Stuart M. Gerson and Robert E. Wanerman, Members of the Firm in the Health Care & Life Sciences practices, in the firm’s Washington, DC, office, co-authored an article in Law360, titled “DACA Ruling Raises Bar for Assertions of Agency Deference.” (Read the full version – subscription required.)

Following is an excerpt:

The government’s approach to administrative law matters took another blow recently when the U.S. Supreme Court, in an opinion written by Chief Justice John Roberts, blocked the government from terminating the controversial Deferred Action for Childhood Arrivals program in U.S. Department of Homeland Security v. Regents of the University of California. The ruling preserves administrative protections for hundreds of thousands of young unauthorized immigrants who have lived most of their lives in the U.S.

The court did not rule on the validity of the DACA program, but remanded the matter to the Department of Homeland Security for further proceedings.

This decision is the latest chapter in the line of cases where courts have refused to defer to the determinations of administrative agencies that either fail to follow the requirements of the Administrative Procedure Act or fail to make a good faith effort to comply.

Indeed, the DACA case was issued only about a week short of the first anniversaries of two major decisions by the Supreme Court in the previous term, U.S. Department of Commerce v. N.Y. and Kisor v. Wilkie, each of which rejected deference in the type of matters where, in the past, agency discretion was honored to the point that evidence of regulatory motive or compliance with the rulemaking process received no consideration at all.

Kisor arose in the context of previous Supreme Court decisions Chevron U.S.A. v. Natural Resources Defense Council, Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which endorsed the concept of deference to agencies in their interpretations of statutes that they administer, and the interpretation of regulations that they have promulgated.

Although these decisions have been the subject of criticism, the court declined to overrule Auer; instead, in Azar v. Allina Health Services, the lead opinion authored by Justice Elena Kagan articulated a series of procedural hurdles that have to be cleared before a court can consider deferring to an agency’s decision. In the end, Azar held that the Veteran’s Administration failed to use the appropriate administrative tools and the case was remanded to the agency.


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