Divided Court Rules Trump Administration Can’t End DACA…For Now

In Department of Homeland Security v. Regents of the University of California, 591 U. S. ____ (2020), the U.S. Supreme Court held that the Department of Homeland Security’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious under the Administrative Procedure Act. The 5-4 decision means that the DACA program will remain in place while the Department of Homeland Security reconsiders its options.

Facts of the Case

In 2012, the Department of Homeland Security (DHS) established DACA, which allows certain unauthorized aliens who arrived in the United States as children to apply for a two-year forbearance of removal. Those granted such relief become eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity. Two years later, DHS expanded DACA eligibility and created a related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). If implemented, that program would have made 4.3 million parents of U.S. citizens or lawful permanent residents eligible for the same forbearance from removal, work eligibility, and other benefits as DACA recipients.

Texas, along with 25 other States, obtained a nationwide preliminary injunction barring implementation of both the DACA expansion and DAPA. The Fifth Circuit upheld the injunction, ruling that the program violated the Immigration and Nationality Act (INA), which carefully defines eligibility for benefits. The Supreme Court affirmed, and the litigation proceeded in the District Court.

In June 2017, DHS rescinded the DAPA Memorandum, citing, among other reasons, the ongoing suit by Texas and new policy priorities. That September, the Attorney General advised Acting Secretary of Homeland Security Elaine C. Duke that DACA shared DAPA’s legal flaws and should also be rescinded. The next day, Duke acted on that advice. Taking into consideration the Fifth Circuit and Supreme Court rulings and the Attorney General’s letter, Duke decided to terminate the program.

Several groups of plaintiffs challenged Duke’s decision to rescind DACA, claiming that it was arbitrary and capricious in violation of the APA and infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause. District Courts in California (Department of Homeland Security v. Regents of the University of California, No. 18–587), New York (Wolf v. Vidal, No. 18–589), and the District of Columbia (Trump v. NAACP, No. 18–588) all ruled for the plaintiffs. Each court rejected the Government’s arguments that the claims were unreviewable under the APA and that the INA deprived the courts of jurisdiction. In Regents and Vidal, the District Courts further held that the equal protection claims were adequately alleged, and they entered coextensive nationwide preliminary injunctions based on the conclusion that the plaintiffs were likely to succeed on their APA claims. The District Court deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, finding that the rescission was inadequately explained. The court then stayed its order for 90 days to permit DHS to reissue a memorandum rescinding DACA, this time with a fuller explanation of the conclusion that DACA was unlawful. Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded to the court’s order. She declined to disturb or replace Duke’s rescission decision and instead explained why she thought her predecessor’s decision was sound. In addition to reiterating the illegality conclusion, she offered several new justifications for the rescission. The Government moved for the District Court to reconsider in light of this additional explanation, but the court concluded that the new reasoning failed to elaborate meaningfully on the illegality rationale. After the Ninth Circuit affirmed the lower court’s decision in Regents, the Supreme Court granted certiorari.

Majority Decision

A five-member majority ruled that the DHS’s decision to terminate DACA violated the APA, with Chief Justice John Roberts joining the Court’s liberal block and writing the majority opinion. He wrote:

We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “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. Here the agency failed to consider the conspicuous is- sues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.

The Court first held that DHS’s rescission decision is reviewable under the APA and is within this Court’s jurisdiction. As explained by the Court, the APA’s “basic presumption of judicial review” of agency action can be rebutted by showing that the “agency action is committed to agency discretion by law. In Heckler v. Chaney, 470 U.S. 821 (1985), the Court held that this narrow exception includes an agency’s decision not to institute an enforcement action. “Because the DACA program is more than a non-enforcement policy, its rescission is subject to review under the APA,” the Chief Justice wrote.

The Court went on to conclude that DHS’s decision to rescind DACA was arbitrary and capricious under the APA. The Court first found that the successor Secretary’s later memo could not be used to provide “new post hoc rationalizations” for the rescission. “The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted,” Chief Justice Roberts wrote. “This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.”

The majority went on to find that DHS’s decision was unlawful because the Acting Secretary failed to provide any reasons for terminating DACA. As the Chief Justice explained:

In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” 116 Stat. 2178, 6 U. S. C. §202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.

Chief Justice Roberts, along with Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, went on to reject the DACA recipients’ claim that the decision to end DACA violated the Constitution because it was motivated by an intent to discriminate. “First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program,” the Chief Justice wrote. “Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.”

The Court further concluded that “there is nothing irregular about the history leading up to the September 2017 rescission.” As explained by the Chief Justice: “The DAPA memo did not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a ‘strange about-face.’ It was a natural response to a newly identified problem.”

Dissent

Justice Clarence Thomas authored a dissent, which was joined by Justices Samuel Alito and Neil Gorsuch. Thomas argued that the Trump Administration’s decision to rescind DACA was not motivated by a discriminatory intent and that ending DACA did not violate the law.

According to Justice Thomas,“the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.” He further argued that the majority’s decision “must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.”