Bench Memos

Law & the Courts

Biden Administration Defies Longstanding DOJ Norm on Agency Litigation

In what I’m reliably informed, and have separately confirmed, is a significant departure from longstanding practice, the Biden administration on Tuesday abandoned all of the government’s pending appeals of rulings against the Trump administration’s “public charge” rule governing admissibility of aliens, including the Supreme Court case in which the Court had granted review of an adverse Second Circuit ruling. The Biden administration abandoned all of these appeals even though (or perhaps because) the public-charge rule was in effect nationwide, as a result of the Court’s orders staying adverse rulings from taking effect pending its review.

This is a huge step beyond President Biden’s initial—and entirely normal—action directing the Department of Homeland Services to reconsider the Trump administration’s rule.

The Department of Justice has a strong tradition of not acquiescing in lower-court orders substantively invalidating agency action, even when a new administration is intent on changing policy. Rather, the usual practice is to keep cases in abeyance until the agency promulgates a new rule and only then seek to dispose of the legacy cases while litigating challenges to the new agency action. That is what the Trump administration consistently did, including in highly controversial cases, such as the HHS contraception-mandate litigation and challenges to various Department of Labor rules.

The Biden administration’s gambit causes two serious problems, though the non-Senate-confirmed political appointees behind this gambit presumably see these as features rather than bugs.

First, DHS can now do an end-run around the Administrative Procedure Act process for rescinding the rule. If DHS were to promulgate a new rule rescinding the Trump rule, aggrieved parties—such as states that are harmed by allowing admission of aliens who in the future will be likely to rely on public benefits—could raise the sorts of notice-and-comment and arbitrary-and-capricious claims typically raised when rules are rescinded.  But by simply acquiescing in the adverse court orders, the Biden administration has no need to promulgate a new rule and thus ensures that there is no agency action to challenge.

Second, DHS in a future administration might well be impaired from re-adopting the Trump rule. If a future DHS tries to re-enact the Trump rule, it will be faced with arguments that the rule is precluded by the prior orders, regardless whether those orders were legally correct.

It is particularly egregious that the Biden administration blew up this DOJ norm in the context of the public-charge rule. The government was very likely to prevail in the Supreme Court: the Court had already granted a stay pending certiorari, which requires a likelihood of success on the merits. In other words, this isn’t a matter on which DOJ decided to give up even before new agency action because the litigation was hopeless. Rather, it is a case in which DOJ abandoned likely successful appeals precisely in order to end-run the APA and imperil the ability of future administrations to revive the Trump rule.

To be clear: I am certainly not saying that DOJ has a tradition of appealing every ruling against an agency action. I am saying, rather, that it is extremely rare for DOJ to abandon an appeal that has previously been pursued of a substantive invalidation of a rule, based merely on a new administration’s policy views in the absence of new agency action. I strongly suspect that it is unprecedented for DOJ to do so when the Supreme Court has already granted a stay pending certiorari, thus demonstrating a likelihood of success.

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