SCOTUS Strikes Down DACA Rescission

Sends DHS back to explain a policy decision it has already explained—or not

By Andrew R. Arthur on June 19, 2020
  • The Supreme Court held that it could review DHS's September 2017 decision to rescind DACA.
  • The Court held that exercise of prosecutorial discretion in rescinding DACA is reviewable under the Administrative Procedure Act (APA) — despite the fact that the creation of the program did not comply with the APA.
  • It found that DHS violated the APA in rescinding the program without assessing whether the department could grant DACA recipients deferred action without giving them other benefits (such as employment authorization), and without assessing recipients' reliance on the DACA program — despite the fact that the memorandum creating that process stated it "confer[red] no substantive right".
  • Justice Roberts, however, writing for a plurality of the Court, rejected the respondents' claim that rescission of DACA violated the Fifth Amendment's Due Process guarantee of equal protection.
  • Justice Thomas, in dissent, concluded that DACA was "unlawful from its inception" because the Napolitano DHS created the program without any statutory authority and without going through APA rulemaking to begin with.
  • Justice Alito, in his own dissent, found that the judicial branch, without finding that DACA cannot be rescinded, "has prevented that from occurring during an entire Presidential term", concluding: "Our constitutional system is not supposed to work that way."
  • Justice Kavanaugh, in a separate dissent, argued that the Court should have also assessed a later DHS memorandum, which, he concluded: "would pass muster as an explanation for the Executive Branch's action" in rescinding DACA.

On Thursday, the Supreme Court issued its long-awaited opinion in Department of Homeland Security [DHS] v. Regents of the University of California. The case involved two issues: Whether DHS's decision to wind down the Deferred Action for Childhood Arrivals (DACA) program is judicially reviewable, and whether that wind-down was lawful. The majority held that DHS's September 2017 decision to wind down DACA (which it characterizes as a "rescission") was reviewable under the Administrative Procedure Act (APA), and that the decision to do so was arbitrary and capricious, in violation of the APA.

To recap: On June 15, 2012, then-DHS Secretary Janet Napolitano announced that certain aliens who came to the United States under the age of 16 and who met specific guidelines could request consideration of DACA for a period of two years, subject to renewal. The press release accompanying that announcement set forth the parameters of that relief:

Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

Came to the United States under the age of sixteen;

Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;

Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;

Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;

Are not above the age of thirty.

Notably, the Napolitano memorandum stated that it "confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights."

As of December 31, 2019, there were approximately 649,070 aliens present in the United States who were DACA beneficiaries, according to USCIS. An additional 2,850 initial applications were pending with the agency as of that date.

On September 4, 2017, then-Attorney General Jeff Sessions sent a letter to then-DHS Secretary Elaine Duke, advising her that DHS should rescind DACA. Sessions noted that the program suffered the same defects as the related Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) policy, which had been enjoined by the Fifth Circuit in 2015 in Texas v. United States, a decision affirmed by an equally divided Supreme Court (and later rescinded by DHS).

For this reason, he stated, "it is likely that potentially imminent litigation [filed by Texas and six other states] would yield similar results with respect to DACA." To avoid the burdens and costs associated with such litigation, Sessions concluded, "DHS should consider an orderly and efficient wind-down" of the DACA process.

Acting on the guidance in that letter, on September 5, 2017, Acting Secretary of Homeland Security Elaine Duke rescinded DACA, effective March 5, 2018. DACA recipients whose benefits would have expired before that date could have applied for renewal up until October 5, 2017.

In response to direction from the U.S. District Court for the District of Columbia, then-DHS Secretary Kirstjen Nielsen on June 22, 2018, issued a memorandum concurring with and declining to disturb Duke's decision. Nielsen's memorandum contained additional justifications for the rescission of DACA.

As I explained in May 2018, as a result of federal court injunctions, DACA "remain[ed] in effect, and U.S. Citizenship and Immigration Services (USCIS) [] resumed accepting requests to renew DACA grants." That remains true, up to and as a result of the Supreme Court's decision.

As noted, the majority held that the rescission of DACA was reviewable under the APA. It held that it could not review the June 22, 2018 Nielsen memorandum, but was required to focus only on the reasoning in the September 2017 Duke memorandum, deeming Nielsen's memorandum an impermissible "post hoc rationalization" for Duke's September 2017 action.

Conceding that Duke was bound by the legal conclusion in Sessions' September 4, 2017 letter, the majority held that addressing the concerns therein was strictly within the purview of DHS — that is, Duke, as expressed through her September 2017 memorandum.

The majority found that the Fifth Circuit's decision in Texas — upon which Sessions had relied in deeming DACA illegal — had focused strictly on the illegality of DAPA's extension of eligibility for benefits (including work authorization, Social Security, and Medicare), which violated the Immigration and Nationality Act (INA). Duke had erred, it concluded, in not considering whether, in line with Sessions' letter, to eliminate eligibility for those benefits while continuing DACA's policy of deferring removal of the aliens affected by DACA, which it termed "forbearance."

The majority concluded that Duke retained that forbearance authority, and violated the APA in failing to consider forbearance — that is, continuing deferred action — and in particular, an assessment of whether to offer the option of forbearance without the associated benefits for aliens who were covered by DACA.

Moreover, the majority held, DHS's September 2017 rescission of DACA was arbitrary and capricious in violation of the APA because Duke failed to consider whether those DACA recipients had legitimately relied on the initial DACA memorandum. It rejected the government's argument that DHS did not need to consider such reliance because "the DACA Memorandum stated that the program 'conferred no substantive rights' and provided benefits only in two-year increments." The majority found:

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.

It addressed the reliance issues that had been raised by respondents and amici, but held that such concerns, while "noteworthy", were not "necessarily dispositive". Rather, DHS could find that the disclaimers eliminated such reliance, or that reliance on what DHS deems to be an unlawful action carried little or no weight, but that the department had to address whether there were such interests, assess whether they were "significant", and balance those interests against DHS's competing policy concerns.

The majority, however, rejected the respondents' claim that rescission of DACA violated the Fifth Amendment's Due Process guarantee of equal protection. That claim was based on the disparate effect that rescission had on "Latinos from Mexico" (78 percent of DACA recipients); arguments the majority summarized as "the unusual history behind the rescission"; and statements made by President Trump both before and after the election.

The majority concluded that none of these points constituted a "plausible equal protection claim". Specifically, the majority determined that it would only be logical that Latinos would constitute "an outsized share of recipients of any cross-cutting immigration relief program" because they "make up a large share of" aliens illegally present in the United States. Second, the majority concluded that there was "nothing irregular" in the history leading to the rescission of DACA, which was premised on Sessions' September 4, 2017, letter to DHS. Third, the majority noted, the decision to rescind DACA was not the president's — it was based on analysis by Sessions and the determination by Duke — and therefore Trump's "statements — remote in time and made in unrelated contexts — do not qualify as 'contemporary statements' probative of the decision at issue."

Accordingly, the majority remanded the issue of DACA rescission to DHS for further consideration, and remanded the underlying cases that had brought the matter to the Supreme Court for further proceedings consistent with its decision.

In concurrence, Justice Sotomayor asserted that the majority's foreclosure of equal protection challenges to DACA rescission was "unwarranted" and "premature".

Justice Thomas in dissent (writing for Justices Alito and Gorsuch), on the other hand, concluded that DACA was "unlawful from its inception" because the Napolitano DHS created the program without any statutory authority and without going through APA rulemaking to begin with.

The latter point is premised on the presumption that DHS had the authority to create DACA to begin with (which Justice Thomas made clear it did not), but Justice Thomas contended that Napolitano's failure to comply with the APA in creating DACA "likely provides an independent basis for rescinding DACA."

The justice did not pull any punches concerning the majority opinion, asserting:

Today's decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS' initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong — the political branches. Such timidity forsakes the Court's duty to apply the law according to neutral principles, and the ripple effects of the majority's error will be felt throughout our system of self-government.

Similarly, Justice Alito, in his own dissent and after reviewing the years of litigation that had led to the majority's opinion (and the consequences of that opinion itself), voiced his own blunt objection:

What this means is 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.

Finally, Justice Kavanaugh, in his dissent, contended that the Court should have considered the Nielsen memorandum, which, he concluded: "would pass muster as an explanation for the Executive Branch's action" in rescinding DACA.

Specifically, he stated that the Nielsen memorandum was itself a "rule" under the APA, and that Nielsen, as the DHS secretary, had the authority to follow Duke's determination to rescind DACA, or to issue her own decision. In this instance, she chose rescission, providing additional explanation for Duke's decision, but (as noted) the majority did not consider Nielsen's memorandum, fobbing it off as a "post hoc justification" for DACA's rescission. Justice Kavanaugh noted, however:

Under our precedents, however, the post hoc justification doctrine merely requires that courts assess agency action based on the official explanations of the agency decisionmakers, and not based on after-the-fact explanations advanced by agency lawyers during litigation (or by judges). [Emphasis in original.]

Logically, he asserted:

It would make little sense for a court to exclude official explanations by agency personnel such as a Cabinet Secretary simply because the explanations are purportedly post hoc, and then to turn around and remand for further explanation by those same agency personnel. Yet that is the upshot of the Court's application of the post hoc justification doctrine today.

* * * *

Because the Court excludes the Nielsen Memorandum, the Court sends the case back to the Department of Homeland Security for further explanation. Although I disagree with the Court's decision to remand, the only practical consequence of the Court's decision to remand appears to be some delay. [Emphasis added.]

This dovetails with the concerns raised by Justice Alito. In this instance, through the acquiescence of compliant federal judges (including five justices), a key policy determination of the administration — itself premised on executive overreach into Congress's express prerogative to set policy "pertaining to the entry of aliens and their right to remain here" — has been thwarted, indefinitely.

I can provide analysis, but I can offer little in the way of explanation of this opinion. It is a mish-mash, in which the Court has remanded to DHS determination on and explanation of a policy decision (rescinding DACA) in a situation where such determination has already been made (in the Duke memorandum) and explained compliant with the APA (in that document and in the Nielsen memorandum).

And although "Dreamers and advocates" may "celebrate" that decision, they don't really have that much to celebrate. Those who currently maintain DACA status have no permanent status — as I have explained previously, that would have logically followed DACA rescission. Now, there is little pressure on congressional Republicans to do anything to help them, and Democrats are likely to await November's election results in the hopes of pushing through a broader amnesty.

The most notable time that they followed that strategy was in 2016, when the issue was who would replace the late Justice Antonin Scalia: Merrick Garland (a purported "moderate" nominated by President Obama), or a potentially much more liberal lawyer appointed by (would-be) President Hillary Clinton with a (would-be) Democratic majority in the Senate to ram that nominee through.

Election results are fickle things, however, and neither the Hillary Clinton presidency nor the Democratic majority in the Senate came to pass. That is why Justice Gorsuch's name appears in this decision to begin with.

The current Attorney General, William Barr, will likely feel compelled to protect the legislative and the executive branches' respective authorities regarding immigration policy and issue a new opinion on the illegality of DACA implementation (Sessions' letter was just one page long). If that happens, DHS Secretary Chad Wolf (or his successor) will be in the same position as Duke was in on September 5, 2017.

If that is the case, he will logically use the Supreme Court's decision as a template to wind down DACA again. Should he do so, he might tailor that wind-down to provide longer protections for the most sympathetic DACA recipients (medical professionals, PhD candidates, and active-duty military members, to name a few) while rooting out the less deserving (and, in particular, criminals).

Then, the process will start all over again. Only, on a slightly better footing, with the Supreme Court's somewhat confusing opinion as precedent.

Two final points. The majority's opinion appears to allow judicial review of affirmative grants, by DHS, of deferred action. States and localities may well seek standing to challenge those determinations — as Texas and its sister states did with respect to DAPA. In any event, Regents will likely also make DHS less likely to exercise that authority in the future. Neither result will be good for deserving, but removable aliens seeking that status henceforth.

Also, the Texas litigation that prompted Sessions' September 4, 2017, letter to Duke is back on, as Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas on Thursday "gave lawyers for both sides until July 24 to tell him how they think the" Supreme Court's opinion affects that case.

Judge Hanen should not ask me. I just analyze Supreme Court decisions; I can't always explain them.