The Supreme Court Should End DACA, and Return Power to Congress

Then, let the compromise begin

By Andrew R. Arthur on November 13, 2019

On November 12, 2019, the Supreme Court heard arguments on the authority of Article III courts to review the September 2017 decision of the Department of Homeland Security (DHS) to wind down the Deferred Action for Childhood Arrivals (DACA) program, and alternatively whether DHS's decision was lawful. Based on the law, the Court should reverse the judgments of the Court of Appeals for the Ninth Circuit and the District Court for the District of Columbia, and the orders of the District Court for the Eastern District of New York, preventing that wind-down. Then, it is up to Congress to do its job to make provisions for the approximately 703,890 DACA recipients (as of July 31, 2019), if it concludes that they should be granted status.

First, the law. Contrary to the various findings of those lower courts, DHS's decision to rescind DACA is not reviewable under the Administrative Procedures Act (APA). Specifically, section 701(a)(2) of the APA explicitly excludes from the coverage of that act "agency action [that] is committed to agency discretion by law." "Deferred action" is solely committed to the jurisdiction of DHS. Note that section 103(a)(1) of the Immigration and Nationality Act (INA) explicitly states:

The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers.

None of the exceptions applies to the decision to commence section 240 proceedings against any removable alien. It is DHS's sole authority, as a matter of law.

Notably, Justice Scalia writing for the Court in Reno v. American-Arab Anti-Discrimination Comm. (AAADC) explained "deferred action":

As one treatise describes it:

To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action. A case may be selected for deferred action treatment at any stage of the administrative process. Approval of deferred action status means that, for the humanitarian reasons described below, no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated.


Since no generous act goes unpunished, however, the INS's exercise of this discretion opened the door to litigation in instances where the INS chose not to exercise it. [Emphasis added.]

More tersely, my colleague Jessica Vaughan has explained: "Deferred action is a more formal way of exercising prosecutorial discretion that is available to USCIS, ICE, and CBP." You don't need to believe me or Vaughan, however; here is the first line of the June 15, 2012, memorandum by then-DHS Secretary Janet Napolitano announcing DACA: "By this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, [DHS] should enforce the Nation's immigration laws against certain young people who were brought to this country as children and know only this country as home." (Emphasis added.) She concluded:

This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here. [Emphasis added.]

I will return to the first highlighted sentence, but as the foregoing makes clear, prosecutorial discretion is strictly committed to the discretion of the executive. No court has the authority to direct any prosecutor, that prosecutor's agency, or the department in which that agency is placed to exercise such discretion as it relates to any party that is amenable to prosecution — or in this case, removal. I was a prosecutor, and an Article III court could no more tell me how to exercise my discretion then they could tell me what charges to bring, what arguments to make (more on that below, as well), or what to name my child.

Nor is the DACA wind-down reviewable under the Immigration and Nationality Act (INA). Specifically, section 242(g) of the INA makes clear that, except as provided elsewhere in section 242, "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General [now DHS] to commence proceedings ... against any alien under this chapter." The rescission of DACA is, essentially, a determination by DHS that it may "commence proceedings" against any removable alien who is, currently, protected by that policy.

The Court in AAADC found that restricting judicial review of deferred-action decisions (or non-decisions) was one of the reasons Congress enacted section 242(g) of the INA. It held that section 242(g):

[S]eems clearly designed to give some measure of protection to "no deferred action" decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.

Section 242(d) of the INA does permit a court to review a final order of removal (provided certain conditions have been met), but needless to say, DHS has not been permitted (due to the aforementioned injunctions) to issue such an order against any alien currently protected by DACA. Even if the Supreme Court were to determine that the rescission of DACA is reviewable under the APA, the Court must find that DHS has provided ample legal grounds for rescission. As the government argued in its brief to the Court:

First, as a practical matter, DHS was reasonably concerned about maintaining a nonenforcement policy that is similar to, if not materially indistinguishable from, two related policies that the Fifth Circuit [in Texas v. United States] had held unlawful, in a decision affirmed by an equally divided vote of this Court. Second, as a matter of policy, DHS wanted to terminate a legally questionable nonenforcement policy and leave the creation of policies as significant as DACA to Congress. Third, as a matter of law, DHS correctly, and at a minimum reasonably, concluded that DACA is unlawful.

There is little substantive difference between the policy at issue in Texas (Deferred Action for Parents of Americans and Lawful Permanent Residents, or "DAPA") and DACA, and DACA was thus susceptible to the same threatened challenges as DAPA, a point that Acting Secretary Elaine Duke referred to in her September 5, 2017, "Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA)". Congress has directed that the aliens currently covered by the DACA policy are amenable to removal and should (absent relief) be removed.

Was DHS correct in this conclusion? Yes, but even if it weren't, a contrary decision by the Court would lead to endless litigation of collateral matters involving an exercise of discretion that under the terms of the memorandum that created it "confer[red] no substantive right." There does not appear to be much dispute as to the fact that DHS could rescind DACA, as the following exchange between Justice Kavanaugh and Ted Olson, representing the respondents, shows:

JUSTICE KAVANAUGH: Do you -- do you agree that the executive has the legal authority to rescind DACA?


So, how many rounds of litigation would occur before the Supreme Court (ultimately) found that the "reasons" for rescission were sound? More importantly, how much interference would such a finding inflict on the province of the executive, and what precedent would it set? To ask the question is to identify how improper the judicial interference that would result from such a conclusion would be.

More importantly, however, it would require lawyers within the Department of Justice (DOJ) to make arguments that they believe are invalid as a matter of law. Here, as Acting Secretary Duke's memorandum rescinding DACA made clear, DHS was facing litigation challenging the validity of DACA:

Texas, along with several other states, sent a letter to Attorney General [AG] Sessions asserting that the original 2012 DACA memorandum is unlawful for the same reasons stated in the Fifth Circuit and district court opinions regarding DAPA and expanded DACA. The letter notes that if DHS does not rescind the DACA memo by September 5, 2017, the States will seek to amend the DAPA lawsuit to include a challenge to DACA.


The [AG] sent a letter to [DHS] on September 4, 2017, articulating his legal determination that 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."

That is, DOJ stated that it could not legally defend DACA in the face of the proposed challenge, and that the program had to be discontinued. If the Supreme Court were to hold that this reason for the rescission of DACA was invalid, it would essentially be forcing DOJ to make arguments that it did not agree with.

In much the same way that a court cannot tell a prosecutor how to exercise prosecutorial discretion, in our system of justice a court cannot tell a lawyer what legal arguments that lawyer must make, particularly if those arguments are contrary to the lawyer's own judgment. Such judicial overreach would impinge on the province of the bar to such an extent that the line between judge and lawyer would be permanently, and improperly blurred. Here is the natural conclusion if the Court were to rule in this manner: Judges would have the power to tell me, as a lawyer, what cases I can and cannot bring and what arguments I must make, even if I do not believe, ethically, that they are valid. Will they write the briefs for me, too?

That said, AG Sessions' conclusions were plainly correct. On numerous occasions, Congress expressly refused to provide status to aliens similarly situated to those covered by the policy, which I explained in testimony before the House Judiciary Committee in March 2019.

The Obama administration subsequently acted improperly when it thereafter implemented DACA in June 2012. As Jonathan Turley of George Washington University Law School explained in testimony before the House Judiciary Committee in December 2013:

The Administration's basis for negating statutory provisions lost even the pretense of reasoned authority in the immigration area. There has long been a general consensus that a president cannot refuse to enforce a law that is considered constitutionally sound. Thus, in his general support for nonenforcement orders, former Attorney General Benjamin Civiletti acknowledged that "[t]he President has no 'dispensing power,'" meaning that the President and his subordinates "may not lawfully defy an Act of Congress if the Act is constitutional . ... In those rare instances in which the Executive may lawfully act in contravention of a statute, it is the Constitution that dispenses with the operation of the statute. The Executive cannot." Yet, in June 2012, President Obama appeared to exercise precisely this type of "dispensing power" in issuing an order to federal agencies that the Administration would no longer deport individuals who came to this country illegally as children despite the fact that federal law mandates such deportation.


The federal law mandates deportation for individuals in the country illegally. While prosecutorial discretion has been cited in individual case decisions, the Administration was using it to nullify the application of federal law to hundreds of thousands, if not millions of individuals. ...In ordering this blanket exception, President Obama was nullifying part of a law that he simply disagreed with. There is no claim of unconstitutionality. It is a raw example of the use of a "dispensing power" over federal law. It is difficult to discern any definition of the faithful execution of the laws that would include the blanket suspension or nullification of key provisions. What the immigration order reflects is a policy disagreement with Congress. However, the time and place for such disagreements is found in the legislative process before enactment. If a president can claim sweeping discretion to suspend key federal laws, the entire legislative process becomes little more than a pretense. [Emphasis added.]

Turley is correct: The Obama administration unlawfully did by fiat what Congress refused to do by law. Many DACA applicants present sympathetic cases, but their avenue for relief is Congress, not the courts.

Which brings me to a November 12, 2019, opinion piece in CNN by Sen. Richard Durbin (D-Ill.) and Rep. Zoe Lofgren (D-Calif.) captioned "The Supreme Court and Congress must defend Dreamers". The introductory paragraph sets the tone: "For the last two and a half years, President Donald Trump has led a campaign of unprecedented cruelty towards immigrants, especially children."

Needless to say, I would disagree with that contention, but I have made those points before, in numerous different contexts. They continue:

A major front in the President's war on immigrants is his attack on Dreamers, young immigrants who came to the United States as children and are American in every way except their immigration status. President Trump is fighting to end deportation protections for hundreds of thousands of Dreamers, and whether or not his anti-Dreamer agenda succeeds will depend on the Supreme Court and Congress.

"American in every way except their immigration status"? That is a pretty big condition precedent, if you believe that citizenship means anything. And "young immigrants" is somewhat misleading. As I testified in March:

In fact, some DACA recipients would appear to have different justifications for amnesty relief that are stronger than others. For example, I note that Jon Feere previously rebutted claims that DACA was "for children": "The plan would benefit illegal aliens up to age 30, and anyone 18 or older is an adult. This is not just for youths."

Mr. Feere is correct in his contentions. In fact, an alien could have entered the United States the day before his or her 16th birthday, and be a DACA recipient at the age of 36, closer to middle-age than youth.

In fact, today there are DACA recipients who are 37. And President Trump is not "attack[ing]" Dreamers (regardless of how you define that phrase). He expressly said in October that if the Supreme Court rules in favor of the government and allows for the rescission of DACA, Congress will pass a deal to allow the affected individuals to remain in the United States.

Durbin and Lofgren acknowledge that the president has been open to legislative fixes to the DACA issue in the past, but they just don't like his proposals, as they make clear:

When he announced the repeal of DACA, President Trump called on Congress to "legalize DACA," but since then, he has rejected numerous bipartisan deals to protect Dreamers.

Instead, the President tried to put his entire hardline, anti-immigration agenda on the backs of Dreamers. In exchange for a path to citizenship for DACA recipients, Trump's administration proposed a plan that would slash legal immigration and family reunification, and dramatically cut protections for women and children fleeing persecution.

The latter point is gratuitous and a non-sequitur. The president wants to close loopholes in our current credible-fear system (which is well overdue), but "cut protections for women and children fleeing persecution" is a gross misstatement of the president's proposals.

And contrary to the respective statements of the senator and congresswoman, the White House has attempted to work with Congress on a legislative DACA fix. What the two are really complaining about is the fact that the president expects Congress to compromise on legislation that he is willing to sign. My colleague Mark Krikorian, all the way back in October 2017, described what the president wants:

The White House on Sunday evening released its immigration principles that "outline reforms that must be included as part of any legislation addressing the status of Deferred Action for Childhood Arrivals (DACA) recipients," as the cover letter to Senator Schumer puts it.

The list includes many of the items long advocated by restrictionists: Fund the border wall, end asylum abuse, stop sanctuary cities, require E-Verify, end chain migration and the visa lottery, and more. Josh Gerstein from Politico may be right that the immigration wish list is like a presidential budget, in that Congress won't necessarily be guided by it, but I suspect it's more significant than that.

Fleshing this out, in January 2018, the White House issued its "Framework on Immigration Reform & Border Security". My colleague Jessica Vaughan broke major elements of that framework down shortly thereafter:

  • Immediate amnesty for 1.8 million "DACA-eligible" illegal aliens. This group is meant to include both DACA recipients and those who meet the age and arrival requirements, but who may not have ever actually applied, who may have been too young at the time (DACA beneficiaries had to be at least 15 because technically they were applying for a work permit), or who were ineligible because they dropped out of high school.
  • 10-year path to citizenship. Amnesty recipients will have a five-year period of conditional residence and may adjust to Lawful Permanent Residence (LPR, or green card) status after meeting certain benchmarks, such as minimal work or educational requirements. Notably, they will have to meet the "Good Moral Character" standard, which is the standard for receiving a green card under current law; DACA held applicants to a lesser standard that allowed certain types of criminal behavior. They may become citizens after another five to seven years.
  • Reduce chain migration categories. Immigrants will be able to petition only for new spouses and children under the age of 18 (reduced from 21 under current law). The spouses of citizens (and their children) will continue to enter in unlimited numbers and the spouses of LPRs (and their children) will be capped at about 88,000, as under current law. The categories for adult sons and daughters, siblings, and parents of citizens will be eliminated.
  • Admit the chain migration waiting list. All of the approximately 3.9 million people on the waiting list for chain migration green cards will be offered the opportunity to apply for admission under current numerical limits, plus a few extra. ... According to the State Department, this will ultimately result in the admission of about 2.5 million new immigrants, as some will decline the opportunity and a few will be found to be ineligible for admission. I estimate that the admission of these applicants would take approximately 10 years under the current numerical limits and quotas.
  • End the visa lottery. The 50,000 immigrant visas now allotted to the visa lottery will be re-allocated and divided equally between the family and employment category waiting lists.

None of these are extreme positions (with the exception of an amnesty for 1.8 million "DACA-eligible" illegal aliens), but doubtless Durbin and Lofgren are opposed to many if not all of them (except the 1.8 million), as their opinion piece indicates. But back to the "compromise" aspect.

One of the fixtures of a two-party system and a bicameral legislature is that neither side gets everything that they want, and sometimes have to accept proposals with which they don't agree. Any proposal to address the issue of DACA recipients or Dreamers or whatever nomenclature one chooses to use will have to include at least some of the president's proposals in order to get his signature.

More importantly, however, it will return to Congress the chance, and more importantly, the power to address this issue.

The Obama administration in creating DACA took away any impetus on the part of Republicans to grant status to some or all of these aliens, because they could not compromise for legislative fixes to the immigration laws they deemed (usually correctly) to be necessary — the aliens were already protected, so the Democrats had no incentive to bargain.

The courts who (wrongly in my opinion) enjoined the DACA rescission then took away any impetus on the part of the Democrats to agree to any or all of those legislative fixes, or the White House proposals, because those judges' decisions extended DACA indefinitely — why negotiate against yourself?

As Turley noted: "What the immigration order reflects is a policy disagreement with Congress. However, the time and place for such disagreements is found in the legislative process before enactment." If the Supreme Court rules as it should, to allow the administration to wind-down DACA, that process can proceed, as it, again, should.

And if Durbin, "the Democratic Whip, the second highest ranking position among the Senate Democrats", and Lofgren, "Chair of the Subcommittee on Immigration and Citizenship" for the House Judiciary Committee (which writes the immigration laws in the lower house), cared about the prerogatives of Congress as much as they disdained the president, they would agree.