SCOTUS Has Opportunity to End Biden’s Sue-to-Settle Regulatory Scheme

Justices appear skeptical of Biden’s side-door process to bypass Administrative Procedure Act requirements

By Robert Law on February 24, 2022

Any administration has the right to change policy direction from its predecessor, a concept often expressed through the phrase “elections have consequences”. The question isn’t can a new administration reverse policies it disagrees with, but rather what steps are required by law to implement the change.

The process for amending regulations is clearly spelled out in the Administrative Procedure Act (APA). Most critically, before a regulatory change can occur the relevant executive branch department must publish the proposed change in the Federal Register, explaining the justification for the revision and giving the public at least 30 days to provide feedback. Once the comment period has concluded, the agency must meaningfully address all unique issues raised by the public in the final rule. Once the final rule is published in the Federal Register, it does not go into effect for another 60 days (or 30 days for non “economically significant” rules) in order to give the regulated public time to prepare for the new policy.

The rulemaking process is lengthy but, if successfully completed, should give an administration’s regulation some staying power, because a future administration would be required to go through the same time-consuming process to rescind or revise the regulation. By comparison, sub-regulatory policies typically are not as impactful and can quickly be changed by a new administration issuing a memorandum that supersedes the previous policy memo.

Yet the Biden administration has created a side-door mechanism that has allowed it to more quickly terminate Trump administration immigration regulations. Throughout the Trump administration, opponents engaged in “lawfare” by suing in a sympathetic (read: progressive) jurisdiction on nearly every policy it disagreed with. The point of these meritless lawsuits was to get an activist federal district court judge to issue a nationwide injunction blocking the policy while it slowly worked its way up to the Supreme Court.

Some of these legal challenges were still pending when Joe Biden was inaugurated, creating an opening for advocates of unlimited immigration to dispense with Trump-era rules without abiding by APA requirements. In one example, the Department of Homeland Security (DHS) published a merit-based H-1B selection final rule on January 8, 2021, or 12 days before the inauguration, with an effective date of March 9, 2021. The Biden administration quickly published a document delaying the effective date under the guise that it needed extra time to properly operationalize the regulation. Fast forward to December 2021 and the Biden administration abruptly stopped defending the rule against a challenge brought by the U.S. Chamber of Commerce.

The Biden administration similarly used this sue-to-settle approach with the Trump administration’s public charge regulation. Unlike the H-1B rule, the public charge rule went into effect during the Trump administration despite multiple courts trying to prevent its application. But once a Chicago-based district judge ruled “on the merits” against the public charge rule the Biden administration promptly removed it from the regulations.

The State of Arizona and several other states sued, trying to take the place of the federal government to defend the Trump regulation. Yesterday, the Supreme Court heard arguments on whether a state should have the ability to defend a policy that the current administration has abandoned. It is unclear how the justices will eventually rule, but my colleague Jason Richwine and media reports suggest that at least some of the justices are skeptical of this side-door strategy the Biden administration has utilized.

It is clear that the Trump administration’s public charge rule’s days are numbered since the Biden administration recently published a notice of proposed rulemaking that would formalize the pre-Trump Pearson Memo definition in regulation. While I believe that is a poor policy decision because it completely exempts “non-cash” welfare like food stamps and housing vouchers from consideration, it is the current administration’s prerogative to go a different direction.

My colleague Andrew Arthur has already put a marker on a different case the high court is considering as the most significant immigration case ever, but speaking as an appointee responsible for overseeing the development of many immigration regulations during the Trump administration, the Supreme Court has a critically important opportunity to shut the side-door and force the Biden administration to comply with the APA.