We are still waiting for the Supreme Court's decision on DACA in Department of Homeland Security v. Regents of the University of California. And we are still waiting for the elite media to cover the legal issue involved.
The legal issues in the case should be simple but they have been clouded by the parties' arguments. The plaintiffs need DACA to fit a narrow niche: DACA has to be expansive enough that it goes beyond prosecutorial discretion, but narrow enough that it can fit within something that does not require notice and comment.
The government's argument defending DACA's rescission has been so lame that the only conclusion I can come to is that the folks directing its defense in DHS are part of the same Deep State that told Obama that DACA was lawful in the first place; and that they do not want to further undermine their credibility by raising a strong defense against DACA.
In mathematics the go-to method of reasoning is proof by contradiction. However in law, judges rarely employ that method. One reason is that in law defense claims are considered independent. Concurrent conflicting defenses along the lines of these are not uncommon:
- My dog did not bite the girl.
- My dog bit the girl to defend itself.
- I do not own a dog.
The government's main defenses for rescission of DACA are:
- The decision is not reviewable because it is enforcement discretion.
- DHS had reasonable concerns that DACA was unlawful because of the adverse decision in Texas v. United States over DAPA.
- DHS had reasonable policy concerns over DACA.
Notice that the first and second defenses conflict. If the decision to rescind DACA is unreviewable as an enforcement policy, the decision to put DAPA in place should have been equally unreviewable. Yet DHS relied on the Fifth Circuit decision in Texas that found DAPA was reviewable. The defenses inherently contradict, as Justice Ginsburg pointed out. It is definitely better to have harmonious defenses and claims.
Let's take a look at the non-reviewability argument on its own. Prosecutorial discretion is not reviewable. In nearly every crime show on television, the frustrated detective and victims complain that the district attorney will not take a case to trial because she says there is not enough evidence. However, there is now a mechanism to challenge a decision like that in court to force the district attorney to move forward in a case.
The government argues that the decision to rescind DACA is non-reviewable as well. However, the issue raised in Regents is slightly different because DACA does not involve the discretion not to prosecute in an individual case. The question in Regents is whether a general policy on enforcement is reviewable. The government argues it is not.
I can come up with many kinds of examples that illustrate the absurdity of the government's argument, but here is one that lacks subtlety. Imagine the head of a government agency puts out a policy memo that states that, under the agency's prosecutorial discretion, certain laws will only be enforced against African-Americans. Under the government's argument, such an enforcement policy is unreviewable by the courts.
Every court that has looked at the issue has concluded such a policy is reviewable. (See here, here, here, and here.)
The government's argument that the decision to rescind DACA is not reviewable by the courts is preposterous.
Judge Andrew S. Hanen is presiding over legal challenge to DACA in the Southern District of Texas. In an unpublished opinion on a motion to stay, Judge Hanen noted that is hard to predict the how the Supreme Court will go based upon oral argument, but he extracted dialog from the transcript of the oral argument on DACA in the Supreme Court that leaves little doubt about this question::
Justice Ginsburg: General Francisco, there's a strange element to your argument because you're arguing this is a discretionary matter; it's not reviewable because it's committed to agency discretion.
But, on the other hand, you say the agency had no discretion because this program was illegal. In other words, the law requires you to drop DACA. So how can it be committed to your discretion when you're saying we have no discretion; this is an illegal program? [Sup. Ct. Trans. p. 6.]
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Chief Justice Roberts: What if the Attorney General said he, in his exercise of prosecutorial discretion, was not going to enforce any of the immigration laws?
General Francisco: Uh —
Chief Justice Roberts: Would that still be non-reviewable? [Id. at 8.]
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Justice Kagan: Just to — just to understand what you're saying, General, you — that would suggest that the original DACA is reviewable, but the rescission of DACA is not. In other words, are you suggesting that there's an asymmetry in what's reviewable? [Id. at 9.]
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Justice Breyer: And there have been two bases. The first base is a big argument between Ken Davis and Burger, you know, and is — is it that you can't review an agency, does that little thing about you cannot — commit it to agency discussion [sic] by law, does it mean that there's certain — just mean that there are certain things an agency might do. Don't review them even if they're totally wrong, like Panama Canal tolls. [Id. at 13.]
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Justice Breyer: And if that history, an understandable power to give to a prosecutor, is to be valid, courts, stay out of it. Now that does not apply where what's at issue is not a prosecutor making an individualized decision but, rather, an agency's policies —
General Francisco: Right.
Justice Breyer: — generalized, written down, and I can't think of a reason why in such a case you wouldn't review it in a court. [Id. at 14.]
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Justice Kavanaugh: Wouldn't what — wouldn't what you just read also have made DACA itself unreviewable, to pick up on Justice Kagan's question from earlier? [Id. at 16.]
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Justice Kagan: If — if I understand Secretary Nielsen's memo correctly, Secretary Nielsen said that she — she did have a — a conclusory statement about weighing the reliance interests, but she weighs them against what she calls — I think it's the questionable legality of the program.
Now that assumes one of the things that we're all here to discuss, which is that the program was of questionable legality. If the program turns out not to be of questionable legality, in other words, if some or many of us think that the original program was legal, how does her memo suffice to do that balancing? [Id. at 26.]
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Justice Sotomayor: I'm — I have always had some difficulty in understanding the illegality of DACA. DAPA I put aside because, in DAPA —
General Francisco: Right.
Justice Sotomayor: — there was actually a process for attaining a pathway to residency. And I saw the argument that what DAPA did was contrary, directly contrary, to that path. [Id. at 28.]
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Justice Kagan: You know, the INA does give quite a lot of discretion to administrative officers, as you yourself admit and have argued on previous occasions and, indeed, in part here.
General Francisco: Right.
Justice Kagan: So are you saying that — are you saying that DACA was — violated any particular provision of the INA? What are you saying it violated?
General Francisco: Sure.
Justice Kagan: Because —
General Francisco: So I'm saying —
Justice Kagan: — because there's a big delegation, right, that says you get to make national policy. So what did DACA violate? [Id. at 35.]
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Justice Alito: — I'm not sure that really responds to my question, so I'll give you an example. Let's say that a — that there is a policy that is certain — a certain category of drug cases will not be prosecuted in federal court. Let's say they are cases involving less than five kilos of cocaine. So case — cocaine cases with lesser amounts of drugs will not be prosecuted in federal court as a matter of enforcement priority. And then that is changed. So the five kilos is reduced to three.
Would that be reviewable?
Mr. Olson: No, I don't think it would be.
Justice Alito: What is — well, what's the difference? [Id. at 46.]
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Chief Justice Roberts: But, Mr. Olson, the whole thing was about work authorization and these other benefits. Both administrations have said they're not going to deport the people. So the deferred prosecution or deferred deportation, that's not what the focus of the policy was. Yes, the other statutes provided that, but it was triggered by — by the memo. [Id. at 48-49.]
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Justice Gorsuch: Mr. Olson, I — I think you've moved on to the merits, and I — I guess I'm still struggling with Justice Alito's question on — on reviewability. Can you help me understand what is the limiting principle?
I — I — I hear a lot of facts, sympathetic facts, you put out there, and — and they speak to all of us. But what's the limiting principle between, you say, reviewability here for an enforcement, a classic kind of prosecutorial discretion that one might have thought would have fallen under Heckler versus Chaney, and the example Justice Alito gave or Heckler versus Chaney itself? What's —
Mr. Olson: Heckler —
Justice Gorsuch: — What's the — what's the limiting legal principle —
Mr. Olson: Well, there's a —
Justice Gorsuch: — you'd have this Court adopt?
Mr. Olson: — it's a composite — in this case, it's a composite of principles, a determination that — a categorical determination involving a substantial number of people — [Id. at 51-52.]
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Justice Breyer: And imagine an SEC rule or imagine an HHS rule and what it says is we are not going to take action to give a certain category of people their benefits. Not reviewable? I mean, nobody would think that.
Mr. Mongan: Well —
Justice Breyer: So — so — so we're struggling still.
Mr. Mongan: Yes.
Justice Breyer: And I'm saying honestly I am struggling to get the right rule. [Id. at 73-74.1.]
It would be shocking if the Supreme Court were to see this issue differently than all the other courts and find that the decision to rescind DACA is unreviewable.
The great mystery is why the government would make this its main argument (let alone make it at all). I have great sympathy for the Justice Department lawyers who had to make this lame argument in front of various courts at the direction of DHS.