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Sunday, September 20, 2020

The executive must explain

US Supreme Court recently held Trump administration’s move to deny benefits to child immigrants as unlawful -- upholding the principle that executive can't exercise powers arbitrarily or capriciously.

Written by Upendra Baxi | New Delhi | Updated: July 18, 2020 10:19:08 am
Supreme Court, human rights, administrative law and judiciary, Indian express opinion, Indian express news The close relation between administrative law, constitutional law, and environmental law in India has now matured into a wider judicial doctrine insisting as a backbone of democratic public accountability that all power is held as a public trust. (Illustration by C R Sasikumar)

Whenever I read the German thinker Rainer Frost who urges that underlying all human rights is the right to justification of any state action, I am reminded of the great achievement of the Indian Supreme Court whose jurisprudence of administrative law has always been to extoll “the duty to give reasons”. The close relation between administrative law, constitutional law, and environmental law in India has now matured into a wider judicial doctrine insisting as a backbone of democratic public accountability that all power is held as a public trust, and administrative action must always be accompanied by the reasoned elaboration of executive action.

The elected representatives have their own theory of constitutional good, which can only be attained by legislative and executive supremacy. The courts have given a wider margin of appreciation to these claims but at the same time insisted on the fairness discipline which curbs the “fly-now-pay-later” approach of leading political and bureaucratic actors. The continuing debate on the role and limits of judicial power is a dynamic aspect of Indian constitutionalism and the citizens stand to gain when the human right to justification triumphs as promoting the public good.

The Supreme Court of the United States (SCOTUS) has arrived at the same result in its own bicentennial constitutionalism, especially through the famous 14th Amendment due process jurisprudence and by strictly enforcing the fairness discipline mandated by the Administrative Procedures Act, 1946 (APA). That Act summons “reasoned elaboration” and non-arbitrary or capricious standards for public action. Courts have held that it enacts a “basic presumption of judicial review [for] one suffering legal wrong because of agency action”.

Most recently (on June 18, 2020), the SCOTUS held that this standard had been violated in the Department of Homeland Security (DHS) decision to scrap the executive programme named DACA (Deferred Action for Childhood Arrivals), which provided all childhood arrivals in 2007 — “who have continuously resided since 2007; are current students, have completed high school, or are honourably discharged veterans; have not been convicted of any serious crimes; and do not threaten national security or public safety” — with the twin blessings of benefits (access, for example, to welfare and Medicare payments) and a duty of “forbearance” (suspending removal enforcement action). DACA recipients were stated to have placed reliance on the programme and “enrolled in degree programmes, embarked on careers, started businesses, purchased homes, and even married and had children” and it was estimated that their exclusion from “the lawful labour force may… result in the loss of $215 billion … and an associated $60 billion in federal tax revenue over the next ten years”.

The SCOTUS took account of certain political facts: The Congress had been paralysed for two decades on the status of “illegal’’ migrants, the DACA was promulgated by the president, Barack Obama, and was sought to be rescinded by his successor president, Donald Trump, and the additional fact that the presidential election campaign bugles had already sounded did not merit judicial notice.

The SCOTUS clarified that it had to decide only the narrow question of whether the APA standard was violated here. The Court was unanimous in holding that the executive has the power to rescind an administrative programme, the legislature had the power to make, unmake, or remake any law, and the agency discretion was a critical resource for governance. The SCOTUS was only seized with the issue whether the agency had exercised its powers arbitrarily or capriciously, without following any reasoned elaboration. And it held by a majority that the DACA recession order violated this standard.

The majority led by Chief Justice John Roberts was subjected to a withering criticism by Justices Sonia Sotomayor, Thomas (with Samuel Alioto, and Neil Gorsuch), and Justice Brett Kavanaugh — the latter in more deferential tones. The most welcome SCOTUS tradition of strident and robust judicial dissent, which our apex court can well emulate, comes again to the fore here.

Finding it all “mystifying” and “perverse”, Justice Clarence Thomas said that while the majority “acts as though it is engaging in the routine application of administrative law” it is doing “anything but” that. The majority, instead of leaving the matter in the political realm, “has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own”. It “has given the green light for future political battles to be fought in this Court rather than where they rightfully belong — the political branches”. Justice Thomas indicted such judicial “timidity” which “forsakes the… duty to apply the law according to neutral principles”, and warned that the “ripple effects” of this “error will be felt throughout our system of self-government”.

I will not here explore the logic of the dissent but merely say that this strong criticism is equally strongly repudiated by Chief Justice Roberts who holds that the DHS erred in multiple ways. First, it erred in ignoring the “foundational principle of administrative law” that judicial review of agency action is limited to “the grounds that the agency invoked when it took the action”. Second, the recission decision did not at all address the “forbearance” obligations, which lay at the very “heart” of DACA. Third, it failed to address the “legitimate… reliance interests” of the persons involved; had these been considered “more accommodating termination dates” may have been found or suggested “for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen”. These faultlines in the recission decision were arbitrary and capricious. (Following the lead of Justice Rohinton Nariman, the Indian courts would now call this a “manifestly arbitrary” decision).

Despite President Trump’s vocal determination to find ways out of it, the decision now maps the future itinerary of the recission of DACA. But the message is loud and clear: Judicial power and process is ultimately neither the hagiography nor biography of power, but rather its biopsy and in extreme situations its radical therapy, though it may never deliver by itself a complete cure for carcinogenic usurpations of power.

The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi.

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