Rescinding Inclusion in the Administrative State: Adjudicating DACA, the Census, and the Military’s Transgender Policy
54 Pages Posted: 5 Mar 2019 Last revised: 12 Nov 2019
Date Written: March 4, 2019
The rescission of programs, policies, and practices by an incoming administration often raises legal questions. However, answers are harder to find. That is the case with the whirlwind of rollbacks proposed and implemented by the Trump administration, in areas from transgender persons in the military to asking a citizenship question on the census and terminating Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS). This Article provides a lens for assessing the legality of these seemingly precipitous moves.
Viewing these abrupt paradigm shifts as threshold rescissions clarifies the legal landscape. Threshold measures govern baseline access to goods and institutions, including military service, political representation, and living and working legally in the United States. Under current case law, changes to many threshold measures would be purely discretionary, subject to very relaxed judicial review or no review at all. This Article suggests that reliance interests in threshold measures warrant a more robust judicial role in assessing the means-ends fit of proposed rescissions, equivalent to intermediate scrutiny in equal protection cases. The prior factfinding and legislative support invested in reforms slated for rescission further justify more probing judicial inquiry.
The approach urged here also supplies a welcome normative dimension to scholarly discussions of administrative constitutionalism. Scholars have highlighted agency readings to expand individual rights. President Obama’s administration did this in the context of ending the military’s ban on accession and retention of transgender service members. The Trump administration now wishes to partially roll back that inclusive measure.
Current officials’ approach to transgender accession and retention reveals that administrative constitutionalism is contested terrain: one administration’s salutary expansion of individual rights strikes a new administration as defaulting on responsibility, overreaching on power, and interfering with the rights of other parties. There may be common ground, including former Defense Secretary Mattis’s decision to grandfather in transgender service members who acted in reliance on the Obama administration’s reform. However, the intermediate scrutiny applied here would invalidate most other components of the Defense Department’s transgender rollback, and would require further process and explanation before upholding a citizenship question on the census or the termination of DACA and TPS. In addition, the approach taken here harmonizes with the Supreme Court's finding in the census citizenship-question case that the Commerce Department's reliance on Voting Rights Act enforcement was pretextual. Analyzing the means-ends fit of threshold rescissions promotes more effective deliberation about abrupt changes, while allowing a new administration to refine its rationale.
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