As the News goes to press, the Court has decided only a few cases. One of those, Immigration and Naturalization Service v. Yang, --- S.Ct. ---- (1996), is an administrative law case. In Yang the INS had denied discretionary waiver of deportation of Yang because of the pattern of fraud and deceit he had used in obtaining admission to the United States. The "cert worthy" issue in the case was the interpretation of the statute authorizing the waiver, which according to the Ninth Circuit required the INS to ignore any fraud or deceit related to the requester's admission to the United States. The unanimous Court, however, interpreted the statutory provision authorizing waivers of deportation as making the waiver decision in the nature of an "act of grace," analogizing to the President's grant of a pardon. This was, the Court said, perfectly clear from the statute. No mention was made of considering the agency's interpretation, which apparently was generally consistent with the Ninth Circuit's.

This new interpretation would have insulated the decision here from review except that the INS had voluntarily (or perhaps through its mistaken statutory interpretation) established the practice of not considering the fraud and deceit used in obtaining entry as a factor in deciding whether to waive deportation. As a result, the Court said, "[t]hough the agency's discretion is unfettered at the outset, if it announces and follows--by rule or by settled course of adjudication--a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as 'arbitrary, capricious, [or] an abuse of discretion' within the meaning of the Administrative Procedure Act."

Here, however, the Court concluded, the INS had not arbitrarily departed from its policy; instead, it had merely interpreted the scope of that policy narrowly to exclude events removed in time and circumstance from respondent's entry. Inasmuch as the policy was the INS's own invention, it was free, "within reason, to define the extent of the entry-fraud exception. The Court found it entirely rational for the INS to limit the exception to aliens who committed one isolated act of fraud in order to obtain entry, as opposed to aliens who committed a pattern of immigration fraud. Accordingly, the Court reversed the Ninth Circuit's decision and affirmed the INS denial of a waiver of deportation.

As an administrative law decision, Yang would seem unexceptional. It is hornbook law that an agency's unexplained departure from a settled policy is arbitrary and capricious. Here there is a slight variation on that theme, because the INS denied that it was departing from its policy; it was merely interpreting that policy narrowly. The distinction does not appear to be much of a difference.

The Court has granted certiorari in another case under the Takings Clause. In Suitum v. Tahoe Regional Planning Agency, 80 F.3d 359 (9th Cir. 1996), the Ninth Circuit held that a property owner's taking clause claim was not yet ripe for judicial consideration, because the agency had granted the owner transferable development rights in exchange for not being able to develop her own property, and those TDRs had not yet been sold. Consequently, it was not yet clear what the owner's actual loss would be.

In State of South Dakota v. U.S. Department of Interior, 69 F.3d 878 (8th Cir. 1995), the Eighth Circuit held that Section 5 of the Indian Reorganizations Act, 25 U.S.C. § 465, was an unconstitutional delegation of legislative authority to the executive branch, apparently the first circuit decision to hold a statute an unconstitutional delegation since the 1930s. The statute authorizes the Secretary of Interior to purchase land for Indians, but it provides little if any guidance as to the purposes such land purchases are to serve. When South Dakota challenged a particular purchase made for a Sioux tribe, the government argued that the decision was unreviewable because it was committed to agency discretion by law -- inasmuch as the statute provided no law to apply. The court, however, found the absence of any legal standard to apply as evidence that Congress had granted unconstrained discretion to the Secretary of Interior, an unconstitutional delegation of legislative authority.

Predictably the government sought certiorari, but thinking better of its position, Interior adopted a new regulation intended to allow substantive judicial review of purchase decisions. The Court then, at the government's suggestion, without briefing or argument, granted certiorari, vacated the decision below, and remanded for further proceedings. The government's theory was that the Eighth Circuit's decision that the delegation was unconstitutional was based in part on the claimed absence of judicial review on the merits, as one means of limiting the government's discretion. Interior's new regulation, allowing for review, therefore changed the legal landscape, perhaps convincing the Eighth Circuit to back off its landmark decision. The Supreme Court's GVR decision drew three dissenters, led by Justice Scalia, who has been writing a number of dissents and concurrences taking issue with the Court's apparently increasing use of GVR to deal with cases.

1. Professor of Law, Lewis & Clark Law School; Editor-in-Chief, Administrative & Regulatory Law News.