Document Type
Brief
Publication Date
3-21-2022
Abstract
Amici curiae listed in the Appendix are professors are professors of administrative law. Amici have an interest in the construction and application of the Administrative Procedure Act and in the role that federal courts and agencies play in advancing or hindering reasoned policymaking, democratic accountability, and good governance. Amici express no view about the wisdom of the Migrant Protection Protocols (“MPP”). They write to address why, as a matter of fundamental administrative law doctrine and principle, the Department of Homeland Security’s second action terminating MPP should be accorded legal effect and the injunction requiring the Department to implement that program should be vacated. Amici share a concern that the Fifth Circuit’s refusal to accord legal effect to that action has dangerous implications for the integrity of administrative law and the functioning of administrative agencies.
This case is about the ability of the Executive Branch to improve upon, change, or rescind policies where there is a reasoned basis for doing so—a power vital to democracy and good government. Here, the Fifth Circuit refused to (1) acknowledge the legal effect of an agency action rescinding a policy that superseded a prior action rescinding the policy and (2) allow the District Court to review that superseding agency action. Instead, the Fifth Circuit insisted that the government was bound by its prior action so long as it appealed that action. The Fifth Circuit’s decision disallowing the Executive Branch to change a policy if it fails to satisfy the APA on its first attempt is manifestly wrong and dangerous. It is at odds with fundamental principles of administrative law and multiple decisions of this Court. And it threatens the ability of agencies to advance change responsive to the democratic process and to evolving understandings of science, markets, and other on-the-ground realities.
Recommended Citation
Mendelson, Nina, "Biden v. State of Texas: Brief of Administrative Law Professors as Amici Curiae in Support of Petitioners" (2022). Appellate Briefs. 82.
https://repository.law.umich.edu/briefs/82
Comments
Amicus: Buzbee, Professor William W.; Levin, Professor Ronald M.; Lubbers, Professor Jeffrey S.; Mashaw, Professor Jerry L.; Mendelson, Professor Nina; Michaels, Professor Jon; Shah, Professor Bijal; Shane, Professor Peter; Stack, Professor Kevin M.; Staszewski, Professor Glen; Strauss, Professor Peter L.; Zimmerman, Professor Adam