President Trump is expected to announce today that his administration will end the Deferred Action for Childhood Arrivals (DACA) program, which allows undocumented immigrants who arrived in the United States before their 16th birthday to obtain work permits and certain other federal benefits. DACA beneficiaries, commonly known as “Dreamers,” are likely to challenge Trump’s decision in court. One argument they can make is that Trump’s decision to end DACA violates the notice-and-comment requirement contained in the Administrative Procedure Act (APA). It’s a strong argument that very well might lead a federal court to block Trump’s DACA decision.
The APA’s notice-and-comment requirement applies to so-called “substantive” (or “legislative”) rules, but not to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” See 5 U.S.C. § 553(b)(A). The requirement attaches both to the initial promulgation of a substantive rule and to the amendment or repeal of a previously promulgated rule. See 5 U.S.C. § 551(5). The Supreme Court has offered little guidance as to what constitutes a substantive rule, but the lower courts have addressed the question in hundreds of cases. Under the law of the D.C. Circuit, where a disproportionate share of these cases are litigated, an agency action is a substantive rule that must go through notice and comment if it (1) “alter[s] the rights or interests of parties,” (2) makes a “substantive change” to the statutory or regulatory regime, and (3) has a “present binding effect.” See Electronic Privacy Information Center v. U.S. Department of Homeland Security, 653 F.3d 1, 5-7 (D.C. Cir. 2011). Under that standard, the Trump administration’s decision to repeal DACA is a substantive rule that must go through notice and comment.
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