Publication Date
3-1-2023
Abstract
The Supreme Court’s recent immigration law Administrative Procedure Act (APA) jurisprudence demonstrates the anti-democratic potential of this judicial review, which has not yet been explored in scholarly literature. Courts’ application of the arbitrary and capricious standard potentially curtails the ability of new presidents to carry out policies via agency action. Scholars have argued that when the courts employ arbitrariness review, their examination of an agency’s reasons for changing a prior Administration’s policy can stymie change and inhibit the will of the people. Further, arbitrariness review can foster volatility. The Supreme Court’s reasoned approach in the Deferred Action for Childhood Arrivals (DACA) case fosters agency accountability. However, the latest chapter in the application of this standard in the Migrant Protection Protocols (MPP) litigation, which concerned discretionary enforcement decisions to make migrants wait for immigration hearings in Mexico, illustrates the potential for arbitrariness review to itself become arbitrary. The arbitrariness analysis in the MPP case suggests that the use of “hard look” review to incentivize immigration agency accountability is vulnerable to abuse. The problem necessitates a deeper examination of if, when, and how hard look review should address an agency’s political reasons for terminating or rescinding a policy. Accordingly, this Article begins with a description of the DACA and MPP cases and then outlines the literature on arbitrariness review’s potential for furthering ossification, accountability, or volatility with respect to the role of politics in agency decision-making. It then advances a reasoned approach that avoids inhibiting new Administrations from implementing policies while fostering agency reason-giving that furthers transparency and reinforces rule of law principles.
First Page
773
Recommended Citation
Carrie Rosenbaum, Arbitrary Arbitrariness Review, 100 Denv. L. Rev. 773 (2023).