18 Jun Supreme Court Decides DACA Case
Today, in a 5-4 decision, the Supreme Court held that the current administration’s decision to rescind the Deferred Action for Childhood Arrivals program (DACA) was arbitrary and capricious under the Administrative Procedure Act (APA), but 8 Justices agreed that the decision did not constitute and Equal Protection violation. The facts in this case were fairly unusual because everyone agreed that administration could rescind DACA at any time because it does not like the policy. But instead, the federal government has argued throughout that DACA was illegal from the outset and that it must be rescinded. While this case boiled down to a fairly dry procedural issue under administrative law, the practical consequences for hundreds of thousands of people in this country could not have been greater.
By way of background, in 2012, then President Obama adopted DACA, which acted to postpone deportation of undocumented immigrants brought to America as children if they met certain conditions. DACA also allowed them to obtain work permits, social security numbers, pay taxes, and become part of the mainstream economy. In 2017, the Trump administration rescinded DACA, arguing that it was illegal from its inception, and therefore could no longer continue in effect. Specifically, then acting Secretary of Homeland Security, Elaine Duke issued a memorandum rescinding DACA. The decision to rescind DACA was based on the Attorney General’s opinion that DACA was unlawful due to a 2015 Fifth Circuit decision concluding that the Deferred Action for Parents of Americans or DAPA, a similar program to DACA, exceeded DHS’ statutory authority.
Challengers including state and local governments brought suit, arguing that rescinding DACA was arbitrary and capricious under the APA. The federal government argued that the decision to rescind DACA is not reviewable and even if it is, it did not violate the APA. Three lower courts concluded ending the policy was both reviewable and likely unlawful under the APA. One of those district courts gave DHS additional time to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” Then Secretary Nielsen responded to that request with a 5-page memo, which again reiterated the agency’s position that DACA was unlawful and therefore must be rescinded, but also included additional policy reasons for rescinding DACA and included one paragraph on reliance interests.
Writing for the majority, Chief Justice Roberts explained that all the parties agree that DHS has the power to rescind DACA, and that the dispute therefore was “primarily about the procedure the agency followed in doing so.” Ultimately, the Court agreed with the three lower courts that the decision to rescind DACA was both reviewable and that the decision was arbitrary and capricious under the APA.
In terms of reviewability, the majority explains that there is a basic presumption under the APA that an agency’s action is reviewable and here, the DACA program itself is far more than a “passive non-enforcement policy,” and its rescission is therefore subject to judicial review.
Next, the majority rejects the Nielsen Memorandum as a “post hoc rationalization,” issued after litigation commenced, explaining that the agency’s decision must stand or fall on Secretary Duke’s memorandum and the reason she indicated for rescinding DACA: namely that in the administration’s view, it was unlawful. The Court explains that it is a “foundational principle of administrative law that judicial review of agency action is limited to the grounds that the agency invoked when it took the action.” (internal quotations omitted). The majority points out that that contrary to Justice Kavanaugh’s complaint in his dissent that requiring a new decision from DHS without considering the reasons in the Nielsen Memorandum would be “an idle and useless formality,” the requirement instead promotes “agency accountability” and “instills confidence that the reasons given are not simply convenient litigating positions.” (internal quotations omitted).
Turning then to Secretary Duke’s rationale for rescinding DACA based on her belief that it was unlawful; the Court finds that the decision was arbitrary and capricious and violated the APA. On this point, the Court explains that the Attorney General outlined his belief that DACA was unlawful based on the Fifth Circuit’s conclusion that DAPA was unlawful because it conferred benefits on DAPA recipients in contravention of the INA. But, the Court explains, there was more to DAPA and DACA than merely conferring benefits on the recipients, and indeed, the Fifth Circuit was “careful to distinguish that forbearance [from deportation] component [to DAPA] from eligibility for benefits.” However, notwithstanding the fact that the “centerpiece” of DACA is forbearance from deportation, the Attorney General did not address forbearance, and Secretary Duke “treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.” The fact that Secretary Duke entirely failed to mention forbearance or consider that DHS could eliminate the component of DACA which provided eligibility for benefits without eliminating the forbearance from removal rendered the decision arbitrary and capricious.
Finally, the Court explains that the agency committed another reversible error when Secretary Duke failed to address any legitimate reliance interests. Here, the Court notes that the Secretary failed to consider the impact on not only the hundreds of thousands of DACA recipients who have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” on the DACA program, but she also failed to consider their families, including their 200,000 U. S. citizen children, DACA recipients’ schools and employers, and the States and local governments that rely on tax revenue from them (amounting to $1.25 billion per year). The Court explains that it was the “agency’s job” to consider whether its policy concerns outweigh the reliance interests and the “agency failed to do it.”
In concluding, the Court emphasized that it was not making any policy judgments or addressing “the wisdom” of whether DACA should be rescinded. The outcome of today’s decision is that the issue is remanded back to the agency, which as the parties have agreed from the start, does have the power to rescind DACA. The question remains, whether the administration will start over, and offer new reasons for its decision such that it will be accountable for its decision. The reality is that there is likely not time before the November election for the agency to go through proper administrative procedures to rescind DACA again.
Justice Sotomayor was the lone justice that would have found that the allegation of an equal protection violation at the pleadings stage should stay in the case as she believed there was enough evidence that the decision to rescind the program was based on animus toward Mexican immigrants.
Justice Thomas wrote a dissenting opinion, joined by Justices Alito and Gorsuch and Justice Kavanaugh wrote a separate dissent. Justice Thomas’ dissent argues that DACA was illegal from its inception and therefore the agency’s decision to rescind it was not unlawful.
IMLA signed on to an amicus brief in this case drafted by Mike Dundas with the City of Los Angeles, along with 105 cities, counties and other municipalities as well as the National League of Cities, the US Conference of Mayors, and the International City/County Management Association. The amicus brief argued that rescinding DACA would harm local governments because they employ DACA recipients and also benefit from their monetary contributions to the community (viz a vis taxes, job creation, etc.) and because it would undermine public health and safety.
To read the full opinion, click here.