Daniel Hemel is an assistant professor at the University of Chicago Law School.

President Donald Trump’s decision to end the Obama-era Deferred Action for Childhood Arrivals program has been criticized, by Democrats and Republicans alike, as “cruel,” “inhumane” and “unconscionable.” It is also quite likely illegal. The decision is being implemented in a way that appears to violate the Administrative Procedure Act, and the courts might well block the Trump administration’s action on those grounds.

The Administrative Procedure Act, sometimes called the “Magna Carta of administrative law,” is a 1946 statute that governs hundreds of federal agencies, including the Department of Homeland Security. It requires that agencies go through a process known as “notice and comment” before issuing, amending or repealing “substantive rules.” As part of that process, the agency must publish proposed actions in the Federal Register and then give the public at least 30 days to submit feedback. When it finalizes its proposal, the agency must respond to issues raised by the public comments and must explain why it settled upon the course of action that it chose. The explanation must show why the agency’s action is reasonable and not “arbitrary” or “capricious.”


In hundreds of cases, the federal courts have had to decide what counts as a “substantive rule” to which the notice-and-comment requirement applies. In a nutshell, a substantive rule is an agency action that alters the rights or interests of parties, changes the background regulatory regime and has a present and binding effect. Sometimes, agencies will take actions that do all of these things but are labeled as “policy statements” rather than “substantive rules.” In those cases, federal courts will block the agency from carrying through on its policy until it goes through the notice-and-comment process.

That’s what’s likely to happen here. On Tuesday, Acting DHS Secretary Elaine Duke sent a memo to other officials in her department regarding the Deferred Action for Childhood Arrivals, or DACA, program. Since its inception in 2012, DACA has allowed more than 800,000 undocumented immigrants who arrived in the United States before their 16th birthday to obtain work permits and certain other benefits. Immigrants eligible for DACA, known as Dreamers, must file an application with DHS and must seek renewal of their status every two years.

That will now change. Duke’s memo says that “[e]ffective immediately,” DHS will “reject all DACA initial requests” filed after Tuesday. It goes on to say that the department will “reject all DACA renewal requests” received after October 5 of this year. The memo has all the signs of a substantive rule. It alters the rights of Dreamers, who now cannot obtain work permits and other privileges associated with deferred action status (such as Social Security benefits). In so doing, it changes the background regulatory regime. And as the memo makes clear, it has a present and binding effect on DHS officials and on hundreds of thousands of Dreamers.

Since it announces a substantive rule, the memo is subject to the notice-and-comment requirement. But DHS has given no indication that it intends to go through the notice-and-comment process here. Instead, Acting Secretary Duke has moved ahead without giving the public 30 days to submit feedback. That’s a violation of the Administrative Procedure Act, and it would give a federal court a basis for blocking the department from carrying through on its new substantive rule.

There is, to be sure, a wrinkle in this argument. The wrinkle is that then- DHS Secretary Janet Napolitano did not go through notice and comment when she announced the DACA policy by memorandum back in 2012. The Trump administration will likely say that if DACA didn’t need to go through notice and comment initially, then DHS shouldn’t have to go through notice and comment now when it rescinds DACA. And if DACA ­did­­ need to go through notice and comment initially, then DACA itself is procedurally invalid and should be set aside on those grounds.

But the Dreamers can come back with two rebuttals. First, the Napolitano memo announcing DACA and the Duke memo rescinding it are not equivalent. The Napolitano memo set forth criteria by which DHS officials should evaluate deferred action applications, but it emphasized that officials should exercise discretion “on an individual basis.” By contrast, the Duke memo is categorical: If a Dreamer applies for deferred action after Tuesday or seeks renewal of deferred action status after October 5, then the request will be rejected. The Napolitano memo was, at least arguably, a policy statement. The Duke memo is more difficult to interpret as anything other than a hard-and-fast rule.

Second, even if the initial DACA memo needed to go through notice and comment, that does not mean the Trump administration can rescind the memo without heeding the Administrative Procedure Act. The U.S. Court of Appeals for the D.C. Circuit has held that the notice-and-comment requirement applies even when an agency seeks to rescind a “defectively promulgated” regulation. Under those circumstances, the proper course is for the agency to solicit public comments as it decides how to address the defect it has identified. The agency does not get a free pass to disregard the Administrative Procedure Act just because a prior administration did so. Two procedural wrongs do not make a right.

None of this is to say that the Trump administration must stick with DACA forever. After going through a proper notice-and-comment process, DHS might decide to amend or repeal the Obama administration’s policy. The department would still have to justify its decision, and the Administrative Procedure Act would allow Dreamers to challenge the adequacy of the department’s explanation. But if the department can explain why its decision is reasonable and not arbitrary or capricious, it should pass judicial muster.

In sum, the Administrative Procedure Act might put the brakes on the Trump administration’s efforts to undo DACA, but it won’t resolve the Dreamers’ predicament permanently. Only Congress can do that. In the short term, though, the Administrative Procedure Act—and the federal courts that enforce it—might provide the Dreamers with much-needed relief.

