(Chief Justice) Roberts’ Rules of Reliance

Executive Summary

• In 2020, the Supreme Court in DHS v. Regents of the University of California invalidated the Trump administration’s attempt to terminate the Obama administration’s Deferred Action for Childhood Arrivals administrative quasi-amnesty program for illegal aliens who had arrived in the U.S. as minors. Chief Justice John Roberts, Jr., stated in his majority opinion that the Court’s ruling was not about whether DHS could rescind DACA — “All parties agree that it may. The dispute is instead ... about the procedure the agency followed in doing so.”
• The Court chose not to decide whether DACA was lawful or not. What it did do was rule that DHS’s termination violated the Administrative Procedure Act because:
  • DHS had not considered the “reliance interests” built up by DACA beneficiaries, even though the 5th Circuit Court of Appeals and Attorney General Jeff Sessions had concluded that DACA was unlawful and even though DHS had stressed from the onset of DACA that grants could be revoked at any time and that the program provided no substantive rights to beneficiaries.
  • What the 5th Circuit had concluded to be unlawful about DACA was the benefits (including “lawful presence”, work authorization, and eligibility for federal welfare benefits) flowing to DACA beneficiaries, not deferred action’s “forbearance” (notification to aliens that they would not be subject to removal proceedings for a period of time). Consequently, DHS’s termination also violated the APA because DHS had failed to consider the alternative of cutting off access to such benefits without ending forbearance.
• Justice Clarence Thomas called the majority’s opinion “absurd” for requiring the DHS to “treat the invalid rule as though it were legitimate” and warned that “the majority erroneously holds that ... agenc[ies are] not only permitted, but required, to continue administering unlawful programs that [they] inherited from a previous administration.” And Justice Samuel Alito warned that “without holding that DACA cannot be rescinded, [this Court] has prevented that from occurring during an entire Presidential term”.
• Harvard Law School Professor Benjamin Eidelson contends that what drove Chief Justice Roberts’ decision was the fact that the Trump administration had tried to “pass the buck”, claiming that it was terminating the “politically popular” DACA program because of its unlawfulness rather than because it represented poor public policy.
• I have come to the conclusion that:
  • Justice Roberts’ opinion is far more thoughtful and defensible than I had initially considered it to be. While there are still parts that I believe to be wrongheaded or opportunistic, the opinion as a whole cannot be summarily dismissed as judicial hackery or activism.
  • Texas and the other states that brought the original legal challenge to DAPA (DACA’s sister program) share part of the blame for the outcome in Regents, as does the federal district court that enjoined DAPA and the 5th Circuit Court of Appeals that affirmed the injunction, and the Trump administration itself, for they all failed to clearly stake out, let alone persuasively advocate for, the position that DAPA/DACA’s “forbearance” alone is unlawful.
  • Because of this universal failure to proclaim DACA’s “forbearance” as unlawful, it is hard to justify DHS not at least considering (even if ultimately rejecting) the alternative of retaining forbearance in order to address reliance interests.
  • The Trump administration made a mistake in not seeking to immediately terminate DACA, but rather planning for an “orderly wind-down”, which undercut the argument that the federal government could not address reliance interests of DACA beneficiaries because, in the words of Justice Thomas, “No amount of reliance could ever justify continuing a program that allows DHS to wield power that neither Congress nor the Constitution gave it.” The wind-down itself demonstrated that DHS believed that it had the flexibility, at least for a period of time, to continue an unlawful program.
  • DAPA and DACA’s forbearance was, in fact, unlawful in and of itself. There is a profound difference between, on the one hand, declining to devote resources to institute removal proceedings against particular aliens (“prosecutorial discretion” as traditionally understood) and, on the other hand, formally notifying aliens that the government promises to ignore their unlawful conduct. As the Trump administration argued, “There is an obvious difference between not pursuing lower-priority offenses ... and affirmatively assisting lower-priority offenders to persist in ongoing illegal activity.”
  • The legacy of Regents is not an unambiguous loss for border security and vigorous enforcement of our immigration laws. While the decision does and will make it more difficult for an administration to terminate programs and policies of a prior administration, well-thought-out terminations that mind the lessons of Regents can still be successfully defended in federal court. Additionally, states have and can continue to use Regents as a sword to challenge immigration program and policy terminations made by the Biden administration.

Introduction

I was shocked by Chief Justice John Roberts, Jr.’s, 2020 majority opinion in DHS v. Regents of the University of California, in which the Supreme Court invalidated the Trump administration’s recission of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) administrative quasi-amnesty program for illegal aliens who had arrived in the U.S. as minors. Hadn’t Chief Justice Roberts, along with Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito, all voted to uphold the 5th Circuit’s affirmance of a district court judge’s injunction against the Obama administration’s sibling Deferred Action for Parents of Americans (DAPA) program? So, why would Roberts pen a decision, joined for the most part by the justices nominated by Democrat presidents, invalidating the Department of Homeland Security’s (DHS) recission of DACA?

Justice Thomas was incredulous, as indicated by his fiery concurrence in part/dissent in part:

• The majority’s demanding review of DHS’ decisionmaking process is especially perverse given that the 2012 memorandum [establishing DACA] flouted the [Administrative Procedure Act’s] APA’s procedural requirements — the very requirements designed to prevent arbitrary decisionmaking.

• [T]his procedural defect compounds the absurdity of the majority’s position.

• [T]he majority now requires the rescinding Department to treat the invalid rule as though it were legitimate ... . [S]uch a requirement is not supported by the APA. It is also absurd.

In this report, I will examine the Supreme Court’s decision in Regents. Of course, Regents’ precedent has set the parameters under which future administrations will have to operate in order to successfully terminate programs and policies of prior administrations with which they disagree, even should they conclude the prior programs or policies to be unlawful.

I have come to a number of conclusion regarding Regents.

First, Chief Justice Roberts’ opinion in Regents is far more thoughtful and defensible than I had initially considered it to be. There are still parts of the opinion that I believe to be wrongheaded or opportunistic, but the opinion as a whole cannot be summarily dismissed as judicial hackery or activism.

Second, Texas and the other states that brought the original legal challenge to DAPA share part of the blame for the Trump administration’s loss in Regents because of the manner in which they drafted their complaint. But the federal district court that enjoined DAPA and the 5th Circuit Court of Appeals that affirmed the injunction also share part of the blame because of the manner in which they ruled on the DAPA case. And the Trump administration itself shares part of the blame because of the manner in which it attempted to terminate DACA and the manner in which it defended the termination in federal court. I am not saying that the Supreme Court would have necessarily affirmed DHS’s recission of DACA had the states, the district court, the 5th Circuit, and the Trump administration argued and acted differently. What I am saying is that if the Supreme Court was still determined to invalidate the termination of DACA, it would likely have been forced to use different rationales.

Third, the legacy of Regents is not an unambiguous loss for border security or for vigorous enforcement of our immigration laws. While the decision does and will make it more difficult for an administration to terminate programs and policies of a prior administration, well thought out terminations that mind the lessons of Regents can still be successfully defended in federal court. States have and can continue to use Regents as a sword to challenge immigration program and policy terminations made by the Biden administration.

DACA and DAPA

It all started in June 2012, when DHS created DACA out of thin administrative air. As the Supreme Court described it in Regents:

[Janet Napolitano, President Obama’s DHS] Secretary ... issued a memorandum announcing an immigration relief program for “certain young people who were brought to this country as children.”... [T]he program applies to childhood arrivals who were under age 31 in 2012; have continuously resided here since 2007; are current students, have completed high school, or are honorably discharged veterans; have not been convicted of any serious crimes; and do not threaten national security or public safety.

...

“[T]o prevent [these] low priority individuals from being removed from the United States,” the DACA Memorandum instructs [U.S.] Immigration and Customs Enforcement to “exercise prosecutorial discretion[ ] on an individual basis ... by deferring action for a period of two years, subject to renewal.”... In addition, it directs U.S. Citizenship and Immigration Services (USCIS) to “accept applications to determine whether these individuals qualify for work authorization during this period of deferred action,”... as permitted under regulations long predating DACA’s creation ... . Pursuant to other regulations, deferred action recipients are considered “lawfully present” for purposes of, and therefore eligible to receive, Social Security and Medicare benefits.

Then, in November 2014, DHS sought to expand DACA and create DAPA, a new deferred action program. As the Court described in Regents:

DHS issued a memorandum announcing that it would expand DACA eligibility by removing the age cap, shifting the date-of-entry requirement from 2007 to 2010, and extending the deferred action and work authorization period to three years ... . In the same memorandum, DHS created a new, related program known as ... DAPA ... [which] would have authorized deferred action for up to 4.3 million parents whose children were U.S. citizens or lawful permanent residents. These parents were to enjoy the same forbearance [“the decision to defer removal (and to notify the affected alien of that decision)”], work eligibility, and other benefits as DACA recipients.

Texas and other states sued DHS over DAPA and the DACA expansion (though not DACA as originally established) for violating the APA, the Immigration and Nationality Act (INA), and the U.S. Constitution. The Court noted in Regents that:

Before the DAPA Memorandum was implemented, 26 States, led by Texas, filed suit in the Southern District of Texas. The States contended that DAPA and the DACA expansion violated the APA’s notice and comment requirement, the [INA], and the Executive’s duty under the Take Care [that the laws be faithfully executed] Clause of the Constitution. The District Court found that the States were likely to succeed on the merits of at least one of their claims and entered a nationwide preliminary injunction barring implementation of both DAPA and the DACA expansion.

The Obama administration appealed to the 5th Circuit, which upheld the district court’s injunction. The Supreme Court explained in Regents that:

[T]he Fifth Circuit affirmed the preliminary injunction ... . In opposing the injunction, the [Obama administration] argued that the DAPA Memorandum reflected an unreviewable exercise of [its] enforcement discretion. The Fifth Circuit majority disagreed. It reasoned that the deferred action described in the DAPA Memorandum was “much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.”... From this, the majority concluded that the creation of the DAPA program was not an unreviewable action “committed to agency discretion by law.”

...

The [5th Circuit then] upheld the injunction on two grounds. It first concluded the States were likely to succeed on their procedural claim that the DAPA Memorandum was a substantive rule that was required to undergo notice and comment. It then held that the APA required DAPA to be set aside because the program was “manifestly contrary” to the INA, which “expressly and carefully provides legal designations allowing defined classes” to “receive the benefits” associated with “lawful presence” and to qualify for work authorization.

The Obama administration then sought and was granted a writ of certiorari by the Supreme Court, which then affirmed the 5th Circuit’s decision by a tie vote of four to four (and thus without a written opinion).

When the Trump administration took office, DHS rescinded the DAPA Memorandum. Then, Attorney General Jeff Sessions wrote to DHS’s Acting Secretary Elaine Duke to advise her to rescind DACA as well. Sessions concluded that DACA shared the “same legal ... defects that the courts recognized as to DAPA” and was “likely” to meet the same fate. He urged her to “consider an orderly and efficient wind-down process” for DACA. The Attorney General’s letter more fully stated that:

I write to advise that [DHS] should rescind the ... DHS [DACA] Memorandum ... as well as any related memoranda or guidance.

...

DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch. The related … (DAPA) policy was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit on the basis of multiple legal grounds and then by the Supreme Court by an equally divided vote ... . Then [DHS] Secretary ... John Kelly rescinded the DAPA policy ... . Because the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA. [Emphasis added.]

As the Supreme Court described in Regents:

The next day, Duke acted on the ... advice ... . “Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings” and the “letter from the Attorney General,” she concluded that the “DACA program should be terminated.”

...

Duke then detailed how the program would be wound down: No new applications would be accepted, but DHS would entertain applications for two-year renewals from DACA recipients whose benefits were set to expire within six months. For all other DACA recipients, previously issued grants of deferred action and work authorization would not be revoked but would expire on their own terms, with no prospect for renewal.

Then came the litigation that blazed a trail to the Supreme Court. As the Court wrote in Regents:

Multiple groups of plaintiffs ... challenged her decision in [three separate U.S. District Courts]. The relevant claims are that the rescission was arbitrary and capricious in violation of the APA and that it infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause.

All three District Courts ruled for the plaintiffs, albeit at different stages of the proceedings.

…

In [two of the decisions,] the District Courts held that the equal protection claims were adequately alleged ... . Those courts also entered coextensive nationwide preliminary injunctions, based on the conclusion that the plaintiffs were likely to succeed on the merits of their claims that the rescission was arbitrary and capricious. These injunctions did not require DHS to accept new applications, but did order the agency to allow DACA recipients to “renew their enrollments.”

...

[T]he D.C. District Court took a different course. [I]t deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, holding that Acting Secretary Duke’s “conclusory statements were insufficient to explain the change in [the agency’s] view of DACA’s lawfulness.”... [It] stayed its order for 90 days to permit DHS to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.”

To satisfy the D.C. District Court’s request that DHS provide a “fuller explanation”, newly confirmed Secretary Kirstjen Nielsen signed a new memo, in which (as the Supreme Court described in Regents):

[Nielsen] explained that, “[h]aving considered the Duke memorandum,” she “decline[d] to disturb” the rescission ... . [She] articulate[d] her “understanding” of Duke’s memorandum, identifying three reasons why ... “the decision to rescind the DACA policy was, and remains, sound.”... First, she reiterated that, “as the Attorney General concluded, the DACA policy was contrary to law.”... Second, she added that, regardless, the agency had “serious doubts about [DACA’s] legality” and, for law enforcement reasons, wanted to avoid “legally questionable” policies ... . Third, she identified multiple policy reasons for rescinding DACA, including (1) the belief that any class-based immigration relief should come from Congress, not through executive non-enforcement; (2) DHS’s preference for exercising prosecutorial discretion on “a truly individualized, case-by-case basis”; and (3) the importance of “project[ing] a message” that immigration laws would be enforced against all classes and categories of aliens ... . [She] acknowledged the “asserted reliance interests” in DACA’s continuation but concluded that they did not “outweigh the questionable legality of the DACA policy and the other reasons” for the rescission.

...

The [Trump administration] asked the D. C. District Court to revise its prior order in light of the reasons provided by Secretary Nielsen, but the court declined ... [finding that] the new memorandum ... still did not provide an adequate explanation.

...

The [administration then] appealed the various District Court decisions ... . [W]hile those appeals were pending, [it] simultaneously filed three petitions for certiorari before judgement ... . [W]e granted the petitions.

DHS v. Regents of the University of California

Chief Justice John Roberts, Jr., authored the majority opinion in Regents. Roberts’ opinion first noted that “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.” The Roberts’ opinion determined that “Because the DACA program is more than a non-enforcement policy, its rescission is subject to review under the APA.” The Court then concluded that it would only consider the justification for the recission contained in Acting Secretary Duke’s original memo, since Secretary Nielsen’s subsequent memo amounted to “impermissible ‘post hoc rationalization.’” As the Court explained:

Because Secretary Nielsen chose to elaborate on the reasons for the initial rescission rather than take new administrative action, she was limited to the agency’s original reasons. … Nielsen’s reasoning bears little relationship to that of ... . Acting Secretary Duke[, who] rested the rescission on the conclusion that DACA is unlawful. Period. ... By contrast, Secretary Nielsen’s new memorandum offered three “separate and independently sufficient reasons” for the rescission, ... only the first of which is the conclusion that DACA is illegal.

Then the Court made the surprising decision that it would “not evaluate the claims challenging the explanation and correctness of the illegality conclusion [regarding DACA]. Instead we focus our attention on ... [whether] Acting Secretary Duke ‘failed to consider ... important aspect[s] of the problem’ before her [in violation of the APA].”

The Roberts opinion found that Duke had indeed failed to consider important aspects of the problem. As it explained:

• Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients [not that the Court was ruling that it was or wasn’t illegal!], that conclusion supported only “disallow[ing]” benefits ... . It did “not cast doubt” on the legality of forbearance ... . [T]he DACA Memorandum could not be rescinded in full “without any consideration whatsoever” of a forbearance-only policy.

• [Duke] entirely failed to consider [that] important aspect of the problem.”

  ...

  • That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious.

The Court noted that the lack of consideration of a forbearance-only policy was “not the [recission’s] only defect”. Acting Secretary Duke had also “failed to address whether there was ‘legitimate reliance’ on the [2012] DACA Memorandum.” The Court explained that:

• 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.’”... “It would be arbitrary and capricious to ignore such matters.”... Yet that is what the Duke Memorandum did.

• [T]he [Trump administration] does not contend that Duke considered potential reliance interests; it counters that she did not need to. In the Government’s view, shared by the lead dissent, DACA recipients have no “legally cognizable reliance interests” because the DACA Memorandum stated that the program “conferred no substantive rights” and provided benefits only in two-year increments ... . But neither the Government nor the lead dissent cites any legal authority establishing that such features automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that consideration must be undertaken by the agency in the first instance, subject to normal APA review. There was no such consideration in the Duke Memorandum. [Emphasis added.]

• [B]ecause DHS was “not writing on a blank slate,”... it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns. [Emphasis in original.]

Justice Thomas made the point that:

[I]t is inconceivable to require DHS to study reliance interests before rescinding DACA considering how the program was previously defended ... . Contemporaneous with the DACA memo, DHS stated that “DHS can terminate or renew deferred action at any time at the agency’s discretion.” ... DHS repeatedly argued in court that the 2014 memorandum was a valid exercise of prosecutorial discretion in part because deferred action created no rights on which recipients could rely ... . [B]efore this Court ... DHS reiterated that “DHS has absolute discretion to revoke deferred action unilaterally, without notice or process.” [Emphasis in original.]

Roberts’ response was that “DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the DACA Memorandum” — but it needed to have done so in the Duke memorandum.

The Court did determine that the plaintiffs-respondents had not established any “plausible equal protection claim”. It ruled in conclusion that “[t]he appropriate recourse is ... to remand to DHS so that it may consider the problem anew.”

The Feared Impact of Regents

Justice Thomas warned in his opinion that “the ripple effects of the majority’s error will be felt throughout our system of self-government”, writing that:

[T]he majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.

Without grounding its position in either the APA or precedent, the majority declares that DHS was required to overlook DACA’s obvious legal deficiencies and provide additional policy reasons and justifications before restoring the rule of law. This holding is incorrect, and it will hamstring all future agency attempts to undo actions that exceed statutory authority.

The majority’s approach will make it far more difficult to change deferred-action programs going forward, which is hardly in keeping with this Court’s own understanding that deferred action is an “exercise in administrative discretion” used for administrative “convenience.”

And Justice Alito warned in his concurrence in part/dissent in part that “the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way.”

How We Got There

Philip Rucker and Robert Costa reported at the beginning of the Trump administration in January 2017 that: “There are limits to [Senator Jeff] Sessions’s influence ... . [who] has not persuaded Trump — so far, at least — to eliminate [DACA].”

Harvard Law School Professor Benjamin Eidelson, who was co-counsel for some of the plaintiffs-respondents in Regents, provides a provocative history of President Trump’s, and his administration’s, conflicted feelings about DACA. One might take Eidelson’s saga with a grain of salt, as he bases his overview on, as he writes, “The most comprehensive account of the Trump Administration's internal decisionmaking about DACA ... Julie Hirschfeld & Michael D. Shear, Border Wars: Inside Trumps’ Assault on Immigration ... . I draw on their reporting, as well as other journalists' accounts, public statements, and materials obtained in Freedom of Information Act ... litigation.” Well, Border Wars certainly had an ax to grind. The authors, both New York Times reporters, described Republican Capitol Hill staff members (myself included) working for “restrictionist” senators and U.S. representatives in, shall we say, unflattering terms:

• What they shared, in addition to Trump’s restrictionist views about immigration, was status in Washington as political and policy outcasts. For more than a decade they had labored mostly on the fringes of the immigration debate, shunned not only by Democrats on Capitol Hill, but also by mainstream Republicans in their own party, who saw them as too strident, too unwilling to compromise, too aligned with the agenda of racist hate groups that opposed immigration at all costs. When Republicans from moderate districts wanted to compromise with Democrats on immigration, these staffers gave no quarter, putting principle over politics and earning scorn from their party leaders as they quietly blew up deal after potential deal.

• It was clear that they were doomed to remain on the fringe until someone came along who would embrace their restrictionist ideology and enable their agenda.¹

Putting principle over politics? Sacré bleu! Earning scorn from party leaders? Yeah, on occasion! But whenever the Republican House Leadership deigned to allow our bosses’ bills to go to the House floor (which wasn’t every day, or even every year), they were supported by the vast majority of Republican members. I’m not sure what stream the “mainstream ... moderate” Republicans described by Hirschfield and Shear were swimming in, but it certainly wasn’t the Republican mainstream.

Salt swallowed, Eidelson goes on:

When Donald Trump announced his run for President, he promised to end DACA “immediately.”... But ... his administration did nothing about DACA for seven months. We now know that he was caught between competing pressures, both internally and externally. Some hardliners [read: supporters of the rule of law] viewed maintaining the policy as an unacceptable departure from both the President's anti-immigrant agenda [read: seeking to make America’s immigration system further the national interest] and the rule of law ... . But many others — including, seemingly, Trump himself — did not relish the prospect of upending the lives of hundreds of thousands of blameless young people who had formed deep connections with their American communities. And so the administration dithered — at least until several Republican state attorneys general ... forced the issue by threatening to challenge [DACA] in court.

At that point, a twofold solution emerged. First, the administration would end DACA, but with a six-month delay. That deadline, the thought went, would give the administration potent leverage in negotiations with Democrats in Congress. If all went well, the President could avoid actually acting against DACA beneficiaries and, at the same time, obtain funding for a border wall ... . Second, the administration would cast the decision in legal terms, not as a policy objection to immigration relief for “Dreamers.” In part that was because the Acting [DHS] Secretary ... Elaine Duke, “did not want her name on” the policy arguments proposed by the most anti-immigrant members of the administration ... . [Additionally,] the administration's nuanced position — it would end DACA, but it supported legislation protecting the same people — made far more sense if the objection to DACA was based on legal compunctions, not immigration policy.

Imagine that, taking the “nuanced” position that policy goals should be pursued in accordance with the Constitution’s foundational principle of separation of powers! President Obama once shared this view, famously (or infamously) stating:

With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books ... . Congress passes the law. The executive branch’s job is to enforce and implement those laws ... . There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply, through executive order, ignore those congressional mandates would not conform with my appropriate role as president.

And, in an interview with Univision television, Obama said that he couldn’t just “waive away the laws that Congress put in place” and that he “doesn’t have the authority to simply ignore Congress and say, ‘We’re not going to enforce the laws that you’ve passed.’”

As Judiciary Committee Chairman Lamar Smith (my boss at the time) explained shortly after the issuance of the Napolitano DACA memo in 2012:

Ignoring Congress and the Constitution may be politically convenient for President Obama, but this huge policy shift has horrible consequences for unemployed Americans looking for jobs. It violates the president’s oath to uphold the laws of this land. It doesn’t matter how bleak poll numbers are or how low campaign coffers may be, the president of the United States cannot ignore the rule of law.

The next year, Bob Goodlatte, the new chairman of the House Judiciary Committee (and my boss at the time), conveyed great sympathy for “aliens brought here as children by their parents”. He stated that “they had no input into their parents’ decision to bring the family to the U.S. illegally. And many of them know no other home than the United States, having grown up as Americans since they were toddlers, in some instances. They surely don’t share the culpability of their parents.”

But Goodlatte also made clear (in 2015) that:

• President Obama announced one of the biggest constitutional power grabs ever by a President. He declared unilaterally that, by his own estimation, almost 5 million unlawful aliens would be free from the legal consequences of their lawless actions. Not only that, by granting them deferred action, he would bestow upon them benefits such as legal presence, work authorization, and access to the Social Security Trust Fund and the Earned Income Tax Credit.

  President Obama took these actions despite having stated over 20 times in the past that he didn’t have the constitutional power to take such steps on his own. As the Washington Post’s own “Fact Checker” concluded, “Apparently, he’s changed his mind.”

  The Constitution is clear: It is Congress’ duty to write our Nation’s laws. Yet, President Obama admitted that, “I just took an action to change the law.”

  [O]nce laws are enacted, it is the President’s responsibility to enforce them. The Constitution requires the President to take care that the laws be faithfully executed. Yet, the very integrity of our immigration laws is now in question.

• [T]elling entire classes of millions of unlawful aliens that they face no possibility of being removed is not prosecutorial discretion. It is simply an abdication of the executive branch’s responsibility to enforce the laws.

• President Obama’s actions ... are a clear violation of his constitutional responsibility to faithfully execute the laws.

• By assuming legislative power, the Obama administration is driving full speed ahead to a constitutional crisis, tilting the scales of our three-branch government in his favor and threatening to unravel our system of checks and balances. This Administration has entered the realm of rewriting the laws when it can’t convince Congress to change them.

In March 2016, the House of Representatives passed a resolution by a vote of 234-186 authorizing House Speaker Paul Ryan “to appear as amicus curiae on behalf of the House in the Supreme Court in the [DAPA litigation] and to file a brief ... that [the Obama administration] acted in a manner that is not consistent with their duties under the Constitution and laws of the United States.” The House Rules Committee’s report stated that:

• Contrary to its duty to faithfully execute the laws, the [Obama] Administration has acted unilaterally to rewrite the Nation’s immigration laws. These actions undermine the framework of the Constitution, which separates power between the branches to best protect liberty. The Constitution provides that, “All legislative Powers *** shall be vested in a Congress of the United States,” including authority “to establish a uniform rule of naturalization.”

• The questions presented in this case are extraordinarily significant to the House of Representatives. In particular, [it] raises issues relating to the limits on Executive discretion not to enforce laws enacted by Congress, as well as the point at which the exercise of such discretion turns into lawmaking, thereby infringing on Congress’s Article I legislative powers. It is precisely because of these constitutional questions pending before the Supreme Court that the House will take the rare step to consider this resolution authorizing the Speaker to appear as amicus curiae on behalf of the House of Representatives in this important litigation.

On the House floor, Speaker Ryan himself argued that:

I am asking the whole House to go on the record, as an institution. I recognize that this is a very extraordinary step. I feel it is very necessary, though. In fact, I believe this is vital. This is not a question of whether or not we are for or against any certain policy. Members who are making immigration policy arguments are missing the entire point here. This comes down to a much more fundamental question. It is about the integrity of our Constitution.

Article I. Article I states that all legislative powers are vested in Congress.

Article II. Article II states that the President “shall take care that the laws be faithfully executed.”

Those lines, that separation of powers, could not be clearer.

...

In recent years, the executive branch has been blurring these boundaries to the point of absolutely overstepping them altogether. As a result, bureaucrats responsible for executing the laws, as written, are now writing the laws at their whim. This just doesn’t throw our checks and balances off-balance, it creates a fourth branch of government ... . that operates with little or no accountability whatsoever. Most profoundly, this means that we the people, through our elected representatives, are not drafting the laws that we live under ... . This fourth branch of government is a danger to self-government itself ... . [I]f we are going to maintain the principle of self- government … then the legislative branch needs to be writing our laws, not the executive branch, and certainly not a branch of unelected, unaccountable bureaucrats. This is what is happening. And it is not just this administration, although this administration has taken it to whole new levels.

Thus, it was hardly just “extremists” in the Trump administration who were profoundly troubled by the constitutional degradation caused by the implementation of DACA by executive fiat.

In any event, I’ll let Eidelson continue:

[P]erhaps most importantly, the legal rationale relieved not just Duke, but Trump as well, of personal responsibility for an unpopular choice.

...

[President Trump] “detested the press coverage of his impending decision,” which “portrayed ending DACA as a coldhearted, shortsighted move.” He “could not stand the thought of being seen as mean to defenseless kids.”

...

The White House's buck-passing strategy ... was, on the whole, remarkably uniform. As the Press Secretary put it: “The President made the best decision in light of the fact that the system was set up by the Obama administration in clear violation of federal law.” After all, the White House argued, the administration had “two, and only two, real options to choose from: the likely sudden cancellation of the program by a judge, or an orderly wind-down that preserves the rule of law and returns the question to the legislative branch where it belongs.” Naturally, then, “[t]he President chose the latter of the two options.”... “The legislative branch, not the executive branch, writes these laws[]” ... [and] under existing law, the policy “c[ould] not be successfully defended in court.”... [A]s Trump insistently tweeted, Congress could and should “do [its] job — DACA” before the rescission took effect.

...

Trump [argued] that he “doesn't have the right to do this” without “go[ing] through Congress.” And when the new DHS Secretary, Kirstjen Nielsen, was pressured in a Senate hearing to extend the “wind down” period, she “stress[ed] how strong[ly] [she] fe[lt] about finding a permanent solution for this population” but reiterated that neither she nor the President had the legal authority to change course. “The Attorney General has made it clear that he believes such exercise is unconstitutional,” she said. “It's for Congress to fix.”

As noted earlier, the U.S. District Court for the District of Columbia then requested a more fulsome explanation from Nielsen. As Eidelson wrote, she “asserted that the lenience represented by DACA encouraged unlawful immigration — one of the same arguments purposely omitted from the Duke Memorandum nine months earlier. And Nielsen clearly stated that she would rescind DACA as a matter of discretion, ‘whether the courts would ultimately uphold it or not.’”

However, as Eidelson pointed out:

[T]he administration essentially ignored its new reasoning outside of court. When the district court reaffirmed its original decision, for example, Attorney General Sessions issued a statement blasting the court. But he made no mention of the Nielsen Memorandum or its policy rationales — the central issues in the ruling he attacked. Rather, he reiterated that “[t]he Trump Administration's action to withdraw [DACA] simply reestablished the legal policies consistent with the law,” as it was the administration's “duty to do.” Nor did Nielsen herself mention any policy arguments for rescinding DACA when she testified before Congress a few months later. Instead, she predicted that “ultimately the judicial branch will reach the same conclusion that DHS, DOJ, and the White House reached: DACA was an unlawful use of executive authority.”

The Eidelson Hypothesis: Roberts’ Reaction to “Buck Passing”

Eidelson argued that this “context” he provided was “critical to understanding the [Supreme Court’s] rejection of the Nielsen Memorandum on the ground that it was a post hoc rationalization; and the [Court’s] invalidation of the original rescission decision for failing to acknowledge the scope of the administration's actual discretion.”

Roberts noted in Regents that “[t]he Government ... protests that requiring a new decision before considering Nielsen’s new justifications would be ‘an idle and useless formality.’” But he then argued that:

Procedural requirements can often seem such. But here the rule serves important values of administrative law. Requiring a new decision before considering new reasons promotes “agency accountability,” ... by ensuring that parties and the public can respond fully and in a timely manner to an agency’s exercise of authority ... . Permitting agencies to invoke belated justifications ... can upset “the orderly functioning of the process of review,” forcing both litigants and courts to chase a moving target. Each of these values would be markedly undermined were we to allow DHS to rely on reasons offered nine months after Duke announced the rescission.

Eidelson opined that:

• Without the political context [I] recounted above ... [Roberts’] point might seem opaque or niggling. But with that context in view, it is clear and forceful. When the administration had the public's attention ... it was adamant that it had no discretion over DACA's fate. To allow the administration to justify the same action as an exercise of discretion — without triggering the new public reckoning that could accompany a new rescission action — would deny the public a full opportunity to hold the administration accountable for what would have proved, in the end, the decisive reasons. Seen in this light, [what was important to Roberts was] the government's candidly subjecting its important choices to public scrutiny.

• Regents suggests that allowing the agency to achieve that result without the political consequences attending an actual second decision could well be its own form of prejudice. ... The inquiry has to account as well for the possibility that the political costs of actually making a fresh decision on that ground might be prohibitive.

• [T]he key to understanding th[e] holding [that DHS failed to consider important aspects of the problem] is the theme of discretion and responsibility that runs through Chief Justice Roberts's explanation of how and why Duke fell short. His focus was not really her failure to consider factors bearing on her choice about DACA's fate, or even her failure to explain how she considered those factors, but the particular reason for those two failures: the notion that she had no real choices to make. And context and logic alike suggest that this notion was problematic largely because it deflected political accountability for an unpopular decision. [Emphasis in original.]

Returning to the heart of Roberts’ opinion, he wrote that:

[T]he 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.”... 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.

That reasoning repeated the error we identified in one of our leading modern administrative law cases, Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. There, the National Highway Traffic Safety Administration (NHTSA) promulgated a requirement that motor vehicles produced after 1982 be equipped with one of two passive restraints: airbags or automatic seatbelts ... . Four years later, before the requirement went into effect, NHTSA concluded that automatic seatbelts, the restraint of choice for most manufacturers, would not provide effective protection. Based on that premise, NHTSA rescinded the passive restraint requirement in full.

...

We concluded that the total rescission was arbitrary and capricious. As we explained, NHTSA’s justification supported only “disallow[ing] compliance by means of” automatic seatbelts ... . It did “not cast doubt” on the “efficacy of airbag technology” or upon “the need for a passive restraint standard.” ... Given NHTSA’s prior judgment that “airbags are an effective and cost-beneficial lifesaving technology,” we held that “the mandatory passive restraint rule [could] not be abandoned without any consideration whatsoever of an airbags-only requirement.”

...

While the factual setting is different here, the error is the same. Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only “disallow[ing]” benefits ... . It did “not cast doubt” on the legality of forbearance or upon DHS’s original reasons for extending forbearance to childhood arrivals ... . Thus, given DHS’s earlier judgment that forbearance is “especially justified” for “productive young people” who were brought here as children and “know only this country as home,” ... the DACA Memorandum could not be rescinded in full “without any consideration whatsoever” of a forbearance-only policy.

Roberts emphasized that having to consider reliance interests did not necessarily mean that the administration would have no choice but to accommodate them:

• [E]ven if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider. DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it.

  DHS has considerable flexibility in carrying out its responsibility.

• The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination ... . But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests.

In Eidelson’s estimation, “Duke ran afoul of State Farm because her unduly narrow conception of her legal authority short-circuited any apparent reckoning with the costs and benefits of those options.” He pondered “Who knows what the administration might have done if Nielsen instead had to defend the six-month deadline as her (or Trump's) favored immigration policy, or as a calculated attempt to launch a game of immigration-reform chicken?”

OK, it is tendentious in the extreme to characterize seeking to establish a favorable negotiating position as “immigration-reform chicken”. Call it part and parcel of legislative negotiating and compromise, logrolling, building a legislative coalition — that is how Congress works, or rather, how Congress should work. As David Davenport has written:

It is not difficult to identify “lost arts” — things we used to do but do not do any longer — in Washington, DC: civility, bipartisanship, courage, just to name a few. But one lost art underlies the others and has led to the inability of Congress to carry out its most basic responsibilities — pass a budget or keep the government open. The most fundamental lost art of all is the lost art of compromise.

Judiciary Committee Chairman Bob Goodlatte offered such a compromise in 2018. He introduced H.R. 4760, legislation that would have granted DACA recipients a temporary but renewable legal status allowing them to reside legally in the U.S., work, be able to visit their home countries and return, and be eligible for legal permanent residence on the same basis as any other prospective immigrant already in the U.S. or residing anywhere else in the world. In return, Mr. Goodlatte’s legislation would have reoriented our legal immigration system toward skilled immigrants and would have instituted immigration enforcement initiatives designed to ensure that the country wouldn’t find itself in the same predicament a decade hence. Among these measures were asylum and visa security reform, mandatory E-Verify (a currently voluntary electronic employment eligibility verification system), measures to hold sanctuary jurisdictions accountable, and critically needed tools to detain and remove criminal and dangerous aliens.

Goodlatte had earlier explained in 2013 that:

[W]e should look at whether we as a Nation should allow this group of young people to stay in the U.S. legally. And while this is an important piece of immigration reform, it too must be accomplished effectively and responsibly to ensure that several years from now Congress is not once again being asked to pass another piece of legislation dealing with the immigration status of a new group of young people brought here by their parents.

Not one House Democrat voted for Goodlatte’s bill when it reached the House floor. As I have written, it “failed to pass because 1) House Republican Leadership insisted that [Republican] ‘moderates’ be given a watered-down alternative bill (H.R. 6136) to vote for as political cover and 2) the Trump administration provided tepid support.”

In any event, Eidelson continues with his analysis:

• [E]ven if the administration would ultimately have chosen exactly the same policy ... forcing [it] to openly exercise its discretion would at least ensure the public a full opportunity to respond to that choice.

  ...

  [Roberts] framed his entire APA discussion with a quotation: “The APA,” he said, “‘sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.’” Read in that context, the majority's observation that Duke “did not appear to appreciate” her actual discretion seems just a more politic way of faulting the administration for failing to own its choice. [Emphasis in original.]

• Roberts's broader record is to the same effect: He had shown no appetite for vacating an agency's decision when the agency's ultimate preference was both permissible and clear.

  So what made this case different? Some will say that it was Roberts's desire “to avoid a politically controversial ... decision[]”[quoting Justice Thomas’ opinion.] But the evident concern that the Trump Administration was evading political accountability does the same explanatory work at least as well ... . [I]f Duke had simply owned the administration's choices — but then offered vacuous explanations for them — it is easy to imagine Roberts upholding her reasoning as good enough for government work.

The Trump administration, seeming to anticipate Eidelson’s claims, argued in its brief for the petitioners, seeking to obtain a grant of a writ of certiorari from the Supreme Court, that:

[F]ree-floating concerns about [political] accountability have no grounding in either the text of [the APA] or the precedent construing it ... . The Executive Branch is to be held accountable for those discretionary decisions through democratic channels. For instance, Congress may respond to, and accept or override, the Executive’s reasons for adopting or rescinding a nonenforcement policy.

Well, there may be precedent now!

Eidelson continued:

[T]he government argued throughout the DACA-rescission litigation that its legal analysis should be upheld unless it amounted to “the type of ‘clear error of judgment’ that would make it arbitrary and capricious”... . The distinct concern that an agency's disavowal of authority sows public confusion about who is to blame for an unpopular result, however, gives courts a distinct and powerful reason to ensure that such a convenient explanation is not just reasonable, but correct.

Of course, Roberts declined to decide whether the unlawfulness of DACA was either reasonable or correct.

Eidelson concluded that:

• [A]t least relative to the deferential form of arbitrariness review that Roberts has otherwise embraced, Regents seems to have imposed just such a penalty in rejecting the administration's buck-passing explanation for DACA's rescission.

• [T]here is good reason to think that Trump's ability to avoid taking responsibility for the decision was material to the administration's bottom-line choice of approach — whether because of feared electoral consequences or simply because of the attitudes that Trump wanted others to hold toward him. And indeed, once the Supreme Court indicated in Regents that no legal constraint “compelled DHS to abandon” DACA's core policy of enforcement forbearance (and that the question of how to wind down the policy would be open regardless), Trump “flail[ed]” over how to proceed. He “want[ed] to energize immigration hardliners in [his] base,” but he also wanted “to win over the swing voters, evangelicals and Hispanics who support Dreamers.” Ultimately, the administration compromised by leaving the policy in place, on an “interim” basis, for all existing beneficiaries. That is a profound shift from the original decision to rescind DACA in full ... . [I]t is ... plausible that the Court's accountability-forcing intervention worked: Faced with the need to publicly own his choice, Trump made a different one.

Is the “Forbearance” Component of DACA Unlawful in and of Itself?

The Litigating States, the District Court for the Southern District of Texas, the 5th Circuit, and the Trump Administration All Failed to Specify Whether Forbearance Itself Is Unlawful

Chief Justice Roberts’ opinion has to be taken seriously in its conclusion that even if, for the sake of argument, the benefits flowing from deferred action are unlawful (at least in the context of DACA), it doesn’t necessarily follow that DACA’s “forbearance” component is also unlawful. As I alluded to earlier, the states challenging DAPA, the District Court for the Southern District of Texas and the 5th Circuit in ruling against DAPA, and the Trump administration in defending its termination of DACA, all failed to clearly stake out, let alone persuasively advocate for, the position that DAPA/DACA’s “forbearance” alone is unlawful. It is not even clear to me whether they in their own minds considered forbearance alone to be unlawful. Had they argued otherwise, Justice Roberts would have been deprived of one of the major arguments he relied upon in finding DHS’s termination of DACA to be procedurally deficient. Of course, he may have still found it to be so, but he would have had to find a different basis.

In their complaint, the states posited that:

• In accordance with ... President[ Obama’s] unilateral exercise of lawmaking, his [DHS] Secretary ... issued a directive that purports to legalize the presence of approximately 40% of the known undocumented-immigrant population, and affords them legal rights and benefits.

• At the most basic level, the Directive is a promise to openly tolerate entire classes of undocumented immigrants. In addition, the Directive offers affirmative legal inducements to stay, such as work authorization and the tolling of unlawful presence. White House officials also have stated that the beneficiaries of deferred action are eligible for Social Security and Medicare. The removal of the deportation threat, combined with the incentives to stay, will make remaining in the United States far more attractive for the affected classes of undocumented immigrants.

• The DHS Directive purports to create legal rights for millions of undocumented immigrants. And it does so by rewriting the immigration laws and contradicting the priorities adopted by Congress.

The complaint’s text nowhere makes clear whether forbearance itself made DACA unlawful.

The original district court decision in Texas v. U.S. enjoining DAPA and the expansion of DACA was equally opaque:

• [T]he DAPA Memorandum confers the right to be legally present in the United States and enables its beneficiaries to receive other benefits.

• [The Memorandum] certainly provides a legal benefit in the form of legal presence (plus all that it entails).

• DAPA does not simply constitute inadequate enforcement; it is an announced program of non-enforcement of the law that contradicts Congress' statutory goals. Unlike the Government's position in Texas v. U.S., the Government here is “doing nothing to enforce” the removal laws against a class of millions of individuals (and is additionally providing those individuals legal presence and benefits). [Emphasis in original.]

• The DAPA program ... . [was] instituted to give a certain, newly-adopted class of 4.3 million illegal immigrants not only “legal presence” in the United States, but also the right to work legally and the right to receive a myriad of governmental benefits to which they would not otherwise be entitled.

• The DHS has adopted a new rule that substantially changes both the status and employability of millions.

• This temporary injunction enjoins the implementation of the DAPA program that awards legal presence and additional benefits.

The 5th Circuit’s decision on appeal in Texas v. U.S. was just as murky:

• DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits.

• Even with “special deference” to the Secretary, the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.

• [T]he states' claims ... stem from his decision to grant lawful presence to millions of illegal aliens on a class-wide basis.

• Deferred action ... is much more than nonenforcement: It would affirmatively confer “lawful presence” and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger ... eligibility for federal benefits — for example, under ... the Social Security Act — and state benefits — for example, driver's licenses and unemployment insurance — that would not otherwise be available to illegal aliens.

The Trump administration was similarly nubilous. In its filings with the Supreme Court, it made statements that continually failed to break down DACA’s unlawfulness, such as “DHS’s conclusion is correct: DACA is unlawful” (Petition for a Writ of Certiorari Before Judgment), “the rescission is supported by DHS’s correct determination that the DACA policy is unlawful ... [and] it was utterly reasonable for DHS to rely on the Fifth Circuit’s detailed analysis of the closely related DAPA and expanded DACA policies” (reply brief for the petitioners), and “the DACA policy .... presumptively makes a class of more than a million illegal aliens ... eligible for reprieve from removal that the INA does not afford .... [a]nd that forbearance ... in turn makes DACA recipients eligible to obtain affirmative assistance.” (brief for the petitioners)

Further, Solicitor General Noel Francisco hedged when asked as to whether forbearance alone violates the INA. During oral argument at the Supreme Court, he had the following exchange with Justice Ruth Bader Ginsburg:

[T]he DACA policy .... presumptively makes a class of more than a million illegal aliens ... eligible for reprieve from removal that the INA does not afford. And that forbearance, pursuant to longstanding regulations, in turn makes DACA recipients eligible to obtain affirmative assistance — e.g., work authorization — to aid them in their continuing unlawful presence.

Solicitor General Francisco: DACA ... actively facilitates violations of the law by providing advance forbearance, coupling it with affirmative benefits like work authorization and Social Security benefits, doing it on a categorical basis.

...

Justice Ginsberg: [F]orbearance would be okay if ... there weren't attendant benefits? [W]e're not going to immediately deport the Dreamers, period? Francisco: I think that would be ... if you provided just the advanced forbearance, I think that would be a lot closer of a question, but, here, it's a lot easier because you're coupling that with work authorization.

I appreciate Justice Ginsburg for asking Solicitor General Francisco point blank, but all he could bring himself to do was to call the issue of the lawfulness of forbearance “a lot closer of a question”.

Roberts Relies on the States’, the District Court’s, the 5th Circuit’s and the Trump Administration’s Failure to Specify Whether Forbearance Itself Is Unlawful

Chief Justice Roberts concluded that:

• The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. [B]y virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare ... . Unlike an agency’s refusal to take requested enforcement action, access to these types of benefits is an interest “courts often are called upon to protect.”

• The Attorney General concluded that “the DACA policy has the same legal ... defects that the courts recognized as to DAPA.”... So, to understand those defects, we look to the Fifth Circuit, the highest court to offer a reasoned opinion on the legality of DAPA. That court described the “core” issue before it as the “Secretary’s decision” to grant “eligibility for benefits” — including work authorization, Social Security, and Medicare — to unauthorized aliens on “a class-wide basis ... . The Fifth Circuit’s focus on these benefits was central to every stage of its analysis [including standing, zone of interest, applicability of the INA’s provision limiting the federal courts’ ability to review orders of removal, APA notice and comment, and substantive APA considerations].

• [The Fifth Circuit] ultimately held that DAPA was “manifestly contrary to the INA” precisely because it “would make 4.3 million otherwise removable aliens” eligible for work authorization and public benefits.

To Roberts, the 5th Circuit was talking about DACA’s benefits when it found the program to be unlawful, and quite possibly DACA’s benefits were unlawful. But the Trump administration had asserted to the Supreme Court in its Reply Brief for the Petitioners that DHS was “not [even] required to consider whether DACA’s illegality could be addressed by separating deferred action ... from at least some of the benefits it triggers.” It then stated that:

Deferred action coupled with the associated benefits are the two legs upon which the DACA policy stands ... . [I]t is largely the eligibility for benefits triggered by deferred action that allows DACA recipients to “come out of the shadows and become productive members of their communities.”... It was not arbitrary and capricious for DHS to view deferred action and its collateral benefits as importantly linked.

The chief justice responded “Perhaps.” I get the distinct sense that that is the closest the chief justice will ever get to uttering the retort “Make my day” in an opinion. He then explained that:

But that response misses the point. The fact that there may be a valid reason not to separate deferred action from benefits does not establish that DHS considered that option or that such consideration was unnecessary.

The lead dissent acknowledges that forbearance and benefits are legally distinct and can be decoupled ... . It contends, however, that we should not “dissect” agency action “piece by piece.”... The dissent instead rests on the Attorney General’s legal determination — which considered only benefits — “to supply the ‘reasoned analysis’” to support rescission of both benefits and forbearance.

What Justice Thomas said in his “lead dissent” was that the majority “cites no authority for the proposition that arbitrary and capricious review requires an agency to dissect an unlawful program piece by piece, scrutinizing each separate element to determine whether it would independently violate the law, rather than just to rescind the entire program.” (Emphasis in original.)

Roberts went on:

• But State Farm teaches that when an agency rescinds a prior policy its reasoned analysis must consider the “alternative[s]” that are “within the ambit of the existing [policy].”... But the rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits. Duke “entirely failed to consider [that] important aspect of the problem.”

  …

  That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious.

• The three-page memorandum that established DACA is devoted entirely to forbearance, save for one sentence directing USCIS to “determine whether [DACA recipients] qualify for work authorization.”... The benefits associated with DACA flow from a separate regulation ... . Thus, DHS could have addressed the Attorney General’s determination that such benefits were impermissible under the INA by amending [that regulation] to exclude DACA recipients from those benefits without rescinding the DACA Memorandum and the forbearance policy it established. But Duke’s rescission memo shows no cognizance of this possibility.

It is hard to fault Roberts for rapping DHS’s knuckles for not even considering retaining forbearance as “an important aspect of the problem” and in order to address “reliance interests”.

Roberts relied on the fact that no litigants had claimed that DACA’s forbearance was unlawful to allow him conclude that the Trump administration had neither properly considered the reliance of DACA recipients on forbearance nor properly considered the alternative of simply terminating the benefits component of DACA while leaving forbearance in place. If not a slam dunk, it was an eminently reasonable conclusion to draw.

Thomas wrote in his opinion that:

[R]eliance interests are irrelevant when assessing whether to rescind an action that the agency lacked statutory authority to take. No amount of reliance could ever justify continuing a program that allows DHS to wield power that neither Congress nor the Constitution gave it ... . DHS would simply be engaging in yet another exercise of unlawful power if it used reliance interests to justify continuing the initially unlawful program, and a court would be obligated to set aside that action.

Roberts responded that: “The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination ... . But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests.”

Contrary to Thomas, if part of a regulatory program is lawful and part unlawful, and program beneficiaries have developed a reliance interest in the program, it would seem that the agency should 1) consider such reliance interests in deciding how to structure a termination, and 2) make a reasoned argument as to why the lawful component should be terminated along with the unlawful component. Thomas had actually sketched out a possible agency response when he wrote in a footnote that:

[I]t is far from clear that the Department could separate DACA’s “forbearance component” from the major benefits it conferred without running into yet another APA problem. The majority points to the fact that ... [Obamacare] regulations exclude those receiving deferred action through DACA from coverage ... . But ... [t]hose regulations were promulgated before “anyone with deferred action under the DACA process applie[d]” for those benefits ... . By contrast, DACA recipients have been eligible for and have received Medicare, Social Security, and work authorization for years. DHS therefore is not writing on a blank slate. Under the majority’s rule, DHS would need to amend all relevant regulations and explain why all recipients of deferred action who have previously received such benefits may no longer receive them. Alternatively and perhaps more problematically, it would need to provide a reason why other recipients of deferred action should continue to qualify, while DACA recipients should not. It thus seems highly likely that the majority’s proposed course of action would be subject to serious arbitrary and capricious challenges.

If the Trump administration had further developed this argument, it might have been very persuasive. But only Justice Thomas thought of it.

Yes, Virginia, Forbearance Is Unlawful

Lest the reader draw the wrong conclusion, I firmly believe that the forbearance component of DAPA and DACA is unlawful.

I should first note that deferred action is not based on any specific statutory authority (though in some cases Congress has provided that certain groups of aliens shall be eligible for deferred action).²

As far back as Secretary Napolitano's 2012 DACA memo, the Obama administration stated that the goal of DACA was “to prevent [these] low priority individuals from being removed from the United States”. That is quite far afield from simply diverting resources to higher priorities. The administration was affirmatively proclaiming that a duly enacted law would not (and should not) be enforced against a class of violators even were the administration to be blessed with theoretically unlimited resources.

The district court noted that programs such as DAPA and DACA are never needed simply for the purpose of a law enforcement agency’s priority-setting:

One could argue that [DAPA] also benefits the DHS as it decides who to remove and where to concentrate their efforts, but the DHS did not need DAPA to do this. It could have done this merely by concentrating on its other prosecutorial priorities. Instead, it has created an entirely new bureaucracy just to handle DAPA applications.

Precisely.

Unfortunately, Roberts confused deferred action and forbearance with simple priority-setting, the decision to “decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation”. So did the Court in its 1999 decision in Reno v. American-Arab Anti-Discrimination Committee (unfortunately relying on the Immigration law and Procedure treatise³).

There is a profound difference between, on the one hand, declining to devote resources to institute removal proceedings against a particular alien and, on the other hand, formally notifying aliens that the government promises to ignore their unlawful conduct. As the Trump administration pointed out in its brief for the petitioners:

• [I]nforming roughly 1.7 million aliens that they may continue violating federal law without fear of enforcement — while establishing a procedure to make them eligible for additional benefits — goes well beyond strategically directing the agency’s resources to the highest priority violators. It instead deploys those resources on a massive scale in a manner that will undermine the deterrent effect of federal law by facilitating its continuing violation.

• [A]t most, that justifies a decision not to deploy limited resources to remove low-priority targets ... . [I]t does not justify deploying those limited resources in a manner that facilitates ongoing violation of federal law by a massive number of aliens. There is an obvious difference between not pursuing lower-priority offenses ... and affirmatively assisting lower-priority offenders to persist in ongoing illegal activity.

The states’ complaint had also made this point, that one of the “important differences between” DAPA/DACA “and exercises of enforcement discretion” is that “deferred action is not merely a “decision not to prosecute an individual for past unlawful conduct”, rather it is “a decision to openly tolerate an undocumented alien’s continued presence in the United States”.

The complaint cited the Obama Justice Department’s 2014 Office of Legal Counsel memo: “The Department of Homeland Security's Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others”, which had concluded that:

Deferred action ... differs in at least three respects from more familiar and widespread exercises of enforcement discretion. First, unlike ... the paradigmatic exercise of prosecutorial discretion in a criminal case, the conferral of deferred action does not represent a decision not to prosecute an individual for past unlawful conduct; it instead represents a decision to openly tolerate an undocumented alien's continued presence in the United States for a fixed period (subject to revocation at the agency's discretion). Second, unlike most exercises of enforcement discretion, deferred action carries with it benefits in addition to nonenforcement itself; specifically, the ability to seek employment authorization and suspension of unlawful presence ... . Third, class-based deferred action programs ... do not merely enable individual immigration officials to select deserving beneficiaries from among those aliens who have been identified or apprehended for possible removal — as is the case with ad hoc deferred action —but rather set forth certain threshold eligibility criteria and then invite individuals who satisfy these criteria to apply for deferred action status.

Now, OLC went on to nonetheless conclude that:

While these features of deferred action are somewhat unusual among exercises of enforcement discretion, the differences between deferred action and other exercises of enforcement discretion are less significant than they might initially appear. The first feature — the toleration of an alien's continued unlawful presence — is an inevitable element of almost any exercise of discretion in immigration enforcement. Any decision not to remove an unlawfully present alien-even through an exercise of routine enforcement discretion — necessarily carries with it a tacit acknowledgment that the alien will continue to be present in the United States without legal status. Deferred action arguably goes beyond such tacit acknowledgment by expressly communicating to the alien that his or her unlawful presence will be tolerated for a prescribed period of time. This difference is not, in our view, insignificant. But neither does it fundamentally transform deferred action into something other than an exercise of enforcement discretion. [Emphasis added.]

Yes, indeed, it does, because of the “observer effect”. As the saying goes in quantum mechanics, “the process of observing a particle changes the way the particle behaves”. In the more rarefied realm of Chief Justice Roberts’ APA jurisprudence, “expressly communicating” to an alien gives the alien the very reliance interest upon which DHS’s termination of DACA was invalidated! So, it is very much more than simply an exercise in enforcement discretion. By notifying the alien of the decision, even if couched in terms of DACA beneficiaries receiving no substantive rights, the foundation for reliance has been established.

OLC then argued that:

With respect to the second feature, the additional benefits deferred action confers — the ability to apply for work authorization and the tolling of unlawful presence — do not depend on background principles of agency discretion under DHS's general immigration authorities or the Take Care Clause at all, but rather depend on independent and more specific statutory authority rooted in the text of the INA.

Nowhere in the INA does it say that aliens granted deferred action should be considered lawfully present, or should be eligible for work authorization or federal public benefits.

OLC went on to state that:

The Secretary’s authority to suspend the accrual of unlawful presence of deferred action recipients is ... grounded in the INA. The relevant statutory provision treats an alien as “unlawfully present” for purposes of [the “three and ten year bars” to admissibility for aliens who had been unlawfully present in the U.S. for a certain period of time] if he “is present in the United States after the expiration of the period of stay authorized by the Attorney General.” ... That language contemplates that the Attorney General (and now the DHS Secretary) may authorize an alien to stay in the United States without accruing unlawful presence ... . And DHS regulations and policy guidance interpret a “period of stay authorized by the Attorney General” to include periods during which an alien has been granted deferred action.

First, the “relevant statutory provision” laying out the three- and 10-year bars explicitly states that “[f]or purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” (Emphasis added.) The definition does not apply in other contexts. Second, Congress was referring to the “period ... authorized” at the time an alien entered the U.S. or changed status or received an extension of status. It was not referring to a grant of deferred action. As the bars’ creator, U.S. Representative Elton Gallegly, explained, their purpose is to “serve as a strong encouragement for illegal immigrants — both persons who overstayed their visa and those who crossed the border illegally — to return to their native countries and re-enter through legal channels.” Third, misguided DHS regulations and policy guidance are not the INA.

OLC continued:

The final unusual feature of deferred action programs is particular to class-based programs. The breadth of such programs, in combination with the first two features of deferred action, may raise particular concerns about whether immigration officials have undertaken to substantively change the statutory removal system rather than simply adapting its application to individual circumstances. But the salient feature of class-based programs — the establishment of an affirmative application process with threshold eligibility criteria — does not in and of itself cross the line between executing the law and rewriting it. Although every classwide deferred action program that has been implemented to date has established certain threshold eligibility criteria, each program has also left room for case-by case determinations, giving immigration officials discretion to deny applications even if the applicant fulfills all of the program criteria ... . The guarantee of individualized, case-by-case review helps avoid potential concerns that, in establishing such eligibility criteria, the Executive is attempting to rewrite the law by defining new categories of aliens who are automatically entitled to particular immigration relief. [Emphasis added.]

But, as the district court found, DACA demonstrated only a pretense of individualized case-by-case review, and thus DAPA likely also demonstrated only such a pretense:

• Despite the DAPA Memorandum’s use of phrases such as “case-by-case basis” and “discretion,” it is clear from the record that the only discretion that has been or will be exercised is that already exercised by Secretary Johnson in enacting the DAPA program and establishing the criteria therein. That criteria is binding. At a minimum, the memorandum “severely restricts” any discretion that Defendants argue exists. It ensures that “officers will be provided with specific eligibility criteria for deferred action.”... [T]he “Operating Procedures” for implementation of DACA contains nearly 150 pages of specific instructions for granting or denying deferred action to applicants ... . With that criteria set, from the President down to the individual USCIS employees actually processing the applications, discretion is virtually extinguished. [Emphasis in original.]

  ...

  The DAPA Memorandum ... imposes specific, detailed and immediate obligations upon DHS personnel — both in its substantive instructions and in the manner in which those instructions are carried out. Nothing about DAPA “genuinely leaves the agency and its [employees] free to exercise discretion.” In this case, actions speak louder than words.

• Defendants argue that officers retain the ability to exercise discretion on an individualized basis in reviewing DAPA applications as evidenced by the last factor listed in DAPA's criteria (“present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate”). Evidence of DACA's approval rate, however, persuades the Court that this “factor” is merely pretext. [T]here is every indication ... that DAPA will be implemented in the same fashion as DACA. No DACA application that has met the criteria has been denied based on an exercise of individualized discretion ... . [I]t is clear that only 1-6% of applications have been denied at all, and all were denied for failure to meet the criteria (or “rejected” for technical ... errors ...) or for fraud.

• The Court in oral argument specifically asked for evidence of individuals who had been denied for reasons other than not meeting the criteria or technical errors with the form and/or filing. Except for fraud, which always disqualifies someone from any program, the Government did not provide that evidence.

Is Unlawfulness Enough?

OK, but what if the states, the district court, the 5th Circuit and the Trump administration had clearly contended that DACA’s forbearance component was unlawful? Would Chief Justice Roberts have ruled that cognizable reliance interests still stemmed from forbearance even if he himself had found it unlawful or assumed it for the sake of argument that it was unlawful?

Roberts Decides Not to Decide

Roberts explicitly decided not to decide whether DACA (or any component of it) was unlawful:

[Respondents] claim[] that the Duke Memorandum does not adequately explain the conclusion that DACA is unlawful, and that this conclusion is, in any event, wrong. While those arguments carried the day in the lower courts, in our view they overlook an important constraint on Acting Secretary Duke’s decisionmaking authority — she was bound by the Attorney General’s legal determination.

The same statutory provision that establishes the [DHS] Secretary[’s] authority to administer and enforce immigration laws limits that authority, specifying that, with respect to “all questions of law”, the determinations of the Attorney General “shall be controlling.” ... [R]espondents never addressed whether or how this unique statutory provision might affect our review. They did not discuss whether Duke was required to explain a legal conclusion that was not hers to make. Nor did they discuss whether the current suits challenging Duke’s rescission decision ... . are proper vehicles for attacking the Attorney General’s legal conclusion.

Because of these gaps in respondents’ briefing, we do not evaluate the claims challenging the explanation and correctness of the illegality conclusion. [Emphasis added.]

Wait one New York minute! If this gap in respondents’ briefing was such a crucial issue for the Court, why did the Court not it pose it as one of the questions presented in the grant of certiorari? Alternatively, why did the Court not remand the case so the parties could submit supplemental briefs addressing the issue? Alternatively, why did Chief Justice Roberts not just raise the issue during oral argument? After all, the issue had come up! Theodore Olson, counsel on behalf of private plaintiffs-respondents, told the Court that Secretary Nielsen “was bound by the Attorney General’s decision” and that her memo “was not an independent decision. .. . [S]he was bound just as the earlier administrator ... was because the Attorney General said this is illegal.” And Michael Monan, solicitor general for San Francisco, who was counsel on behalf of the state respondents, told the Court that “it may be a difficult line to draw in the general case, but, in this case ... it is an easy line to draw because we know that this decision was founded on a binding legal determination by the Attorney General that they could not continue this policy.”

Now, it did not help that General Francisco kept emphasizing to the Court during oral argument that it needn’t bother to decide whether DACA was illegal:

• I don't think you have to decide ultimately whether DACA is legal or illegal because I think the other reasons we've given are more than sufficient to justify the rescission [of DACA], both our serious doubts about its legality, as well as our general opposition to broad-based non-enforcement policies.

• I'm saying you don't really have to address this issue because we think all of the other ... . reasons are more than sufficient.

• I don't think this is an issue you need to ultimately resolve because I think the other reasons we've given for rescinding DACA are more than sufficient to justify it.

• [W]e don't think you need to address the legality question if you agree with us on any of our other arguments.

OK, enough already, we get the point.

Maybe Roberts just wanted to duck deciding on the legality of DACA. As Justice Thomas stated, “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.” Ronald Cass wrote that “On its face, this looks less like the work of an umpire and more like the response of someone faced with a publicly notable case who feels the gravitational pull of public opinion.”

Roberts Open Mind Toward Unlawfulness Not Being Enough

Whatever the reason for Roberts’ reticence to determine DACA’s lawfulness, it appears that a negative answer would not necessarily have affected the outcome of the case. Tellingly, Roberts’ opinion stated that “While an agency might, for one reason or another, choose to do nothing in the face of [legal] uncertainty, illegality presumably requires remedial action of some sort.” “P]resumably”? “Remedial action of some sort”? And during oral argument, Roberts asked General Francisco “if DACA was illegal, that means that when the government was giving out these benefits it was acting illegally, right? Francisco responded “Yes.” Roberts then noted:

Now it's not always the case when the government acts illegally in a way that affects other people that we go back and untangle all of the consequences of that. Did Secretary Nielsen, when she was considering the reliance interests, was she looking simply to the question of a wind-down, or was she looking more generally, for example, to the application of something like the de facto officer doctrine ... when officers acted illegally, but we don't go back and invalidate their prior actions?

What is the de facto officer doctrine? The Supreme Court explained in 1995 that:

The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient. ... “The ... doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.”... The doctrine has been relied upon by this Court in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceedings leading to their conviction and sentence.

So, the doctrine has nothing to do with allowing the continued provision of unlawfully provided benefits. Justice Roberts was making quite a leap. But his question does indicate a mindset potentially amenable to the ideas that 1) reliance interests in unlawfully provided benefits are still cognizable, and 2) unlawfully provided benefits may still be provided notwithstanding a determination that they are unlawful.

Did The Trump Administration Persuasively Argue that DACA Is Unlawful?

Roberts asked Mongan during oral argument:

• Is it enough ... for [the Attorney General] to say, look, I've got a decision from the Fifth Circuit that tells me this is illegal, it's been affirmed by the Supreme Court by an equally divided vote? That's enough for me to say we're not going to do it?

• [D]o you need more than that? You've got a court of appeals decision affirmed by an equally divided Supreme Court. Can't he just say that's the basis on which I'm making this decision?

Mongan replied:

• I think that it would have to begin with the deficiencies that Judge Bates identified, which is that the agency has not actually identified with any particularity the legal grounds that it's concerned with. [Emphasis added.]

• I think Judge Bates is exactly right on this. The reasoned explanation requirement is meant to facilitate judicial review and inform the public. And, yes, they point to the DAPA case, but there's four or five theories of illegality floating around there ranging from the notice and comment to the Take Care Clause claim. And we don't know which ground the agency based its decision on. So that is a lack of a reasoned explanation.

• [T]hey would at least have to identify the particular grounds that they're relying on to facilitate further judicial review of their underlying legal conclusion and explain why they believe it applies to the DACA policy when they pointed to a case about a different policy [DAPA].

Who was Judge Bates? Judge John Bates is a federal district court judge in the D.C. Circuit who had ruled in one of the district court decisions enjoining the termination of DACA that:

Plaintiffs ... attack DHS's reliance on DACA's purported unlawfulness as a reason to rescind DACA. They argue both that DHS failed adequately to explain its legal conclusion ... and that even if DHS's explanation were adequate, its conclusion was erroneous ... . The Court agrees that DHS's decision was inadequately explained, and hence it need not address the alternative argument that DHS's conclusion was substantively incorrect.

This demonstrates the principle that even when the government correctly believes a program to be unlawful, a judge can reject the government’s rescission of the program if the unlawfulness is inadequately explained.

Bates went on:

“One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions.”... Thus, when an agency reverses a prior decision, it must “provide a reasoned explanation for the change.”

...

In concluding that DACA was unlawful, DHS purported to identify both statutory and constitutional defects with the program. For its part, the Rescission Memo pointed to “the Supreme Court's and the Fifth Circuit's rulings” ... and then cited the Sessions Letter.

...

This scant legal reasoning was insufficient to satisfy the Department's obligation to explain its departure from prior stated view that DACA was lawful. In concluding that DACA was implemented “without statutory authority,” neither the Sessions Letter nor the Rescission Memo cited any statutory provision with which DACA was in conflict.

But Bates’ sincere-or-not quest to find a “statutory provision with which DACA was in conflict” was a needless effort. As the 5th Circuit forcefully argued:

The dissent repeatedly claims that congressional silence has conferred on DHS the power to act ... . To the contrary, any such inaction cannot create such power:

... To suggest, as the [agency] effectively does, that Chevron [v. Natural Resources Defense Council] step two [deference to an agency’s interpretation of an ambiguous statutory provision] is implicated at any time a statute does not expressly negate the existence of a claimed administrative power ... is both flatly unfaithful to the principles of administrative law ... and refuted by precedent. ... Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well. [Emphasis in original, quoting a D.C. Circuit opinion.]

Bates went on:

True, both documents pointed to the Fifth Circuit's decision in Texas, which held that DAPA likely conflicted with the INA's “intricate process for illegal aliens to derive a lawful immigration classification from their children's immigration status.” ... But the government does not meaningfully dispute that, unlike DAPA, “DACA has 'no analogue in the INA.’” ... Thus, the Fifth Circuit's statutory analysis is inapposite. The Department's conclusion that DACA was implemented without statutory authority — based only on an incongruous reference to the Fifth Circuit's decision on DAPA — therefore cannot support the program's rescission.

It is true that the 5th Circuit found that:

Although the Secretary has discretion to make immigration decisions based on humanitarian grounds, that discretion is conferred only for particular family relationships and specific forms of relief — none of which includes granting lawful presence, on the basis of a child's immigration status, to the class of aliens that would be eligible for DAPA.

But Bates had been cherry-picking. The 5th Circuit also found that “The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States — an untenable position in light of the INA's intricate system of immigration classifications and employment eligibility.”

And the 5th Circuit itself explained in its later DACA case:

• The defendants' attempts to distinguish DACA and DAPA are unavailing. They argue that DACA is different because DAPA contravened a statutory process for how parents can derive lawful classification from their children. While the INA contains no such process for DACA recipients, that does not reduce the conflict. It simply means that Congress made no provision for DACA recipients to obtain lawful presence. In any case, that contradiction was just one among the many that we identified.

• Like DAPA, DACA “is foreclosed by Congress's careful plan; the program is ‘manifestly contrary to the statute.’”

Thus, the 5th Circuit’s reasoning in the context of DAPA is for the most part equally applicable to the question of DACA’s lawfulness.

I will let Bates continue:

The Department's explanation for its conclusion that DACA was unconstitutional was equally opaque. The Sessions Letter made a fleeting reference to the Attorney General's “duty to ... faithfully execute the laws passed by Congress[]” ... which could be read to invoke the President's constitutional duty to “take Care that the Laws be faithfully executed.”... But the letter made no attempt to explain why DACA breached that duty. This failure was particularly acute in light of [the Obama DOJ’s OLC memo] .., which deduced “from the nature of the Take Care duty” no fewer than “four general ... principles governing the permissible scope of enforcement discretion” and concluded that DAPA, a similar deferred-action program, was consistent with all of them ... . [A]lthough the Sessions Letter asserted that DACA suffered from "the same ... constitutional defects that the courts recognized as to DAPA[]” ... the Fifth Circuit's decision in Texas did not actually identify any such defects. Indeed, it expressly declined to address the plaintiffs' constitutional claims. Like its evaluation of its statutory authority to implement DACA, then, the Department's analysis of DACA's constitutionality was so barebones that the Court cannot “discern[]” the “path” that the agency followed ... . Thus, it too cannot support DACA's rescission.

In fairness to Bates, the 5th Circuit had in fact stated that “We decide this appeal ... without resolving the constitutional claim.” And the district court’s decision also noted that:

[T]he Court is specifically not addressing Plaintiffs' likelihood of success on their ... their constitutional claims under the Take Care Clause/separation of powers doctrine ... . [I]f there is a non-constitutional ground upon which to adjudge the case, it is a “well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question.” [Emphasis in original.]

Attorney General Sessions’ letter was simply incorrect on this point. The courts had not recognized constitutional defects. The Trump administration might have itself realized the error, which would explain the curious remark in its Reply Brief for the Petitioners that “neither Secretary [Duke nor Nielsen] ‘place[d] any significant weight’ on Attorney General Sessions’ statement that DACA was unconstitutional ... which, in any event, simply underscored his strongly held view that DACA was based on a statutorily unauthorized exercise of Executive power.”

Moving past Bates, the Roberts opinion stated that:

• [DHS] might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight. And, even if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider. DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it.

• To be clear, DHS was not required to do any of this or to “consider all policy alternatives in reaching [its] decision.” ... Agencies are not compelled to explore “every alternative device and thought conceivable by the mind of man.” ... [I]t was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.

It “might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight”?! Justice Roberts again displays a mindset seemingly comfortable with reliance interests in unlawfully provided benefits being cognizable and with the continued provision of unlawfully provided benefits being acceptable.

To the extent that Roberts was amenable to the view that there are cognizable reliance interests in statutorily prohibited benefits provided by mistake or in defiance of the statute, the Trump administration’s method of terminating DACA certainly didn’t help dissuade him.

First, the Trump administration itself wavered on whether DACA had to be terminated (even though it was unlawful in the administration’s view). On the one hand, it told the Supreme Court in its Petition for a Writ of Certiorari Before Judgment that “DHS’s decision is ... independently supported by its conclusion, informed by the Attorney General’s advice, that indefinitely continuing the DACA policy would itself have been unlawful.” On the other hand, it made this astounding statement to the Court in its reply brief for the petitioners:

[T]he Duke memorandum ... explained that, in light of the Texas decisions and the Attorney General’s letter, the DACA policy “should be terminated,” not that it must ... . Acting Secretary Duke rescinded the policy “[i]n the exercise of [her] authority in establishing national immigration policies and priorities,” not as compelled by law.

As Howlin’ Wolf, Frank Zappa, and Mr. Fookwire have been known to exclaim, “great googly moogly”! Was the Trump administration arguing here that it was not in fact compelled by law to terminate an unlawful program? Was the reply brief written by the solicitor general’s evil twin?

The Great Wind-Down

Second, the Trump administration implicitly admitted that it could continue to operate an unlawful program, at least for a period of time:

• Attorney General Sessions’ letter stated that “In light of the costs and burdens” that a rescission would “impose[] on DHS”, the department should “consider an orderly and efficient wind-down process.”
• The administration stated in its Petition for a Writ of Certiorari Before Judgment that “By choosing a gradual and orderly administrative wind-down of the policy rather than risk an immediate disruptive court-imposed one, DHS ensured that existing DACA grants would be permitted to expire according to their stated two-year terms and even permitted a limited window for additional renewals.”
• The administration stated in its Brief for the Petitioners that DHS was “‘concern[ed] that a nationwide injunction in the Texas litigation would abruptly shut down the DACA program.’”
• Solicitor General Francisco during oral argument stated that there was a “serious possibility of a court-ordered shutdown of the program, rather than an orderly wind-down within ... the agency’s control” and “the whole idea was that you're giving people an opportunity to ... order their lives in ... a time period to allow them to do that.”

Roberts pounced on these admissions:

• [D]eciding how best to address a finding of illegality moving forward can involve important policy choices, especially when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS.

  Acting Secretary Duke plainly exercised such discretionary authority in winding down [DACA]. [Emphasis added throughout.]

  ...

  But Duke did not appear to appreciate the full scope of her discretion.

• DHS has considerable flexibility in carrying out its responsibility. The wind-down here is a good example of the kind of options available. Acting Secretary Duke authorized DHS to process two-year renewals for those DACA recipients whose benefits were set to expire within six months. But Duke’s consideration was solely for the purpose of assisting the agency in dealing with “administrative complexities.” ... She should have considered whether she had similar flexibility in addressing any reliance interests of DACA recipients ... . DHS has already extended benefits for purposes other than reliance, following consultation with the Office of the Attorney General.

  ...

  Had Duke considered reliance interests, she might, for example, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. Alternatively, Duke might have considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen. Or she might have instructed immigration officials to give salient weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion.

It was hard for the Trump administration to argue that an unlawful program had to be terminated when it had already decided to delay the termination to take care of itself! Why would it be lawful to “wind down” the program to take account of DHS’s (of course wholly justified) institutional interests but not lawful to wind it down to take account of reliance interests of the alien beneficiaries (assuming that the alien beneficiaries of an unlawful program can have cognizable reliance interests)? And even if the Trump administration believed it lawful to temporarily extend an unlawful program for the purpose of providing program benefits, why would not it be lawful to permanently extend the program for such purpose?

Thomas stated that:

The majority contends that th[e] argument [that reliance interests are irrelevant when assessing whether to rescind an action that the agency lacked statutory authority to take] does not carry force because the rescission implemented a winddown period during which recipients would continue to receive benefits. But whether DHS’ decision to wind down DACA was lawful is a separate question from whether DHS was required to consider reliance interests before discontinuing an unlawful program.

Was Thomas arguing that it might be lawful for an agency to conclude in its discretion to continue to provide unlawful benefits, at least temporarily, even if it couldn’t be forced to do so to accommodate reliance interests? If so, I am not sure upon what basis he was making this claim.

Regents’ Legacy

Thomas’ warnings regarding Regents’ toxic legacy may yet bear out. We will need to see how fares the next administration wanting to roll back the Biden administration’s ill-advised and sometimes unlawful initiatives. Keep in mind, however that Regents required reliance review is not rigorous, at least on paper. As I previously noted, Chief Justice Roberts wrote that:

[E]ven if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider. DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it.

And in Medinatura, Inc. v. FDA, the Federal District Court for the District of Columbia concluded in October 2020 that:

The Supreme Court precedent requiring the consideration of reliance interests before agencies shift policies … does not set a high bar. The agency in Regents failed to consider reliance interests at all … and in [the Court’s 2016 decision in] Encino Motorcars[ LLC v. Navarro], the agency's change in policy could not overcome significant reliance interests where it “gave almost no reasons at all” justifying its new policy….

In fact, Megan Moleski goes so far as to argue in How to Protect DACA & Dreamers After the United States Supreme Court’s Decision in Department of Homeland Security v. Regents of the University of California that:

Taken in its entirety, Chief Justice Roberts’ … opinion reads like a playbook on how DHS could go about rescinding DACA “the right way” in the future. While he prevented the rescission in the immediate, he gave detailed examples of what DHS should have considered, what it should have included in its rescission memorandum, and ways in which it could legally wind-down the program. DHS could, at any point, refer back to this plurality opinion to create a new rescission memorandum that ticks all the boxes Chief Justice Roberts laid out.

However, Regents should not be considered to be merely a paper tiger. The states have already been able to wield Regents as a sword against the Biden administration itself. Not surprisingly, the 5th Circuit — victim of Regents — was quick to try to turn it into a legal weapon. In December 2021, in Texas v. Biden, it upheld the District Court for the Northern District of Texas’ injunction against the administration’s termination of the Migrant Protection Protocols (MPP). The 5th Circuit concluded that:

• DHS “failed to address whether there was legitimate reliance on” MPP... . That alone is fatal.

  The seven-page memo that accompanied [DHS’s] Termination Decision didn't directly mention any reliance interests, and certainly not those of the States ... . Given the Supreme Court's explanation that border states “bear[] many of the consequences of unlawful immigration” one would expect a “reasonable and reasonably explained” memo to mention the issue at least once.

• DHS's failure to consider those interests when it terminated MPP was arbitrary and capricious.

  Astonishingly, the Government responds that DHS had no obligation to consider the States' reliance interests at all [in part because the MPP was a discretionary program]. Yet again, that “contention is squarely foreclosed by Regents.”... There, the Supreme Court acknowledged that DACA was a discretionary program ... . Still, the Court faulted DHS for not considering reliance interests ... . [I]f DHS must consider states' reliance interests before terminating DACA — a discretionary immigration program — then it must do so before terminating MPP.

  The Government interprets Regents differently. On its view, Regents “said that legitimate reliance interests were ‘one factor to consider’ ... it did not categorically hold that costs to States must be considered in undertaking any and all agency actions.”... But that's not what Regents said. The Court was clear that agencies must consider reliance interests, and that failure to do so is arbitrary and capricious ... (explaining that “[i]t would be arbitrary and capricious to ignore” reliance interests and that “consideration [of any reliance interests] must be undertaken by the agency in the first instance” ...). And Regents contains not one hint that States' reliance interests somehow fall outside the general rule.

  The Government next responds that the States lack “any cognizable reliance interests in MPP.” And it faults the States for failing to provide a better accounting of the specific actions they took in reliance on MPP.

  [T]he Government's argument reads as if taken straight from the Regents dissent. The majority explicitly rejected the dissent's argument that “DACA recipients have no legally cognizable reliance interests.”... Instead, explained the majority, agencies “must” assess the strength of reliance interests (even weak interests, it seems) “in the first instance.”… That's at least as true here as it was there. [Emphasis in original.]

Ouch! The Supreme Court overturned the 5th Circuit’s ruling for unrelated reasons, but the logic and the principle still stand.

The district court had also noted that:

[The termination memo] ... discount[s] [Plaintiff States’] reliance interests, stating: “The short time in which MPP was in place, as well as the small percentage of noncitizens encountered along the [southwest border] who were enrolled in MPP while it was in operation, undercut any claimed reliance interest, as well as any claim regarding significant burdens to the States.”... Like MPP, DACA had only existed for a short time. This statement is further contradicted by the Secretary's statements that the benefits of MPP include deterring aliens from arriving. So, the Court must look beyond enrollment numbers when considering Plaintiffs' reliance interests. [Emphasis in original.]

Plaintiffs, particularly the State of Texas, shoulder much of the burden of unlawful immigration, which “must not be underestimated.”... Texas is “a 900-mile border state.”... It cannot be that Texas “has no reliance interests in the enforcement of federal criminal immigration law.”... Giving short shrift to a relevant consideration “is not a substitute for considering it.”

In July 2022, the 5th Circuit took on DHS Secretary Mayorkas’ 2021 “Guidelines for the Enforcement of Civil Immigration Law”, in which, as I have written, Mayorkas told DHS immigration officers in no uncertain terms to ignore congressional mandates regarding the arrest and detention of criminal aliens and aliens ordered removed. In Texas v. U.S. the Circuit concluded that:

• We ... address the costs of this rule to the States and their 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.’” [quoting Regents] Failure to do so is fatal.

• As to the States' reliance interests, [DHS’s] Memo flatly concludes that “no such reasonable reliance interests exist.” In a single paragraph citing no evidence, DHS concluded that the States, including Texas as a 900-mile border state, has no reliance interests in the enforcement of federal criminal immigration law according to the governing statutes ... . “Stating that a factor was considered ... is not a substitute for considering it.”... Rather, courts “must make a searching and careful inquiry to determine if [the agency] actually did consider it.”... At this point, DHS has not shown a likelihood that it adequately considered the relevant costs to the States or their reliance interests in the pre-existing enforcement policy. [Emphasis in original.]

The Supreme Court overturned the 5th Circuit’s ruling for unrelated reasons, but the logic and the principle still stand.

Finally, District Court for the Southern District of Texas, in its 2021 decision vacating DACA (while staying the vacatur with respect to existing DACA recipients) and enjoining DHS from approving any new DACA applications, stated that:

[F]or decades the states and their residents have relied upon DHS (and its predecessors) to protect their employees by enforcing the law as Congress had written it. [N]either the DACA Memorandum nor its underlying record gives any consideration to these reliance interests. Thus, if one applies the Supreme Court's rescission analysis from Regents to DACA's creation, it faces similar deficiencies and would likely be found to be arbitrary and capricious.

So, the district court was postulating, albeit in dicta, that if DACA had been challenged on procedural APA grounds, the very program itself would “likely be found to be arbitrary and capricious” for not considering the States’ historic reliance on the federal government “enforcing the law as Congress had written it”. Then, in upholding the district court’s vacatur/injunction, the 5th Circuit concluded in Texas v. United States in 2022 that:

The defendants … contest the nationwide scope of the district court's judgment….

[The district court] considered the “reliance interests of the Plaintiff States on the duly enacted immigration laws of this country[”] … and concluded that nationwide relief with a partial stay was appropriate.

This reasoning was not an abuse of discretion.

Thus, the 5th Circuit had concluded that the district court had not “relie[d] on clearly erroneous factual findings or erroneous conclusions of law when deciding to grant the injunction, [n]or … misapplie[d] the factual or legal conclusions when fashioning its injunctive relief.”

It will be fascinating to read the first Supreme Court assessment of such state reliance interests in the context of a state challenge to the termination of an immigration program or policy.

End Notes

¹ P. 44 (2019).

² See, e.g., Pub. L. No. 106-386, § 1503(d)(2); Pub L. No. 110-457, § 204; Pub. L. No. 107-56, § 423(b); Pub. L. No. 108-136, § 1703(c)-(d); and Pub. L. No. 109-13, div. B.

³ Gordon, Mailman, and Yale-Loehr, Immigration Law and Procedure § 72.03[2][h] (1998).