Dream On, DACA! DHS v. University of California

Yesterday, Chief Justice Roberts concluded that the Trump administration violated the Administrative Procedure Act when it attempted to rescind Deferred Action for Childhood Arrivals, or DACA. Roberts’ opinion is momentous—both in what it says and in what it does not say. For example, Roberts is coy on whether DACA itself is legal. He concludes only that the manner in which the Trump administration sought to cancel it did not follow the proper administrative procedure. On the other hand, three Justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch—were not shy in saying the opposite, bluntly declaring that DACA is illegal and that there’s no other justification required to terminate it. For now, Roberts’ opinion keeps DACA on the books and its recipients in the country. Their dream remains alive, albeit temporarily. Read more for an in-depth analysis of the Court’s decision in Department of Homeland Security v. Regents of the University of California.


Introduction

“DACA” stands for “Deferred Action for Childhood Arrivals.” DACA is a product of the Obama administration. In 2012, the Department of Homeland Security (DHS) issued a memorandum identifying “certain young people who were brought to this country as children.” These immigrants meet certain criteria—e.g., are below the age of 31, have resided continuously in the U.S. since 2007, are currently in or have graduated from school or have been honorably discharged from the armed services, have not been convicted of any serious crimes, etc.—and are therefore exempt from the normal deportation (or “removal”) process under federal immigration law. DACA recipients can renew their “deferred status” and stave off removal every two years through an application process. While on deferred status, recipients can hold jobs and receive federal benefits, like Social Security and Medicare. To date, some 700,000 DACA recipients live and work in the United States.

In 2014, the Obama administration sought to expand DACA. The new program—called “DAPA” or Deferred Action for Parents of Americans and Lawful Permanent Residents—would have loosened the eligibility requirements by nixing the age limit, reducing the continuous residency period from five years to three, and prolonging the renewal-application period to every three years.

But DACA’s expansion did not meet with success. In 2015, Texas led a group of twenty-six states into federal court, suing to block DACA’s expansion. After a few rounds of litigation, the Fifth Circuit Court of Appeals in New Orleans, LA sided with the states. It entered a preliminary injunction against DACA’s expansion, meaning enforcement of DACA’s expansion would be paused while litigation on the merits of the policy played out. The Obama administration appealed to the Supreme Court seeking to block the injunction, but the Court split 4:4 and, by procedural rule, affirmed (United States v. Texas (2016)). Litigation on the merits of DACA’s expansion continued for the next few years.

Then the Trump administration took office. The Trump DHS faced a choice: It could either take the reins from the Obama DHS and continue litigation to expand DACA, or it could drop the policy’s defense and let it die. Not unpredictably, the Trump DHS opted for the latter; in June 2017, DHS issued a memo canceling DACA’s expansion.

But DHS didn’t stop there. A few months later, in September 2017, Acting DHS Secretary Elaine C. Duke issued another memo, this time seeking to terminate the entire DACA program too. Explaining the policy change, Duke cited the Fifth Circuit’s and Supreme Court’s rulings on DAPA, as well as a recent memo from Attorney General Jeff Sessions in which he argued that DACA suffered from the “same legal defects” as DAPA and would likely meet the same judicial fate. Duke’s memo laid out the intended procedure for winding down DACA: DHS would not process any more DACA applications, and current Dreamers’ “deferred status” would expire normally (within two years) and would not be subject to renewal.

Cue the flood of lawsuits. Several groups, ranging from individual recipients to the NAACP to universities to entire States, challenged DACA’s rescission. These lawsuits started percolating through the federal courts. In a D.C. district court, DHS Secretary Kirstjen M. Nielsen (who replaced Duke) entered a memo on the record justifying DHS’ decision on three grounds: first, she agreed with Attorney General Sessions that DACA was illegally implemented; second, she asserted that DHS did not want to enforce “legally questionable” policies; and third, she argued that there were several policy reasons to support DACA’s termination.

The D.C. district court was not taken by Nielsen’s memo; it ruled against the administration. Other district courts followed suit, and a San Francisco district court entered a nationwide injunction against DACA’s repeal. The Trump administration appealed, both to federal appeals courts and directly to the Supreme Court. After the Ninth Circuit upheld the nationwide injunction, the Supreme Court agreed to take up the entire case.

The questions before the Justices were threefold: First, does the Court even have jurisdiction to review DHS’ decision to do away with DACA? If so, did the method by which DHS sought to terminate DACA violate the Administrative Procedure Act of 1946 (APA)? Or, alternatively, does rescinding DACA violate the Equal Protection Clause of the Fourteenth Amendment?

Yesterday, the Court gave its answer. Every Justice agreed that the Court can review the DHS’ decision. Then, Chief Justice Roberts for a 5:4 majority held that DHS’ method of ending DACA violated the APA, leaving DACA in place for now and sending the Trump administration back to the drawing board.

Chief Justice Roberts’ Majority Opinion

Roberts’ opinion begins by recapping the case’s procedural history and finding that the APA does not preclude the Court from reviewing DHS’ actions. He then holds that the manner in which DHS sought to wind down the program violated the APA. His argument is based almost entirely on the individual facts of this case. Ultimately, he expresses no opinion as to whether DACA itself is legal, as that issue was not properly presented before the Court. He of course does not comment on whether DACA is good or bad policy, which is a political issue reserved for the political branches.

Jurisdiction

After recapping the procedural history, Roberts takes up the first question presented: whether the DHS’ actions are even reviewable under the APA. Roberts says they are. The APA “establishes a ‘basic presumption of judicial review [for] one suffering legal wrong because of agency action,'” he begins (quoting Abbott Laboratories v. Gardner (1967) and the text of the APA at 5 U.S.C. §702). There are a few ways to overcome this presumption. One is that the agency’s actions were entirely discretionary. A court has no power to review a decision over which the agency has the ultimate authority to make (§701(a)(2)).

DHS claimed this exception was in play here. It adduced Heckler v. Chaney (1985), in which the Court held that an agency’s decision to forgo individual law enforcement proceedings is “committed to an agency’s absolute discretion.” Applying Chaney here, DHS argued that a general non-enforcement policy is functionally the same as an individual non-enforcement policy. Turning to DACA, DHS claimed it qualified as a general non-enforcement policy since it withholds enforcement of federal immigration law from its recipients. Thus, the argument goes, DHS’ DACA maneuver qualifies under Chaney as an exception to the APA’s presumption on reviewability.

Roberts is unpersuaded. He finds fault with the argument’s most important assumption: DACA is not just a non-enforcement policy. Even if a general non-enforcement policy is equivalent to an individual non-enforcement policy (a big “if” on which Roberts does not opine), DACA does more than simply reserve enforcement of immigration law for some. DACA instructs the U.S. Customs and Immigration Service (USCIS) to “establish a clear and efficient process” for identifying potential recipients. That process is essentially adjudicative: USCIS receives applications, reviews them, and makes determinations on whether an immigrant qualifies. To Roberts, the decision to grant deferral to a DACA recipient is an “‘affirmative act of approval,’ the very opposite of a ‘refus[al] to act'” (quoting Chaney).

To be fair, this response is a bit shaky. One could plausibly argue that Roberts and DHS are simply using different language to describe ultimately the same thing. Roberts argues that DACA requires positive action, i.e., that DHS must do something (institute the USCIS’ review process); whereas DHS argues that DACA requires negative action, i.e., that DHS not enforce immigration law. But ultimately, Roberts and DHS both agree on one thing: DHS abstains from enforcing immigration law when it comes to DACA recipients, and it simply has to engage in a judge-like process to determine who receives that privilege.

However, there is another facet of DACA that spells disaster for DHS’ argument: its work authorization and federal benefits programs. Each of the 700,000 DACA recipients can apply to work in the U.S. or receive Medicare and Social Security benefits. This part of DACA is clearly more than a non-enforcement policy. Indeed, it is a policy that confers on DACA recipients substantive benefits: federal work opportunities and welfare and healthcare. “Unlike an agency’s refusal to take requested enforcement action,” Roberts notes, “access to these types of benefits is an interest ‘courts often are called upon to protect'” (quoting Chaney).

This, in my view, is a stronger response to DHS’ jurisdiction claim. Nonetheless, Roberts concludes that the APA does not preclude review of DHS’ actions on DACA. A few of DHS’ fallback arguments—relying on the Immigration and Nationality Act of 1968—are also unavailing. Every other Justice agrees on this point.

“Arbitrary and Capricious”

The jurisdiction question settled, Roberts turns to the meat of the case: whether the manner in which DHS tried to terminate DACA violated the Administrative Procedure Act (APA). Roberts answers “yes,” joined by his four more-liberal colleagues Justices Ginsburg, Breyer, Sotomayor, and Kagan. Roberts takes pains to note the narrowness of this conclusion. It does not mean that DACA itself is legal. It certainly does not opine on whether DACA is good or bad policy. It simply means that the APA sets out a specific process by which agency actions must be taken, and DHS’ actions here failed to follow that process. Thus, if the Trump administration wants to cancel DACA, it must do so in a different way—one that comports with the APA.

The APA sets out a list of requirements whenever an executive agency (like DHS) wants to take administrative action. Crucially, the agency cannot act “arbitrar[ily]” or “capricious[ly]” (5 U.S.C. §706(2)(A)). To determine whether an agency so acted, courts must decide whether the agency’s measures were “based on a consideration of the relevant factors and whether there has been a clear error of judgment” (Citizens to Preserve Overton Park, Inc. v. Volpe (1971)).

The record here is a bit complex. Recall that DHS promulgated two different memos justifying its DACA rescission: Acting Secretary Duke’s memo at the time of the DHS’ decision, and Secretary Nielsen’s memo after the decision and during litigation. Recall too what those memos said: Duke argued DACA was unlawful; Nielsen echoed this argument and then went further, arguing it was bad policy and would result in questionable law enforcement practices.

Roberts argues that Nielsen’s memo should not be considered. The Court has long held that one of administrative law’s fundamental tenets is to review an agency’s actions based on the reasons it offered at the time of the agency’s decision (see, e.g.SEC v. Chenery Corp. (1946)). In other words, explanations proffered after the decision—”post hoc justifications”—hold no legal weight. An agency is allowed to explain its reasons in greater detail after the decision, but it cannot offer new reasons.

Let’s return to the dual memos. Duke’s memo was written at the time of DHS’ decision, and it relies entirely on the abrupt statement that DACA is illegal. Nielsen’s memo was written well after DHS’ decision. It reiterates the “illegality” reason before offering two new reasons (questionable enforcement practices and bad policy). Consequently, Roberts says the Court may only consider the “illegality” reason in Duke’s memo and the corresponding part of Nielsen’s memo.

Justice Kavanaugh, in dissent, objects that Roberts should consider all of Nielsen’s memo. First, Kavanaugh argues that the Nielsen memo itself constituted an agency decision, setting out its own reasons for doing so. In other words, DHS under Duke made a decision to rescind DACA on the ground that it was illegal. Later, DHS under Nielsen made another decision—the same one—on the grounds that DACA was illegal (or, at least, questionably legal) and bad policy. Thus, the Nielsen memo is not a post hoc justification.

Roberts responds ably. Nielsen did not seek to make a new decision on DACA, he says. Rather, she sought only to provide greater justification for the DHS’ prior decision—likely as a defense to the D.C. district court’s inquiry as to whether Duke’s reasons were sufficient. Indeed, Nielsen’s memo said exactly that: Nielsen “decline[d] to disturb the Duke memorandum’s rescission” and sought only to “provide[] further explanation” for that decision. The federal government’s brief in the district court (naïvely) concurred: Nielsen’s memo was merely “additional explanation for [Duke’s] decision,” and the district court should “leave in place [Duke’s] . . . decision to rescind the DACA policy” (emphasis added). Objection refuted.

Second, Kavanaugh says that the post hoc justification doctrine limits only what lawyers may say, not what agency representatives may say. He cites four cases in which the Court rejected after-the-fact explanations from attorneys. But just because the Court has said attorneys cannot violate the doctrine does not mean that only attorneys cannot violate the doctrine, Roberts responds. It doesn’t matter who offers the explanation; what matters is when the explanation is offered. Whether from counsel or agency employees, “[t]he functional reasons for requiring contemporaneous explanations apply with equal force,” Roberts writes. After all, that’s why they’re called “post hoc rationalizations,” not “advocate rationalizations.”

Third, Kavanaugh attempts to distinguish between agency adjudicative action and agency rulemaking action. The “contemporaneous explanation” requirement applies only to the former, the thought goes, not the latter. And since Kavanaugh thinks Nielsen’s memo constituted rulemaking action and not adjudicative action, the requirement is inapplicable here. Roberts relegates his response to a footnote. First, Kavanaugh appears to pull this distinction out of thin air, as he offers no statutory support and cites no case in which the Court ever attempted to draw such a distinction. Second, not even DHS sought to raise this “unheralded” objection. (Conceivably, Roberts could have also responded that DHS’ move to terminate DACA was a sort of “adjudicative” action, as we saw above. But he didn’t.)

Thus, Roberts fends off Kavanaugh’s objections, concluding that the Court should look only to Duke and Nielsen’s memos as they pertain to the “illegality of DACA” for the reasons for DHS’ decision.

Now: Based on that reason, was DHS’ determination to jettison DACA “arbitrary and capricious” under the APA? Yes, Roberts says. Why? Because Duke “‘failed to consider . . . important aspect[s] of the problem’ before her” (quoting Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. (1983)).

Here is where we get to matters of judgment.

The problem before her was what to do with DACA after (1) the Fifth Circuit’s preliminary injunction against DACA’s expansion (DAPA) and (2) the Attorney General’s subsequent opinion that DACA suffered from same legal defects the Fifth Circuit saw in DAPA. To start, Roberts says we must look to the Fifth Circuit’s decision on DAPA. DAPA—just like DACA—had two components. At base, it exempted a class of immigrants from a portion of federal immigration law. But on top of that, it made that class eligible for certain benefits, like work authorization and welfare. The Fifth Circuit took exception to this supplementary component, Roberts points out. It held that DAPA was “manifestly contrary” to federal immigration law precisely because it purported to make its recipients eligible for employment and welfare benefits. This part of DAPA, the Fifth Circuit reasoned, was beyond the Obama DHS’ authority to create (presumably, it must be created by Congress). But the “core” of DAPA—and of DACA—is the temporary deferral of action on certain immigrants’ removal from the country. Creating this part of DAPA, the Fifth Circuit implied, was within DHS’ authority since DHS is tasked with enforcing federal immigration law as it sees fit. None of the litigants challenged DHS’ authority to establish and implement this bare-bones part of DAPA, and nothing in the court’s opinion should be construed to question such authority, the Fifth Circuit added.

To put it differently, DAPA—and its twin, DACA—was a two-layered birthday cake. Its base was DHS’ decision to exempt certain immigrants from current immigration removal procedures. No federal court found any express issue of statutory authority with this part. But the second layer added frosting and sprinkles. It gave those special immigrants sweeteners, in the form of employment opportunities and healthcare and welfare benefits. The Fifth Circuit found express issue with the frosting and sprinkles, but not so with the base.

Let’s return to Acting Secretary Duke’s response. She “recognized” that the Fifth Circuit determined the DHS had dubious authority to create “benefits associated with DAPA,” Roberts observes. And, per Attorney General Session’s subsequent memo to Duke, she was aware that the nation’s top law enforcement officer saw the same legal defects in DACA as the Fifth Circuit saw in DAPA. Therefore, argues Roberts, the aspects of the problem Duke should have considered were twofold: what to do with DACA after problems had been identified (1) with its supplemental benefits, but (2) not with its basic immigration policy.

However, Duke’s decision—to terminate all of DACA—did not appear to consider both aspects of the problem, concludes Roberts. She offered no explanation as to why it was appropriate to terminate both the supplemental benefits and the underlying immigration policy. Instead, she “treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.” In doing so, she committed a classic error of administrative law identified in State Farm (cited above). And the applicable portion of Nielsen’s later memo, which simply reiterated the illegality of DACA on the whole, adds nothing to Duke’s defense.

To continue the analogy, Duke lumped the toppings together with the foundation. The Fifth Circuit (and the Attorney General) found that the top layer of the cake—and only the top layer—was moldy. Duke therefore decided that the best course of action was to toss the entire cake, foundation and all. That is, toss the employment and welfare benefits and the deferred action on removing certain immigrants. Because she offered no explanation for going above and beyond, and since there is no indication she even considered making a substantive distinction, she “failed to consider . . . important aspect[s] of the problem before her” and her decision was “arbitrary and capricious” under the APA, concludes Roberts.

Stepping back for a moment, there are a couple things to note about this argument. First, it is almost entirely dependent on the individual facts of this case. For example, had the Fifth Circuit expressed skepticism on the merits of DAPA’s basic policy, or had it not drawn a distinction between that part of DAPA and its supplemental benefits, Roberts’ argument is no longer valid. The same would be true if Attorney General Sessions’ memo had critiqued DAPA on the whole or coupled its two different policies. If Acting Secretary Duke’s memo had said anything about the Fifth Circuit’s decision vis-à-vis DACA’s basic policy, or if she had ever testified to that effect, Robert’s argument is no longer valid. If Secretary Nielsen’s memo had followed a similar course, Roberts’ argument is (conceivably) no longer valid. All this goes to show that this case hinges almost entirely on its individual facts. It was the way the cards fell: the substance of the Fifth Circuit’s decision, the way in which the Attorney General interpreted it, what Duke’s memo said, and how Nielsen’s memo rephrased Duke’s memo. Though Roberts’ decision sets precedent, it’s hard to imagine an identical case arising in the future. (In fact, it appears only one historical case captures what happened here: State Farm (cited above)).

Second, Roberts seems to have laid out a blueprint for DHS to wind down DACA in the future. If DHS wants to terminate just the supplemental-benefits part of DACA, it need only study this case to show that it “consider[ed]” all “important aspects of the problem” (and meet the APA’s other requirements). Revoking all of DACA is a bit thornier. Roberts expresses no opinion as to whether DACA itself is legal, of course. But if the DHS wants to wind down the entire program, it appears Roberts has given it a roadmap too: do so in accordance with all applicable statutes and regulations, and give a sufficient reason for not decoupling DACA’s two components. Naturally, such a decision would be met with several lawsuits. They would likely turn on the “sufficiency” of the reason for DACA’s termination under administrative law. Nevertheless, the framework appears to be there.

Returning to the case, Roberts offers another reason as to why DHS’ decision was arbitrary and capricious: Duke failed to consider reliance interests. “When an agency changes course, as DHS did here, it must ‘be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account,'” Roberts explains (quoting Encino Motorcars, LLC v. Navarro (2016)). For instance, “DACA recipients 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,” writes Roberts (quoting University of California’s brief). But Duke’s memo ignored these factors. Duke could have decided that the benefits of rescinding DACA would outweigh these reliance interests, or vice versa. But the point is not the decision she might have made. The point is that she failed to even consider such a decision.

For all these reasons, Roberts concludes that DHS’ decision to rescind DACA violated the Administrative Procedure Act. DHS may, of course, opt for round two in the future, but it must do so pursuant to administrative procedures. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined Roberts in this part of his opinion

Equal Protection

Finally, Roberts touches on an Equal Protection challenge to DACA’s termination. He ultimately holds that there was no constitutional violation, but Justice Sotomayor disagreed (more on that later). Thus, only three Justices joined this part of Roberts’ opinion, so it does not carry precedential force.

To demonstrate unequal protection, a plaintiff must show that an “invidious discriminatory purpose” was a “motivating factor” in the relevant decision (quoting Arlington Heights v. Metropolitan Housing Development Corp. (1977)). DACA recipients here raised three arguments: (1) rescinding DACA disparately harms Latinos; (2) there is an “unusual” history behind the rescission decision; and (3) campaign statements made by President Trump.

But Roberts finds none of these points—jointly or severally—sufficient. The first argument would lead to an unworkable legal doctrine. Since Latinos make up the vast majority of noncitizens, one would expect them to outnumber other noncitizens under virtually any immigration program. Thus, nearly any change in any immigration policy would fail on Equal Protection grounds, even if that policy is generally applicable. Second, there was nothing “irregular” about the history behind the Trump DHS’ decision to cancel DACA. Lower courts couched it as a “strange about-face,” claiming DHS said DACA was legal only to do a 180. But Attorney General Sessions’ memo clearly renders false any such idea. Third, Trump’s alleged statements “do not qualify as ‘contemporary statements’ probative of the decision at issue,” Roberts says (quoting Arlington Heights).

Conclusion

All in all, Roberts holds that DHS did not consider all the relevant factors before deciding to wind down DACA. It is a rebuke to the Trump administration, albeit a narrow and temporary one. Trump will have until at least November to try to rescind the immigration program once again. Roberts did not opine on whether DACA itself is legal, let alone on whether it is good or bad policy.

It is the second time in as many years that Roberts, now the Court’s swing justice, joined his more-liberal colleagues to strike down a major Trump administration executive policy. Last year, Roberts invalidated the administration’s move to add a citizenship question to the 2020 Census, finding that the reasons offered by the Secretary of Commerce, Wilbur Ross, were pretextual. (That case was Department of Commerce v. New York).

What does this mean for DACA recipients? For now, their dream is alive; DACA remains on the books. They ought to be vigilant in following the Trump administration’s actions from here on out. In the meantime, do not forget about Congress. Congress could pass legislation formally codifying DACA, such as the DREAM Act (which has languished in the Capitol Building since 2001). Of course, such legislation would have to pass the Senate, a high mountain to climb, and the president’s desk, an insurmountable one. On the other hand, Congress could propose legislation outlawing DACA—which would face considerable opposition in the House. In any event, DACA recipients are here to stay for the near future.

Justice Sotomayor’s Opinion

In a short opinion, Sotomayor agrees that DHS’ attempt to wind down DACA violated the APA. However, she does not agree with Roberts’ findings on the Equal Protection Clause issue. Sotomayor thinks DACA recipients have made at least a preliminary showing of unequal treatment. So, she would remand that case so that lower courts can decide the question whether rescinding DACA violates the Equal Protection Clause.

At this stage, the Equal Protection issue is merely procedural: can the respondents in this case even raise an Equal Protection challenge? A “yes” answer requires clearing a low bar, Sotomayor says; the respondents must simply “state sufficient facts that would ‘allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged,'” she says (quoting Ashcroft v. Iqbal (2009)). Roberts thinks the bar hasn’t been cleared (as we saw above). Sotomayor disagrees.

She points out that each of the lower courts concluded that the respondents cleared the bar. Next, she affords more gravity to President Trump’s campaign statements than Roberts does. Trump has called Mexicans “people that have lots of problems”; “criminals, drug dealers, [and] rapists”; “the bad ones”; and “animals” (citing evidence on the record in the lower courts). To say that such statements have no bearing on future immigration policy is a “blinkered” approach, Sotomayor asserts. She is hard-pressed to conclude that such expressions have no relationship whatsoever to the DHS’ subsequent attempts to revoke a policy that helps Mexican immigrants—at least insofar as the procedural requirement for asserting an Equal Protection claim is concerned. Sotomayor’s argument here echoes the same argument she made in her dissent in Trump v. Hawaii (2017), in which a majority of the Court—led by Chief Justice Roberts—upheld a Trump executive order restricting the entry of certain immigrants from Muslim-majority countries into the U.S. In doing so, the Court dismissed an Equal Protection challenge which relied on Trump’s incendiary campaign statements.

Third, she disagrees with Roberts’ approach when he dismisses the “disparate impact” argument against DACA’s rescission. Recall that Roberts was worried such an argument would yield an impractical legal doctrine, since all immigration policy changes would unevenly affect Latinos. He thus dismissed it on its own. But Sotomayor says the Court should consider that argument in the context of Trump’s campaign statements. “At this stage,” she contends, “I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier.”

Finally, she says the DHS’ actions in the months prior to its DACA announcement were highly irregular, mirroring an argument put forward by the lower courts. For these reasons, Sotomayor would not have dismissed the respondents’ Equal Protection challenge at this stage of the litigation.

Justice Thomas’ Dissent

Justice Thomas, joined by Justices Alito and Gorsuch, penned the lead dissent. In a 25-page opinion, Thomas runs due south to Roberts’ north. DACA was “unlawful from its inception,” he proclaims. After multiple failed legislative proposals to create a DACA-like program, the Obama DHS “took matters into its own hands.” It created DACA “without any purported delegation of authority from Congress” via a three-page memo. So it’s no small wonder why the Trump DHS sought to cancel the program, Thomas contends; it was merely correcting an error of law. “The decision to countermand an unlawful agency action is clearly reasonable,” he argues. “So long as the agency’s determination of illegality is sound, our review should be at an end.”

“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” he strikingly asserts. Thomas sees DACA, in essence, as legislation. “The Court could have made clear that the solution respondents seek must come from the Legislative Branch.” But it didn’t.

These assertions are extraordinary. But Thomas is not concerned about only the soundness of the Court’s decision. He invites the reader to consider the ramifications of it too. First, Thomas thinks the Court’s opinion will greenlight political battles in the courts. After all, if the Court really did skirt the “politically controversial but legally correct decision,” Thomas would be correct in saying that the Court has gotten itself into the political business. Second, Thomas argues today’s decision “creates perverse incentives, particularly for outgoing administrations,” to “bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda.” Though this is high rhetoric, it’s not entirely without foundation if you agree with Thomas on DACA’s illegality.

Thomas begins his opinion by searching for DHS’ authority to create DACA. To Thomas, that search is in vain. Quoting Roberts, “an agency literally has no power to act . . . unless and until Congress confers power upon it” (Arlington v. FCC (2013) (Roberts, dissenting)). In creating DACA, DHS “act[ed]” in two ways (as discussed earlier): it (1) exempted a certain class of immigrants from the ordinary process of removal; and (2) made that class eligible to seek certain benefits. But nowhere in the ridiculously expansive web of immigration law has Congress given DHS any authority to do either of those things, Thomas argues.

Thomas is thoroughly unimpressed with the Obama DHS. He argues that it did not merely use its authority to enforce existing immigration law as it saw fit, exempting certain immigration from the typical removal procedures. Instead, it created a new class of immigrants that would enjoy lawful residency—a power that Congress has never delegated to an executive agency. In other words, Roberts seems to argue that the Obama DHS took a negative action; Thomas argues it took a positive action, even if one considers only DACA’s fundamental policy (deferring removal action). This positive action requires Congress’ blessing, he writes, but Congress never gave it. In fact, the “intricate [scheme] governing [removal proceedings]” that Congress put in place “indicates that DHS has no discretion to supplement or amend the statutory provisions in any manner, least of all by memorandum.”

An obvious objection to Thomas’ argument is that Congress has given DHS broad authority to enforce immigration law on its own terms. For example, the agency may “[e]stablis[h] national immigration enforcement policies and priorities” (6 U.S.C. §202(5)). It may “perform such other acts as [it] deems necessary for carrying out [its] authority” (8 U.S.C. §1103(a)(3)). And it may “establish such regulations, . . . issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary” (§1103(g)(2)). Based on these statutes, the thought goes, DHS has the inherent authority to “establish” a “national immigration enforcement policy” as it “deems necessary.”

But this ignores the complex, detailed framework Congress established elsewhere in federal immigration law, Thomas replies. “Basing the [DHS’] ability to completely overhaul immigration law on these general grants of authority would eviscerate that deliberate statutory scheme by allowing the Secretary of DHS to grant lawful presence to any illegal alien in the United States” (cleaned up). In other words, these abstract provisions must be read in the broader context of current immigration law. That context—which contains a “granular specificity”—does not support the idea that DHS has the broad, abstract power to create DACA. Therefore, Thomas concludes that DACA is illegal.

No wonder, then, why Attorney General Sessions wrote to Acting Secretary Duke, advising her that DACA suffered from the same “legal defects” as DAPA and would be struck down in federal court. To Thomas, it doesn’t matter what the Fifth Circuit said or what Sessions, Duke, or Nielsen wrote in their letters to justify DACA’s rescission. The unlawfulness of DACA is sufficient for its revocation. “This conclusion should begin and end our review,” Thomas asserts. Canceling an unlawful program is intrinsically lawful; no additional explanation needed.

At this point, it may be appropriate to take a quick step back. Let’s assume Thomas is wrong; DHS did have the statutory authority to establish DACA. It created it, implemented it, and down the road tried to rescind it. Roberts holds that its method of rescission violated the Administrative Procedure Act, and thus DACA will remain on the books for the time being. Where does this reasoning go wrong?

Thomas has the answer: in rescinding DACA, we all know DHS was required to follow the APA. But who said DHS followed the APA when it created DACA? If it didn’t, the current version of DACA is unlawful. Roberts devotes no ink to this issue. But Thomas devotes four pages to it, effectively using it as an alternative argument if the reader isn’t convinced that DHS possesses no statutory authority to establish DACA.

DACA is a “substantive or legislative” rule since it has “the force and effect of law” and—to Thomas—was created via positive agency action (quoting Chrysler Corp. v. Brown (1979)). Under the APA, such rules must go through an informal publicization process called “notice and comment” before it can be enforced. The relevant agency must publish its proposed rule in the Federal Register, justify the rule under existing law, describe the rule’s intended effects, identify those to whom it will be applicable, and allow any interested parties to submit comments or suggestions on the proposed rule (5 U.S.C. §§553(b)–(c)). After this “notice and comment” period, the agency may publish the final version of the rule as long as it gives a justification that is based on existing law and the comments the agency received.

But the Obama DHS “undisputed[ly]” did not follow this process when it established DACA, Thomas argues. He offers four reasons: The Obama DHS did not allow for any comments on the proposed policy from interested parties. It did not provide any legal or policy justification for exempting a certain class of noncitizens from existing federal immigration law. It cited no existing statute under which it has the authority to create this rule. And it did not provide any discussion of “economic considerations or national security interests.” In short, Thomas contends the Obama DHS didn’t follow the APA’s required process, and DACA accordingly never acquired the status of law. It is “unclear” to Thomas why the Trump DHS “needed to provide any explanation whatsoever when it decided to rescind DACA.” And to repeat from earlier, Roberts does not devote any ink to this issue.

For these reasons, Thomas, Alito, and Gorsuch would hold that the Trump administration’s decision to wind down DACA did not violate the APA. Really, however, that conclusion is a moot point. Since Thomas thinks DACA itself is illegal, the Trump administration does not need to offer any justification for correcting a previous administration’s legal error.

Justice Alito’s Dissent

Justice Alito penned a one-page dissent. He unequivocally agrees with Thomas’ opinion, but he adds a few words to rebuke the federal judiciary. Alito argues that federal courts stalled a perfectly legal maneuver from a sitting president. President Trump’s push to rescind DACA started early in his term. Several courts then blocked Trump’s move in the form of preliminary injunctions. In November 2018, U.S. Solicitor General Noel Francisco petitioned the Supreme Court to hear the case. Nearly nineteen months later, the Court issued its decision—and “still [did] not resolve the question of DACA’s rescission,” Alito writes. “What this means is that the Federal Judiciary . . . has prevented” DACA’s rescission de facto without doing so de jure “during an entire Presidential term.” “Our constitutional system is not supposed to work that way,” Alito chides.

Justice Kavanaugh’s Dissent

The caboose of the decision, freshman Justice Kavanaugh wrote a seven-page dissent. He notably did not join Thomas’ dissent, which means he does not necessarily agree that DACA is unlawful. Kavanaugh’s dissent hinges entirely on whether the manner in which the Trump DHS sought to rescind DACA comported with the APA. Contra Roberts, Kavanaugh concludes that it did.

His reasoning turns on consideration of all of Secretary Nielsen’s memo, to which Roberts objected on administrative-law grounds (as discussed previously). Read in its entirety, Kavanaugh would hold that Nielsen’s memo provides sufficient justification to explain the agency’s decision and thus does not flout the APA’s arbitrary-and-capricious standard. The merits of this argument—as well as Roberts’ objections—were discussed previously.

A final note: Kavanaugh faults Congress for the “uncertainty” surrounding the long-term status of current DACA recipients. “That uncertainty is a result of Congress’s inability thus far to agree on legislation, which in turn has forced successive administrations to improvise, thereby triggering many rounds of relentless litigation with the prospect of more litigation to come,” he writes. A Congressional enactment formally codifying DACA would “produce a sturdy and enduring solution” and “remove th[at] uncertainty.”


Photo Credits: @Katieleebarlow

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