The Dreams Live on for Now — An Arbitrary and Capricious Rescission of DACA Cannot Stand.
Deferred action for childhood arrivals – Rescission – Administrative procedure act – Reasoned decision.
In Department of Homeland Security v. Regents of the University of California, the Supreme Court of the United States held that the Trump administration’s decision to terminate the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious. The Court found that the administration violated the reasoned decision-making requirement under the Administrative Procedure Act by 1) failing to distinguish between the protection from deportation and the benefits granted to recipients under DACA; 2) not considering the consequences of the decision on DACA recipients, their families and communities.
A. Facts and Ruling
On June 18, 2020, the Supreme Court of the United States by a 5-4 vote ruled against the Trump administration’s attempt to rescind the Deferred Action for Childhood Arrivals (DACA) program. In a narrow opinion based on administrative law doctrine, Chief Justice John Roberts, joined by the Court’s four more liberal justices, stressed the reliance interests of DACA recipients. They agreed with the challengers that the administration in its initial 2017 rescission had not adequately considered alternatives that would ease the “hardship” posed by the rescission to the roughly 800,000 people in the program. In particular, the Court held that when the Department of Homeland Security (DHS) found in 2017 that DACA was unlawful and thus required rescission, the department failed to address whether one facet of DACA —its “forbearance” in deferring removal of recipients— was in fact legal as an exercise of prosecutorial discretion. This flaw in the department’s decision-making rendered the rescission invalid.
DACA was enacted by the Obama administration in June 2012. Considered to be a signature immigration initiative of President Obama, the program has provided a shield from deportation, for renewable two-year terms, for foreign nationals who came to the United States as children. The program also allowed DACA recipients to work legally in the United States and gave them access to other benefits, such as health insurance, drivers’ licenses and tuition reimbursement. As Chief Justice Roberts observed, Obama’s DHS had found that DACA would allow the United States to benefit from “productive young people” who “know only this country as home.” Polls showed that DACA enjoyed broad support among Americans. It is worth noting that DACA was accompanied by another Obama initiative, Deferred Action for Parents of Americans (DAPA) which extended the same protection and benefits to parents of U.S. citizens and permanent residents. In 2015 and 2016, the then presidential candidate Donald Trump repeatedly described both programs as “illegal executive amnesties” and promised to end them if elected.
1. Attempts to end DACA faced with a cascade of legal challenges
The Trump administration rolled out its rationale for ending DACA in two phases. On September 5, 2017, the then Attorney General Jeff Sessions opined in a letter that DACA was unlawful and unconstitutional as a unilateral exercise of executive power inconsistent with the Immigration and Naturalization Act (INA)’s careful demarcation of foreign nationals entitled to enter or remain in the United States. Following Mr. Sessions’ letter, the then Acting Secretary of DHS issued a memorandum on September 5 reiterating the Attorney General’s opinion and terminating DACA. Shortly after, lawsuits were filed in the federal district courts in California, New York, Maryland, and the district of Columbia challenging the termination. The challengers in these lawsuits included states, cities, universities, DACA recipients, civil rights groups and even Microsoft corporation. In substance, the challengers argued that the decision to rescind DACA violated the rights of DACA recipients and the Administrative Procedure Act (APA), the federal law governing administrative agencies.
In January 2018, a U.S. district court in California issued the first order enjoining the termination and forcing DHS to keep the program open to those who had previously been granted DACA status. Other district courts would side with the challengers. Following these judicial decisions that found the justifications outlined in the 2017 memorandum to be inadequate, the new Acting Secretary of DHS Kirsten Nielsen would issue more expansion reasons for the rescission in a June 22, 2018 memo. While reiterating that DACA was simply unlawful, the Secretary asserted that the legality of DACA triggered “serious doubts” which, in themselves, were a reasonable basis for ending the program. The Secretary also outlined policy reasons for rescinding the program, such as a preference for case-by-case decision-making approach over DACA’s broad eligibility criteria for childhood arrivals. Faced with all these legal challenges and court defeats, the Trump administration asked the Supreme Court to weigh in on cases that were still making their way through lower appeal courts.
2. The Supreme Court finally took up all DACA cases
On June 28, 2019, the justices finally announced that they would take up all three appeals together. They agreed to tackle two questions: whether the government’s decision to end DACA was reviewable by the courts and, if so, whether the decision to end DACA was legal.
In its brief on the merits at the Supreme Court, the government maintained that its decision to end DACA was not reviewable. The lower courts, the government explained, had ruled that the decision to end DACA should be set aside because it was “arbitrary and capricious” —that is, not the product of reasoned decision-making— under the APA. But, the government continued, a court can’t review an agency’s decision under the “arbitrary and capricious” standard if the agency’s action is one it has the discretion to take. The decision to wind down a policy of not enforcing immigration laws (DACA) is, the government contended, precisely the kind of “quintessential action” that is “committed to an agency’s absolute discretion.” For the government, the reasons for an agency’s action don’t matter if the courts don’t have the power to review the action in the first place.
The challengers rejected the government’s contention that its decision to end DACA was the kind of agency action that has been traditionally immune from review in the courts, pointing to a general assumption that courts will be able to review actions by a federal agency involving immigration. For the challengers, the decision to end DACA was reviewable by courts because the government’s rationale for ending the program was that it violated the law.
On the question pertaining to the legality of its decision to end DACA, the government argued that it had several reasonable reasons for terminating the program. The government reiterated its belief that the program was illegal and keeping it in place would be “sanctioning an ongoing violation of federal immigration law by nearly 700,00 aliens.” The government also pointed to the announcement made by Texas and several other states to challenge the legality of DACA in court. Finally, the government argued that DACA, according to the then President Obama, was intended to be a “temporary stopgap measure.” By terminating the program, the government argued, it was returning to the pre-DACA system of reviewing requests for protection from deportation on a case-by-case basis. “One can agree or disagree with that judgment,” the government suggested, “but it is not remotely specious.”
As for the challengers, they did not question that the Trump administration had the legal authority to end DACA. However, they argued that, under the APA, an agency has to provide a “genuine analysis and lucid explanation of the relevant policy considerations before reversing a long-standing policy and subjecting 700,000 individuals to deportation to unfamiliar nations where they may not even speak the language.” They contended that government’s decision was “almost entirely unexplained” and therefore did not pass the basic standards set forth in APA.
On the two questions before it, the majority of the Supreme Court agreed with the challengers and decided to send the issue back for DHS to take another look and provide a better explanation if it wanted to rescind the program.
The opinion authored by Chief Justice Roberts was narrowly focused on procedural grounds. The question before the Supreme Court was not whether the Trump administration had the power to end DACA, because everyone agreed it had. Instead, the question was whether the administration went about it the right way. The administration’s compliance with the standards of decision-making set forth in the APA was at the heart of the Court’s opinion, not any provisions from the INA. As stated by Roberts, “We do not decide whether DACA or its rescission are sound policies. The wisdom of those questions is none of our concern. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” But, before the Court could reach this central question, it had to dispose of a threshold question: whether courts had the power to review DACA in the first place.
1. DACA rescission is reviewable by the courts
The majority disposed of the reviewability question rather quickly. The government had argued that the courts could not review DACA’s rescission since DACA is a policy of non-enforcement —that is, it just announces that DHS will refrain from taking action against dreamers. The government invoked a legal doctrine established by the Supreme Court in 1985 in Heckler v. Chaney and which insulates agency inaction from court review. The Court squarely rejected the government’s claim that DHS’s DACA rescission was not reviewable. As a general rule, Roberts explained, courts will be able to review an agency’s action, unless (among other things) the action falls within the agency’s discretion. But courts have read that exception “quite narrowly,” Roberts noted. For the majority, the government’s efforts to compare one example of an agency action that is not subject to judicial review —a decision not to institute enforcement proceedings— to the termination of DACA fell short because DACA is not a “passive non-enforcement policy” but instead a “program for conferring affirmative immigration relief” through individual adjudications. Individuals apply for deferred action, and DHS decides whether to grant or deny their applications. By establishing this program, DHS took agency action, and that action is reviewable. The Court concluded, rightly so, that Heckler v. Chaney did not bar judicial review of DHS’s DACA policy or its attempt to rescind that policy.
Having disposed of this threshold question, the Court then turned to the central question as to whether the Trump administration had followed proper procedures in terminating DACA.
2. DACA rescission is arbitrary and capricious
As previously indicated, the Trump administration’s rationale to rescind DACA was rolled out in two phases. In September 2017, DHS rescinded DACA through a short memo issued by then Acting Secretary Duke Elaine Duke. In June 2018, the new Acting DHS Secretary Kirsten Nielsen issued a second memo after the D.C. district court vacated the 2017 rescission memo and offered DHS the chance to issue a new memo rescinding DACA with a fuller explanation for the rescission. In light of these two memos offering various explanations for DACA rescission, the first step in the Court’s inquiry was to determine which memo to consider as the administration’s rationale for terminating DACA.
The majority declined to consider the 2018 memo, reasoning that it is a “foundational principle of administrative law” that courts should only look at the grounds on which an agency relied when it took the action being challenged. The Chief Justice noted that Acting Secretary Nielsen could have issued a new decision terminating DACA but decided not to. Instead, she opted to rely on the 2017 memo, which she supplemented with her own. However, the Chief Justice noted, “Nielsen’s reasoning bears little relationship to that of her predecessor.” Roberts concluded that that “the basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.” In focusing on DHS’ initial 2017 reason for rescinding DACA and disregarding the more detailed 2018 memo, the majority relied on the Chenery doctrine first outlined by the Supreme Court in 1943’s SEC v. Chenery Corp. This core tenet of administrative law stipulates that when it comes to justifications, an agency gets only one bite at the apple. The agency should state its reasons fully the first time around, rather than alter its positions to fit subsequent lawsuits. Allowing the agency to reply on after-the-fact, “post hoc” rationalizations would fail to give stakeholders adequate notice of the agency’s reasoning and frustrate courts called upon to review agency action. The rule against post hoc rationalization, observed the Court, serves important values of promoting agency accountability and “instill[ing] confidence that the reasons given are not simply convenient litigation positions.”
The second step in the Court’s inquiry was to consider whether, on the basis of the original memo by Acting Secretary Duke, DACA termination was arbitrary and capricious under the APA. Under the APA and Supreme Court precedent, courts may conclude that agency action is “arbitrary and capricious” if an agency fails to examine relevant data and factors, acts counter to the evidence before it, or explains its action with reasoning so implausible that the action cannot be considered a product of agency expertise. The majority concluded that the 2017 memo terminating DACA was arbitrary and capricious on two grounds.
First, observed the Court, DHS concluded that DACA was illegal and should be terminated because it made DACA recipients eligible for benefits such as Social Security, Medicare and the ability to work legally in the United States. These benefits, noted the Court, only represent one aspect of DACA policy. The other aspect is its forbearance of removal, which lies “at the heart of DACA.” According to the majority, the decision to terminate DACA failed to address this second important aspect altogether. Even if the benefits provided by DACA were illegal, the majority noted, DHS could still have retained the protection from deportation, but instead it simply decided, without any explanation, to terminate that protection as well. By so doing, DACA rescission was arbitrary and capricious.
Second, the Court held that DHS also failed to consider the “serious reliance interests” of DACA recipients, their families, and their communities. Although DHS was not required to make its ultimate decision based solely on these reliance interests, the agency was “required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.” Acting Secretary Duke failed to address whether DACA recipients had counted on the existence of the program in arranging their lives, if she had, the majority suggested, she “might have considered more accommodating termination dates” for DACA recipients who were in the middle of —for example— academic programs, military service or medical treatment.
3. DACA rescission is not motivated by racial animus
Finally, Chief Justice Roberts addressed the challengers’ claim that the Trump administration’s decision to terminate DACA violated the right to equal protection under the Fifth Amendment of the Constitution because it was motivated by an intent to discriminate. The Court concluded that the challengers presented insufficient allegations to “raise a plausible inference” that racial animus was a motivating factor in DHS’s decision. Notably, the Court determined that various anti-Latino statements made by President Trump cannot give rise to a plausible inference of discriminatory intent because his statements were unrelated to DHS’ decision to rescind DACA.
Justice Sonia Sotomayor joined most of the Chief Justice’s opinion but dissented from his conclusion on the equal protection claim arguing that this claim should be remanded for further development. Justice Sotomayor criticized how the Chief Justice’s opinion “minimizes the disproportionate impact of the rescission decision on Latinos.” She argued that President Trump’s statements describing Mexican immigrants as “criminals, drug dealers, [and] rapists” are not so removed from DHS’ decision that they cannot be considered when deciding whether racial animus motivated the DACA rescission. For Justice Sotomayor, taken together President Trump’s statements “help to create the strong perception” that the decision to end DACA was motivated by an intent to discriminate. This view was not shared by the three other liberal Justices who joined Chief Justice Roberts’ opinion.
In closing, Chief Justice Roberts reiterated that the Court was not deciding “whether DACA or its rescission are sound policies.” Instead, he stressed, the Court addressed “only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action” which, in the majority’s view, it failed to so. The solution, Roberts continued, was for the Court to send the issue back to DHS for it to reconsider and, if it wants to rescind the program again, for it to offer a better explanation.
Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, wrote a stinging dissent asserting that DACA was illegal from the start. The other conservative Justice, Brett Kavanaugh, wrote a separate dissent acknowledging the plight of DACA recipients while arguing that the majority had applied the Chenery doctrine too broadly and should have considered the 2018 memo by Acting Secretary Nielsen in deciding whether DACA rescission had complied with the APA.
This was a narrow opinion based on technical and procedural questions. The justices did not address whether DACA or its recession are sound policies. They did not address whether DACA itself is legal. The legal questions before the Court did not center on the INA. They were limited to the cardinal requirement, under the APA, that federal agencies undertake reasoned decision-making. Such a requirement is vital because executive agencies do not exist in a vacuum. Rather, they exercise power that Congress has delegated. An agency can responsibly exercise that delegated power only through careful reflection and the comprehensive provision of reasons. When the agency’s stated reasons do not fit the stakes of the decision that it has made, the agency has failed in its obligation for reasoned decision-making.
Even though the Court’s holding was narrow and its legal significance rather limited, its practical implications however were enormous for the nearly 800,000 DACA recipients, children who came to the United States to no fault of their own and who don’t know any other place to call home. They can continue, at least for now, to live and work in the United States without fear of deportation. Their dreams live on. The Court’s ruling has given DACA recipients some reprieve but, ultimately, as Justice Kavanaugh argued in its dissent, the Court’s decision “cannot eliminate the broader uncertainty over the status of the DACA recipients.” If Congress could pass legislation, he suggested, it could “produce a sturdy and enduring solution to this issue, one way or the other.” In this sense, the Court’s opinion highlighted the significance of the 2020 elections. A victory for the democrats would result in DACA’s preservation, consistent with their pledge to maintain the program. A victory for the republicans, by contrast, would allow an embolden Trump administration more time to attempt to rescind the program —hopefully correctly this time.
C. Suggested Reading
Case law :
M. Downey and A. Garnick, “Explaining the Supreme Court’s DACA Decision”, The Regulatory Review, July 7, 2020.
A. Howe, “Opinion analysis: Court rejects Trump administration’s effort to end DACA”, SCOTUSblog, June 18, 2020.
K. Johnson, “Lessons about the future of immigration law from the rise and fall of DACA”, U.C. Davis Law Review, 343 (2018-2019).
P. Margulies, “The Supreme Court Rules that Trump’s DACA Rescission Doesn’t Pass Muster”, Lawfare, June 18, 2020.
R. Warren and D. Kerwin, “Beyond DAPA and DACA: Revisiting legislature reform in light of long-term trends unauthorized immigration to the United States”, Journal of Migration and Human Security, Vol. 3, Issue 1, 2015.
To cite this contribution : J. Mangala, “The Dreams Live on for Now — An Arbitrary and Capricious Rescission of DACA Cannot Stand”, Cahiers de l’EDEM, October 2020.
 One poll conducted in January 2018 indicated that 87 percent of those surveyed believed that DACA recipients should be allowed to stay in the country as long as they were working or going to school.
 Unlike DACA, DAPA was never enacted due to an early legal challenge in which the U.S. Court of Appeals for the Fifth Circuit held that the program was too massive to fit within Congress’s scheme under the Immigration and Naturalization Act (INA). The Supreme Court, shortly after Justice Antonin Scalia’s passing in 2016, affirmed the Fifth Circuit in a 4-4 tie without issuing any opinion, thus precluding DAPA from taking effect.