71 Fla. L. Rev. 1429 (2019)
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The rescission of programs, policies, and practices by an incoming administration often raises legal questions. However, answers are harder to find. That is the case with the whirlwind of rollbacks proposed and
implemented by the Trump administration in areas from transgender
persons in the military to asking a citizenship question on the census and
terminating Deferred Action for Childhood Arrivals (DACA) and
Temporary Protected Status (TPS). This Article provides a lens for assessing the legality of these seemingly precipitous moves. Viewing these abrupt paradigm shifts as threshold rescissions clarifies the legal landscape. Threshold measures govern baseline access to goods and institutions, including military service, political representation, and living and working legally in the United States. Under current case law, changes to many threshold measures would be purely discretionary, subject to very relaxed judicial review or no review at all. This Article suggests that reliance interests in threshold measures warrant a more robust judicial role in assessing the means-ends fit of proposed rescissions, equivalent to intermediate scrutiny in equal protection cases. The prior factfinding and legislative support invested in reforms slated for rescission further justify more probing judicial inquiry. The approach urged here also supplies a welcome normative dimension to scholarly discussions of administrative constitutionalism. Scholars have highlighted the agency
readings to expand individual rights. President Obama’s administration
did this in the context of ending the military’s ban on accession and
retention of transgender service members. The Trump administration
now wishes to partially roll back that inclusive measure. Current
officials’ approach to transgender accession and retention reveals that
administrative constitutionalism is contested terrain: one administration’s
salutary expansion of individual rights strikes a new administration as
defaulting on responsibility, overreaching on power, and interfering with
the rights of other parties. There may be common ground, including
former Defense Secretary James Mattis’s decision to grandfather in
transgender service members who acted in reliance on the Obama
administration’s reform. However, the intermediate scrutiny applied here
would invalidate most other components of the Defense Department’s
transgender rollback, and would require further process and explanation before upholding a citizenship question on the census or the termination
of DACA and TPS. In addition, the approach taken here harmonizes with
the United States Supreme Court’s finding in the census citizenship question
case that the Commerce Department’s reliance on Voting Rights
Act enforcement was pretextual. Analyzing the means-ends fit of
threshold rescissions promote more effective deliberation about abrupt
changes, while allowing a new administration to refine its rationale.