The trump administration didn’t provide a non-capricious rationale for striking down DACA.
Covered here:
Basic purposes
Although each US government agency is constituted within one branch of the government (judicial, legislative, or executive), an agency’s authority often extends into the functions of other branches. Without careful regulation, that can lead to unchecked authority in a particular area of government, violating the separation of powers, a concern that Roosevelt himself acknowledged. To provide constitutional safeguards, the APA creates a framework for regulating agencies and their roles. According to the Attorney General’s Manual on the Administrative Procedure Act , drafted after the 1946 enactment of the APA, the basic purposes of the APA are the following:[11]
- to require agencies to keep the public informed of their organization, procedures and rules;
- to provide for public participation in the rulemaking process, for instance through public commenting;
- to establish uniform standards for the conduct of formal rulemaking and adjudication;
- to define the scope of judicial review.
The APA’s provisions apply to many federal governmental institutions. The APA in 5 U.S.C. 551(1) defines an “agency” as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency,” with the exception of several enumerated authorities, including Congress, federal courts, and governments of territories or possessions of the United States.[12] Courts have also held that the U.S. President is not an agency under the APA. Franklin v. Mass. , 505 U.S. 788 (1992).
The Final Report organized federal administrative action into two parts: adjudication and rulemaking.[10] Agency adjudication was broken down further into two distinct phases of formal and informal adjudication. Formal adjudication involve a trial-like hearing with witness testimony, a written record, and a final decision. Under informal adjudication, agency decisions are made without these formal procedures, instead using “inspections, conferences and negotiations.” Because formal adjudication produces a record of proceedings and a final decision, it may be subject to judicial review. As for rulemaking resulting in agency rules and regulations, the Final Report noted that many agencies provided due process through hearings and investigations, but there was still a need for well-defined uniform standards for agency adjudication and rulemaking procedures.
Standard of judicial review
The APA requires that to set aside agency actions that are not subject to formal trial-like procedures, the court must conclude that the regulation is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.”[13] However, Congress may further limit the scope of judicial review of agency actions by including such language in the organic statute. To set aside formal rulemaking or formal adjudication whose procedures are trial-like,[14] a different standard of review allows courts to question agency actions more strongly. For such more formal actions, agency decisions must be supported by “substantial evidence”[15] after the court reads the “whole record,”[15] which can be thousands of pages long.
Unlike arbitrary and capricious review, substantial evidence review gives the courts leeway to consider whether an agency’s factual and policy determinations were warranted in light of all the information before the agency at the time of decision. Accordingly, arbitrary and capricious review is understood to be more deferential to agencies than substantial evidence review is. Arbitrary and capricious review allows agency decisions to stand as long as an agency can give a reasonable explanation for its decision based on the information that it had at the time. In contrast, the courts tend to look much harder at decisions resulting from trial-like procedures because they resemble actual trial-court procedures, but Article III of the Constitution reserves the judicial powers for actual courts. Accordingly, courts are strict under the substantial evidence standard when agencies acts like courts because being strict gives courts the final say, preventing agencies from using too much judicial power in violation of separation of powers.
The separation of powers doctrine is less of an issue with rulemaking that is not subject to trial-like procedures. Such rulemaking gives agencies more leeway in court because it is similar to the legislative process reserved for Congress. The courts’ main role is then to ensure that agency rules conform to the Constitution and the agency’s statutory powers. Even if a court finds a rule unwise, it will stand as long as it is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”[16]
