Immigration Article of the Day: Administrative Reliance by Haiyun Damon-Feng

Administrative Reliance by Haiyun Damon-Feng, Duke Law Journal, Forthcoming

Abstract

Presidential regime change creates significant problems for continuity in the administrative state. Even informal agency action may generate reliance interests recognized under administrative law (what I call “administrative reliance”), which can force a sitting presidential administration to continue its predecessor’s policies, even if those policies are inapposite to the current administration’s own agenda. In highly politicized contexts like immigration law and policy, partisan litigants—particularly States—increasingly invoke administrative reliance as a way to challenge disfavored policy change. This new-found focus on administrative reliance was on display in recent high-profile cases challenging actions to terminate a prior administration’s politically controversial immigration policies, including the Deferred Action for Childhood Arrivals (DACA) program and the Remain in Mexico policy.

Despite its powerful and consequential effects, the doctrine of ad ministrative reliance has been underdeveloped by the courts and underexplored in legal scholarship. The resulting confusion leaves room for partisan gamesmanship on all sides, distorting the effects our elections have on policy and governance. This article fills an important gap in the literature and begins to present a coherent understanding of administrative reliance. It provides the first in-depth account of the doctrine’s development, and it documents how administrative reliance has evolved to become an all-purpose tool used to challenge policy change in the courts. It advocates for courts to adopt a more disciplined approach to reliance interests, in a way that gives due consideration to vested rights while promoting democratic accountability and minimizing the potential for partisan manipulation.

KJ