Department of Homeland Security v. Regents of the University of California, 591 U.S. ___, 140 S. Ct. 1891 (2020)
This case sits at the intersection of administrative law and immigration policy, testing the limits of executive branch discretion when reversing prior administrations' programs. The Department of Homeland Security's 2017 attempt to rescind Deferred Action for Childhood Arrivals (DACA) raised a fundamental question under the Administrative Procedure Act (APA): when an agency changes course on a program that has conferred concrete benefits and engendered extensive reliance interests, what process and reasoning does the APA require?
1) Is DHS's decision to rescind DACA reviewable under the APA, or is it committed to agency discretion by law? 2) If reviewable, did DHS provide a reasoned explanation for rescinding DACA as required by the APA's arbitrary-and-capricious standard, including consideration of reasonable alternatives and reliance interests? 3) Did plaintiffs plausibly allege an equal protection violation based on discriminatory animus?
Under the APA, a reviewing court must set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, 5 U.S.C. § 706(2)(A). An agency changing policy must show awareness of the change and provide good reasons for it, and when prior policy has engendered serious reliance interests, the agency must consider those interests and weigh them appropriately. See Motor Vehicle Manufacturers Ass'n v. State Farm (1983) and FCC v. Fox Television Stations (2009). Agency action is judged on the reasons given at the time of the decision; post hoc rationalizations by counsel or later officials cannot supply new justifications. See SEC v. Chenery (Chenery I and II). The APA's exception for actions committed to agency discretion by law, 5 U.S.C. § 701(a)(2), is narrow and applies only where there is truly no law to apply. Equal protection claims against federal executive action are analyzed under Arlington Heights; plaintiffs must plausibly allege discriminatory purpose, not merely disparate impact.
1) Reviewability: The rescission of DACA is reviewable under the APA; it is not committed to agency discretion by law. 2) Merits under the APA: DHS's rescission was arbitrary and capricious because the Acting Secretary failed to consider important aspects of the problem, including the option of retaining forbearance while eliminating associated benefits and the significant reliance interests engendered by DACA. The later Nielsen memorandum could not provide new reasons post hoc. 3) Equal protection: Plaintiffs' equal protection claim was inadequately pleaded and fails. The Court set aside the rescission and remanded to DHS for further consideration; it did not reach the notice-and-comment claims.
Regents is a cornerstone of modern administrative law for three reasons. First, it reaffirms that even high-salience executive actions in immigration are reviewable when they entail more than case-by-case nonenforcement and implicate settled benefits. Second, it operationalizes State Farm and Fox in the context of program rescissions, emphasizing two duties: consider viable, narrower alternatives and meaningfully account for reliance interests. Third, it polices the Chenery principle by refusing to accept post hoc rationales offered by later officials or litigators. For law students, the case offers a template for briefing APA challenges to policy reversals and illustrates the difference between procedural adequacy and substantive legality. It shows how courts can grant relief—vacatur and remand—without dictating policy outcomes, and it highlights how equal protection claims against facially neutral executive decisions must be pled with particularity under Arlington Heights.