing with it.

Photo: SANDY HUFFAKER /AFP via Getty Images

Finally, the decision we have all been waiting for — one that elevates the intricacies of the Administrative Procedure Act into the national dialogue.

OK, I know most people were interested in Thursday's U.S. Supreme Court ruling in Department of Homeland Security v. Regents of the University of California — the Deferred Action for Childhood Arrivals case — for its policy and political implications. But it was, in fact, a case hinging on administrative law, a shadowy topic that is nevertheless crucial to our democracy.

While our elected officials and the laws they pass naturally receive a great deal of attention, the final shaping and implementation of those laws is handled by a vast bureaucracy. Whether you love or hate government regulations, they are significantly influenced by this huge, but sometimes hidden, "fourth branch" of government. And while the Constitution provides rules and structure for the U.S. Congress, president and courts, it says virtually nothing about the bureaucracy since it was nonexistent in any significant form until the late 19th century. But as its size and power increased, concerns grew about the lack of any limits on its power.

Enter the Administrative Procedure Act, or APA, passed by Congress in 1946, and effectively the constitution of the administrative branch. Among other things, it protects us from agencies misusing their power and from presidents who might use those agencies as surrogates for an end run around congressional authority.

The recent DACA decision involved competing interpretations of a multitude of APA provisions but primarily rested on two.

First, whether DACA itself was an overreach by President Barack Obama, using his rule-making authority as head of the executive branch to make law, a power reserved for Congress. While Justice John Roberts' majority opinion deflects that charge, Justice Clarence Thomas' dissent portrays DACA as unlawful from the start and thus ripe for repeal.

The second and related question is whether the Trump administration's reversal of the program was itself a violation of the APA. While all agree the Department of Homeland Security has the right to rescind DACA, the question is whether the proper procedures were followed. On this count, the majority ruled they were not.

The APA precludes any agency action that is “arbitrary and capricious,” and the majority found that in the absence of a clear justification for reversal, the action fails that test. This provision is generally meant to preclude bureaucratic rules that undermine the public good. In particular, it protects us from shifting partisan control resulting in an ongoing flip-flop of regulations driven solely by the ideology of the party in power. In short, to change an existing rule, agencies must provide a better reason than simply disagreeing with it.

Acknowledging the expectation of a rigorous standard for the Department of Homeland Security in this regard, Roberts reminds us of precedent stating that while “men must turn square corners when they deal with the Government,” government in response must “turn square corners in dealing with the people.” Shortcuts should not be taken. Thomas and the dissenters reject that argument as setting the arbitrary and capricious bar much too high.

Their point is significant, too. While it is important to retain control over these agencies, they must also be granted discretion to use their expertise without second-guessing by courts.

Whether we agree or disagree with the outcome, all of these arguments are crucial to understanding the role that agencies play in our government. That the future of DACA, at least for now, was decided by a robust discussion on how to interpret the Administrative Procedures Act emphasizes both the significance of the bureaucracy and the import of the rules that it must follow. Consider reading this important decision in its entirety to gain the full impact of this dialogue.

Francine Romero is the chair of the Public Administration Department at UTSA.

— Jana Schwartz