By Hun Lee and Stephen Yale-Loehr*
In the last four years, the former Trump administration issued over 400 major immigration policy changes. Some of those are rules, some of which are in litigation. The Trump administration’s immigration rules continue to be litigated even after President Biden’s election, as exemplified by the recent granting of a preliminary injunction against a massive new asylum rule that would make sweeping changes to the U.S. asylum system. This raises an interesting question: could the Biden administration settle all lawsuits against the Trump-era rules or simply not defend the rules, with the practical effect of restoring rules and procedures to their prior form?
This article proposes four main forms of recourse available to the Biden administration in dealing with Trump-era immigration rules pending litigation. President Biden has already issued a series of executive actions to reverse some of the Trump-era immigration policies, but it will take more than executive actions for the Biden administration to formally repeal final rules issued under the Trump administration. While we use a new asylum final rule as an example, the analysis applies to other similar situations.
Four Forms of Recourse
To repeal the Trump administration’s immigration rules that are in litigation, the Biden administration can:
- publish a new rule or a repeal through notice and comment rulemaking;
- continue delaying the rule’s effective date before publishing a new rule or a repeal;
- refuse to defend the rule and argue that a court’s decision vacating the rule applies nationwide; or
- refuse to defend the rule and have the agency nationally acquiesce to a court’s decision vacating the rule by issuing a memo.
We discuss each of these methods below.
- Publish a new rule or a repeal through notice and comment rulemaking.
The Biden administration’s safest form of recourse is to publish a new rule repealing the prior rule through the formal notice and comment rulemaking procedures set forth in the Administrative Procedure Act (APA). Although this could take several months, courts will not strike down a new rule or a repeal that is published pursuant to the APA’s procedural requirements.
The Biden administration could follow this procedure either through a new proposed rule or through an interim final rule. The Biden administration could also use post-promulgation notice and comment rulemaking, which the Supreme Court upheld in Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania.
- Continue delaying the rule and publish a new rule or a repeal.
The Department of Justice has a general duty to defend federal statutes in court if reasonable, even if ultimately unpersuasive, arguments can be made to support them. This duty does not explicitly extend to agency rules or other executive actions, so the Biden administration could refuse to defend rules in court and request stays or ask the court to remand the rule to the agency for reconsideration, buying time so that the agency can amend or repeal the rule through notice and comment rulemaking.
For example, the Trump administration obtained successive sixty-day stays in litigation challenging the Obama-era EPA’s Clean Power Plan while the EPA considered repealing the rule. The EPA ultimately proposed and finalized a replacement rule that went through notice and comment rulemaking.
In lieu of obtaining successive stays in court, the Biden administration could also invoke APA § 705 to postpone the effective date of a rule, so long as there is pending litigation challenging the rule. This could be another way to postpone a rule, because a § 705 stay authorizes a court to stay agency rules pending judicial review “without any time limit on the duration of the stay.”
Even when rules are postponed and not yet in effect, proposing a new rule or a repeal during the postponement period would generally require notice and comment rulemaking, unless an agency can show that:
- It is merely revising, amending, or repealing a prior rule interpreting its own regulations. For this to work, the agency must show that the rule is an “interpretive rule.” However, as an example, the asylum rule is likely a substantive rule, not an “interpretive rule.”
- The good cause exception applies under APA § 553(b)(3)(B) because going through notice and comment rulemaking would be “impractical, unnecessary, or contrary to the public interest.” Courts construe the good cause exception narrowly.
- Refuse to defend the rule and argue that a court’s decision vacating the rule applies nationwide.
Once the rule’s effective date is postponed, APA § 706 authorizes a court to “set aside” a rule that is held unlawful at the merits stage of a substantive challenge. Although the DHS has argued that vacatur under APA § 706 applies only to a defined geographic area, courts have held that the word “set aside” means to invalidate a rule nationwide. Whether courts can issue such a universal vacatur remains unsettled, but there is a strong argument that once a court vacates a rule under APA § 706, the agency must obey the mandate of the court and set aside the rule.
However, whether a court may issue a nationwide vacatur under APA § 706 remains unsettled. Hence, there is a risk that some courts may refuse to interpret a court’s vacatur of a rule as nationwide invalidation of that rule. For example, a few Supreme Court justices have recently expressed willingness to disallow district courts from issuing nationwide injunctions of rules. Although a nationwide injunction differs from an APA § 706 vacatur, this still reflects a possibility that the Supreme Court may limit the geographic scope of a lower court holding invalidating a rule.
This risk increases if the Biden administration purposely fails to defend the rule, because the text of APA § 706 specifies that the reviewing court “shall review the whole record or those parts of it cited by a party” in deciding relevant questions of law. Therefore, if striking down a rule is a result of one party refusing to defend the rule rather than a result of judicial review on the merits, the argument for universal vacatur may lose persuasiveness.
The risk increases even more if the Biden administration settles a lawsuit substantively challenging a rule, because one could argue that a settlement is not the same as a court finding that a rule is unlawful under APA § 706. In that case, the settlement would not result in a universal vacatur of the rule. Hence, it could be risky for the Biden administration to settle a lawsuit with a party challenging the rule in court. Moreover, courts have generally held that agencies cannot use settlement to alter a rule without following the APA’s usual notice and comment rulemaking procedures. For example, the EPA issued a directive to end the so-called “sue and settle” practices whereby the EPA settled with plaintiffs suing the agency for failing to issue regulations, enabling courts to compel the EPA to issue rules without notice and comment rulemaking. Admittedly, settling in a lawsuit alleging that the agency’s rule is unlawful is different from settling in a lawsuit alleging that the agency failed to issue rules. However, given the history of this skepticism over using litigation to regulate without notice and comment rulemaking, it is possible that the Supreme Court may also refuse to give effect to a repeal of rules by settling lawsuits challenging the rules.
- Refuse to defend the rule and have the agency nationally acquiesce to a court’s decision vacating the rule.
Even if a court’s invalidation of a rule will not have nationwide effect, it is still possible for the Biden administration to acquiesce to nationally applying the district court rulings invalidating a rule, as the USCIS did in 2015 for special immigrant religious workers. This would enable the agency to effectively vacate a rule relying on a district court ruling against the rule without having to worry about the possibility of the Supreme Court refusing to give universal effect to a district court’s ruling invalidating a rule.
Even if the immigration agency acquiesces in this way, however, it would be safer to formally publish the repeal of the rule because the agency’s acquiescence will be in a form of a guidance, which is not as legally binding as a formal repeal.
While the four ways discussed in this article do not constitute an exhaustive list of options available to the Biden administration, they do demonstrate that the Biden administration cannot simply repeal all final rules issued under the Trump administration without complying with the APA’s rules and procedures. Moreover, the success of the Biden administration’s attempts to repeal rules pending litigation will partly depend on how the courts interpret the APA. With that said, dealing with Trump-era rules pending litigation probably gives the new administration more options than dealing with final rules that are already in effect, showing the effect of challenging agency actions in court.
* Hun Lee (firstname.lastname@example.org) is a third-year law student at Cornell Law School. Stephen Yale-Loehr (email@example.com) is co-author of Immigration Law and Procedure, the leading twenty-one-volume immigration law treatise, published by LexisNexis. He is also Professor of Immigration Practice at Cornell Law School and of counsel at Miller Mayer LLP in Ithaca, New York.
Copyright © 2021 Hun Lee and Stephen Yale-Loehr. All rights reserved.