In its August 24 order in Biden v. Texas, the Supreme Court upheld a Fifth Circuit decision that refused to stay the preliminary injunction that a district court had issued that prohibited the Biden administration from rescinding the “stay in Mexico” policy that the Trump administration had implemented. I dislike the Court’s decision in the context of immigration policy, but it is a step in the right direction in another important context.

In scores of cases over the past six years, the Court has stayed or refused to stay preliminary injunctions that district courts issued with respect to many of the most important decisions the federal government made during that period. Until it issued the order in Biden v. Texas, the Court provided no reasons for its actions in those cases. In a forthcoming article, I document that pattern of behavior, label it “lawless,” and urge the Court to cease the practice.[1] My reasoning is simple. The Court should not take any significant action without stating the reasons for its action. If it cannot state reasons for an action it should not take the action.

In Biden v. Texas, the six-Justice majority that decided not to stay the preliminary injunction stated reasons for their decision. The majority said that the government was unlikely to prevail with its argument that the decision to rescind the “stay in Mexico” policy was not arbitrary and capricious.  The majority then cited the Court’s opinion in the case in which it held that the Trump administration’s decision to rescind the Obama administration’s DACA policy was arbitrary and capricious.

The majority’s statement of reasons for its refusal to stay the preliminary injunction that prohibited the Biden administration from rescinding the Trump administration’s policy was brief, but it communicates enough to allow the public and the Biden administration to understand the concerns that led to the majority’s decision. In the opinion the majority cited, the Court applied the well-known duty to engage in reasoned decision making in the process of holding that Trump’s rescission of Obama’s DACA policy was arbitrary and capricious. Under that doctrine, an agency decision is arbitrary and capricious if the agency did not provide adequate reasons for the action it took.

In the DACA rescission case, the Court added a new element to the duty to engage in reasoned decision making. If the agency changes its policy in a context in which parties acted in reliance on the prior policy, the agency must acknowledge the adverse effects that its change in policy will have on those reliance interest, and it must explain why its change in policy was justified in light of the harm that it caused to those reliance interests.

The Fifth Circuit wrote a lengthy opinion in which it explained why it refused to stay the preliminary injunction. It described in detail what it saw as the inadequacies in the Biden administration’s reasoning in support of its decision to rescind the Trump policy, including the inadequacy of its discussion of the reliance interests created by the Trump policy and the adverse effects that the decision to rescind that policy would have on the reliance interest that were created by the Trump policy. It is fair to infer that the Supreme Court majority agreed with the views expressed by the Fifth Circuit.

The Biden administration now knows what it must do to satisfy the courts. It must address adequately the flaws and gaps in its reasoning that the Fifth Circuit identified in its opinion. If it satisfies its duty to engage in reasoned decision making, it will succeed in its attempt to change the Trump policy. If it cannot satisfy that duty, it will not be able to change the policy.

The Supreme Court has issued many opinions over the past several years in which it has emphasized an agency’s duty to engage in reasoned decision making. That duty is particularly important in the extremely politically polarized environment in which the federal government now functions. The country cannot survive and prosper in a chaotic legal environment in which every important policy is reversed every time the White House changes hands. Judicial imposition of a strict version of the duty to engage in reasoned decision making on agencies provides much-needed stability and rationality to the policy making process.[2] I was pleased to see the Court continue to emphasize an agency’s duty to engage in reasoned decision making in its explanation of its order in Biden v. Texas. I was even more pleased to see the Court itself comply with that duty in the context of a decision to stay or not to stay a preliminary injunction for the first time in six years.

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[1] Richard Pierce, The Supreme Court Should Eliminate Its Lawless Shadow Docket, forthcoming in Admin. L. Rev. in 2022.

[2] See Richard Pierce, Reason Trumps Pretext, Regulatory Review (July 30, 2020).