President Trump is expected to announce today that his administration will end the Deferred Action for Childhood Arrivals (DACA) program, which allows undocumented immigrants who arrived in the United States before their 16th birthday to obtain work permits and certain other federal benefits. DACA beneficiaries, commonly known as “Dreamers,” are likely to challenge Trump’s decision in court. One argument they can make is that Trump’s decision to end DACA violates the notice-and-comment requirement contained in the Administrative Procedure Act (APA). It’s a strong argument that very well might lead a federal court to block Trump’s DACA decision.

The APA’s notice-and-comment requirement applies to so-called “substantive” (or “legislative”) rules, but not to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” See 5 U.S.C. § 553(b)(A). The requirement attaches both to the initial promulgation of a substantive rule and to the amendment or repeal of a previously promulgated rule. See 5 U.S.C. § 551(5). The Supreme Court has offered little guidance as to what constitutes a substantive rule, but the lower courts have addressed the question in hundreds of cases. Under the law of the D.C. Circuit, where a disproportionate share of these cases are litigated, an agency action is a substantive rule that must go through notice and comment if it (1) “alter[s] the rights or interests of parties,” (2) makes a “substantive change” to the statutory or regulatory regime, and (3) has a “present binding effect.” See Electronic Privacy Information Center v. U.S. Department of Homeland Security, 653 F.3d 1, 5-7 (D.C. Cir. 2011). Under that standard, the Trump administration’s decision to repeal DACA is a substantive rule that must go through notice and comment.

First, revoking deferred action status alters the rights and interests of Dreamers. Deferred action status allows Dreamers to obtain work authorization. See 8 C.F.R. 274a.12(a)(11), (c)(14). And though this is quite a ways away for most Dreamers, deferred action status makes individuals eligible for benefits under the Social Security old age, survivors, and disability insurance program as well as Medicare (provided they meet the other eligibility requirements). See 8 C.F.R. 1.3(a)(4)(vi); 42 C.F.R. 417.422(h); 42 C.F.R. 422.50(a)(7). The Trump administration’s action changes all this.

No doubt Trump’s decision effects a “substantive change” to the existing regulatory regime: for the last five years, Dreamers were eligible for these benefits; once the new policy goes into effect, they will not be. And while Trump’s decision does not have “present binding effect” yet, it certainly will come March. (According to early reports, the Trump administration will delay enforcement of the President’s decision for six months, potentially giving Congress time to act.)

Given all this, it might seem straightforward that the notice-and-comment requirement would apply to the Trump administration’s revocation of deferred action status for the Dreamers. And at the end of the day, I think that the Dreamers should prevail on the notice-and-comment point. But there are three wrinkles.

First, the Supreme Court has held that the APA’s requirements do not apply to the President because the President is not an “agency.” See Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992). And since the decision to end DACA was made by President Trump, his administration might argue that this decision is immune from APA challenge. But this argument is unlikely to sway a court. While the APA doesn’t bind the President, it does bind the Department of Homeland Security. Even if the Dreamers can’t sue Trump for violating the APA, they can sue the Department of Homeland Security and its acting Secretary, Elaine Duke, for carrying out the repeal of a substantive rule without first going through notice and comment.

Second, then-Secretary of Homeland Security Janet Napolitano’s June 2012 memo announcing the DACA policy says at the end that “[t]his memorandum confers no substantive right, immigration status or pathway to citizenship” because “[o]nly the Congress, acting through its legislative authority, can confer these rights.” The Trump administration might argue that if DACA didn’t confer any substantive right, then ending DACA doesn’t take away any substantive right either—and so repealing the policy isn’t a substantive rule requiring notice and comment.

The Dreamers might respond that the Napolitano memo and the Trump administration’s revocation of deferred action status are not equivalent. Technically, the Napolitano memo did not confer a substantive right on anyone—it simply set forth the criteria under which Homeland Security officials would decide whether to grant deferred action status to applicants. The decision to grant such status—and thus to allow an individual to apply for work authorization and potentially for Social Security and Medicare benefits—is made subsequently and, according to the Napolitano memo, on a case-by-case basis. By contrast, the Trump administration’s decision takes away work authorization and potential Social Security and Medicare eligibility from more than 800,000 Dreamers with one fell swoop. So even though the Napolitano memo itself didn’t alter anyone’s rights, the revocation of deferred action status does.

The Dreamers also might argue—in the alternative—that the disclaimer at the end of the Napolitano memo should be disregarded. In Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000), the court considered an EPA document that similarly said it “cannot be relied upon to create any rights enforceable by any party.” The court held that this “boilerplate” language does not exempt an agency action from notice and comment when other factors indicated that the document announced a substantive rule. See also Scenic America, Inc. v. U.S. Department of Transportation, 836 F.3d 42, 56 (D.C. Cir. 2016) (holding that “boilerplate” language does not exempt document from notice-and-comment requirement where document “marks the consummation of [the agency]’s decision-making process” and where “legal consequences will flow”). At least under D.C. Circuit case law, the statement at the end of the Napolitano memo that it “confers no rights” won’t hold much water.

Third, Trump administration lawyers will argue that the DACA policy was invalid ab initio. They will point to the fact that DACA itself didn’t go through notice and comment, and they will argue that the Obama administration lacked statutory authority to promulgate the policy. And they will say that because the initial policy is invalid, it can be revoked without going through the notice-and-comment process.

The problem with this argument is that courts—at least in the D.C. Circuit—have rejected it repeatedly. See, e.g., Consumer Energy Council v. FERC, 673 F.2d 425, 447 n.79 (D.C. Cir. 1982) (“The Commission’s argument that notice and comment requirements do not apply to ‘defectively promulgated regulations’ is untenable because it would permit an agency to circumvent the requirements of § 553 merely by confessing that the regulations were defective in some respect and asserting that modification or repeal without notice and comment was necessary to correct the situation.”); American Forest Resource Council v. Ashe, 946 F. Supp. 2d 1, 26 (D.D.C. 2013) (“[O]rdinarily an agency rule may not be repealed unless certain procedures, including public notice and comment, are followed, and that this is true even where the rule at issue may be defective.”); National Treasury Employees Union v. Cornelius, 617 F. Supp. 365, 371 (D.D.C. 1985) (“There is some superficial appeal to the government’s argument that a provision which was promulgated in error is void ab initio and can be deleted without more ado. This position has however been rejected by the [D.C. Circuit] Court of Appeals . . . .”). And for good reason. Notice and comment allows an agency to determine whether the initial rule was in fact invalid—and if so, what to do about it. Here, there is a plausible argument that the Napolitano memo didn’t have to go through notice and comment because the memo did not itself alter any substantial rights (though revocation of deferred action status in a single stroke would alter such rights). And even if DACA did require notice and comment, the Trump administration could decide—particularly in light of the reliance that DACA has engendered—that the Department of Homeland Security should repromulgate the policy but this time go through the notice-and-comment process. The whole point of the APA’s notice-and-comment requirement is that an agency should open its ears to arguments like these before it acts.

For all these reasons, the Trump administration would be well advised to wait before announcing a final policy on DACA and first to allow the notice-and-comment process to run its course. If at the end of the process the Trump administration still sticks with its decision to repeal DACA, then it must publish a “concise general statement” explaining its decision. See 5 U.S.C. § 553(c). The Dreamers could then come back to court and challenge the administration’s decision on the grounds that it is “arbitrary and capricious.” See 5 U.S.C. § 706(2)(A). The answer to that question would depend on the content of the Trump administration’s final rule and accompanying explanation. Cf. Perez v. Mortgage Bankers Association, 135 S. Ct. 1199, 1209 (2015) (“[T]he APA requires an agency to provide more substantial justification . . . when its prior policy has engendered serious reliance interests that must be taken into account.”).

One final note: The fact that the Fifth Circuit struck down the Obama administration’s Deferred Action for Parents of Americans (DAPA) program, which is similar to DACA in many respects, is not fatal to the Dreamers’ case. The Fifth Circuit’s decision was affirmed by an equally divided Supreme Court in United States v. Texas, and the Supreme Court’s 4-4 decisions generate no nationwide precedent. (The DAPA decision would indeed be binding precedent in the Fifth Circuit, but given the composition of that court, the Dreamers will almost certainly seek to litigate their challenge elsewhere—possibly in the D.C. Circuit, where case law appears to be quite congenial to their claim.) Nor does the fact that four Justices sided with Texas in the DAPA case mean that those same Justices will be hostile to the Dreamers’ arguments here. While we don’t know which arguments swayed those four Justices, it’s quite possible that one or more were moved by Texas’s contention that DAPA should have gone through notice and comment. If the Obama administration’s decision to allow parents of Dreamers to apply for work authorization and Social Security and Medicare benefits was an action that needed to go through notice and comment, then the Trump administration’s decision to deny those benefits to Dreamers would seem to be an action requiring notice and comment too.

Cross-posted on Take Care.