Litigation Risk as a Justification for Agency Action

42 Pages Posted: 22 Sep 2019 Last revised: 6 Apr 2020

See all articles by Timothy G. Duncheon

Timothy G. Duncheon

U.S. Court of Appeals for the Ninth Circuit

Date Written: April 1, 2020

Abstract

To justify its rescission of the Deferred Action on Childhood Arrivals (DACA) program, the Department of Homeland Security (DHS) employed a novel rationale: risk of litigation. DHS argued that DACA was potentially unlawful and might be disruptively enjoined by a court and that the agency could preemptively wind down the program in light of risk that it would be forced to do so in litigation. This Note argues first that agencies can and should consider litigation risk in taking regulatory action—especially given the increasing frequency of nationwide injunctions. But it proposes that an agency invoking litigation risk must examine four elements: forgone benefits prior to a predicted disruptive injunction, probability of the injunction, costs of the injunction, and contrary litigation risk. Examination of these elements here suggests that the DACA rescission could not have been justified solely on the basis of litigation risk and that regulatory changes will rarely be justified on this sole basis. Courts must carefully scrutinize litigation risk rationales, as excessive deference to this rationale may allow agencies to evade responsibility for their policy decisions by passing blame on to hypothetical future judicial action.

Keywords: DACA, rescission, DHS, Deferred Action for Childhood Arrivals, DAPA, litigation, risk, agency, regulation, administrative law, arbitrary, reasoned decisionmaking, hard look, Trump, injunction, cost-benefit analysis, APA, deference

Suggested Citation

Duncheon, Timothy, Litigation Risk as a Justification for Agency Action (April 1, 2020). New York University Law Review, Vol. 95, pp. 193, April 2020, Available at SSRN: https://ssrn.com/abstract=3450880

Timothy Duncheon (Contact Author)

U.S. Court of Appeals for the Ninth Circuit ( email )

United States

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