Yesterday's Supreme Court arguments in what is known as the "DACA case" would normally not be something we'd cover on this blog. Yeah, the issue of whether the executive branch has the power to unwind (or, as the cert petition puts it to "wind down") a prior administration's executive actions is interesting and all that, but it's just not in our usual AO (Area of Operations).
But after reviewing the transcript, we think that those of you who are interested in regulatory takings might find it worth skimming. The reason is that the plaintiffs' case is for the most part built on their reliance on the DACA program and nonenforcement of immigration statutes. We conformed our behavior to the existing rules in reliance on those rules remaining in place, and therefore a subsequent executive administration can't revoke those rules, is how we see the argument. For example, Justice Gorsuch framed the issue as "the reliance interests that have grown up around DACA." Tr. at 19. And uberlawyer Ted Olson argued:
MR. OLSON: --there -- as I said, it's a combination of factors which include the government inviting people to rely upon and make decisions based upon that policy, the provision of benefits connected with it, individuals making choices, and --a nd then - -and the Heckler case -
Tr. at 53. Dreamers are "invited to participate into a program, to reveal the business that they're in, to come forward, to take advantage -- of benefits..." Tr. at 54.
Takings lawyers are familiar with the concept of reliance. Especially reliance on government regulation, or even government inaction. As the Court noted in Kaiser Aetna v. United States, 444 U.S. 164 (1979), government action doesn't result in "estoppel," but might create a property interest:While the consent of individual officials representing the United States cannot "estop" the United States, see Montana v. Kennedy, 366 U.S. 308, 314-315 (1961); INS v. Hibi, 414 U.S. 5 (1973), it can lead to the fruition of a number of expectancies embodied in the concept of "property" -- expectancies that, if sufficiently important, the Government must condemn and pay for before it takes over the management of the landowner's property. In this case, we hold that the "right to exclude," so universally held to be a fundamental element of the property right, falls within this category of interests that the Government cannot take without compensation.
444 U.S. at 177-80.
But we also know that the courts conclude that this is a very limited set of circumstances, and that in most cases, reliance on government regulations (even when you are invited to participate into a program, such as taxicab medallions) do not give you the ability to compel the government to maintain that regulation or to enforce those regulations against others. In Penn Central's terms, you have no reasonable investment-backed expectations of being subject to, or free from, such regulations. (And yes, we know that Penn Central spoke only of "distinct" and not "reasonable" investment-backed expectations). Some courts see it as as an issue of defining the property interest. In short, most courts have concluded that someone who claims a property or reliance interest in the continuation of a government regulation -- even one adopted by a legislature and not the executive -- are, in the Chief Justice's words, chumps.
If the Court goes with the plaintiffs in the DACA case (and we defer to our betters on whether that might come to pass) we at least hope that the same rationale supporting reliance interests that motivate such a ruling would apply equally to property owners who, in our view, have at least as great of an interest at stake in takings cases.
Transcript, Dep't of Homeland Sec. v. Regents of the Univ. of Cal., No. 18-587 (U.S. Nov. 12, 2019)
