If you’re an immigration attorney since the presidential election, your clients have probably been calling you non-stop. Mine have. Many seem to think that our immigration system, battered by 4 years of relentless assault by the previous administration, will now quickly revert to normal. After the inauguration, these types of questions have only accelerated in pace, and in talking to your clients you may have detected a growing frustration with the slow pace of change. After all, we keenly remember that in its first few months, the Trump administration enacted sweeping changes by executive order and proclamation, including rescission of Deferred Action for Childhood Arrivals (DACA), travel bans and massive changes to enforcement policies and asylum law. Clients, therefore, understandably expect the Biden Administration to quickly and with a stroke of a pen undo the prior administration’s policies and replace them with new, humane alternatives. While some of the policies have already been undone, the changes won’t happen overnight. When I explain to clients some of the reasons this likely will not occur quickly, I usually mention factors such as bureaucratic inertia, legislative gridlock and plain old politics. And of course, it’s almost always easier to tear something down than it is to build. But one fundamental, crucial reason for the relatively incremental rate of change is and will continue to be the Administrative Procedure Act (APA), a law most of the public has likely never heard of. So maybe we should all just cut to the chase and start telling our clients about the APA.
Since the expansion of the Administrative State, the APA has been a sort of Bill of Rights for millions of Americans whose daily lives are directly impacted by federal agency rules and regulations. Over the years, it has been invoked by plaintiff organizations from across the political spectrum as the basis for countless lawsuits against the federal government, and for good reason: it was originally enacted by a reactionary congress in 1946 in response to “New Deal” federal agencies created by FDR to help the depression-era economy. Conservative elements in Congress grew concerned about the expanding powers of the federal government. And it is this conservative tool that plaintiffs used so deftly to blunt many of the worst immigration policy abuses during the Trump Administration.
The APA has four main functions: 1) it governs how federal administrative agencies can propose and implement regulations, by imposing uniform standards and procedures on rule making; 2) it provides a formal process for federal courts to directly review agency decisions, including agency changes to rules and regulations; 3) it allows for public participation in the process of rulemaking, via the “notice and comment” process; and, 4) it requires agencies to inform the public as to their organization, rules and procedures. Sounds simple enough, but in practice, the APA is very complicated and powerful: it was the APA, for example, that saved DACA last year at the Supreme Court—and by only one vote (Justice Roberts), no less.
Because of the APA, the process of rulemaking by executive order can be a double-edged sword for any administration. For example, the APA was recently relied upon by a district court in Texas to provide a preliminary victory to the State of Texas in a lawsuit challenging the Biden administration’s one hundred day pause on deportations. The U.S. District Court in that case found that the directive temporarily halting removal of individuals with final orders may violate the APA, as it was “arbitrary and capricious.” Or, as Fox News stated in a headline on its website: “Biden Deportation Ban Tripped Up by Same 73-Year-Old Law that Hampered Trump Executive Orders.”
Of course, the headline refers to Trump executive orders that were ruled by courts to be in actual violation of the APA, while the Texas Court’s ruling is merely preliminary. It would become dangerous indeed if in the future APA violations became merely the product of whether the Judge reviewing the case was appointed by a Democrat or Republican. But there’s reason for optimism. The Trump administration—for better or for worse—was uniquely ideological and uniquely inexperienced in law and governance, a perfect combination for committing APA violations. The Biden administration—again, for better or for worse—appears to have a deeper bench with expertise in navigating the Administrative State. Love it or hate it, the APA is one of the most powerful weapons an opposition group can wield when out of power. When Biden supporters inevitably begin to chafe at the slow pace of change mandated by APA compliance, they would do well to remember that not so long ago, the APA was their best friend. And it’s definitely here to stay.
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