I recently took a deep dive into the Supreme Court’s 2020 decision in DHS v. Regents of the University of California, in which the Court unexpectedly invalidated the Trump administration’s recission of President Obama’s Deferred Action for Childhood Arrivals (DACA) administrative amnesty program for illegal aliens claiming to have come to the U.S. as minors. When the ruling came out, I was shocked by Chief Justice John Roberts, Jr.’s, majority opinion. Hadn’t Roberts voted to uphold the 5th Circuit’s affirmance of a district court judge’s injunction against President Obama’s sibling Deferred Action for Parents of Americans (DAPA) program for the illegal alien parents of U.S. citizens and permanent residents? Why then did he join with the justices nominated by Democrat presidents and pen this decision? Justice Thomas was incredulous, decrying “The majority’s demanding review of DHS’ decisionmaking process” as “especially perverse” and that “the majority now requires the rescinding Department to treat [an] invalid rule as though it were legitimate ... [an] absurd” requirement.
Upon surfacing, I concluded that Roberts’ opinion was far more thoughtful and defensible than I had initially thought. There are still parts that I believe to be wrongheaded or opportunistic, but the opinion as a whole cannot be summarily dismissed as judicial hackery or activism. But regardless of one’s views as to the merits of Regents, the decision has set the parameters under which future administrations will have to operate to rescind programs of prior administrations, even those they consider unlawful. Therefore, I have tried to distill from Roberts’ opinion the rules that future administrations will need to follow to successfully defend such recissions. I'll call them Roberts’ Rules of Recission.
DHS v. Regents of the University of California
Chief Justice Roberts stated that the issue to be decided was not whether DHS could rescind DACA: “All parties agree that it may. The dispute is instead ... about the procedure the agency followed in doing so.”
Roberts chose to not even decide whether DACA was lawful. This was odd, as the Trump administration had at first solely — and later, at the very least, primarily — justified its DACA recission on the basis of DAPA and DACA being unlawful exercises in executive branch power.
Also odd was that the states that challenged DAPA in federal court, the 5th Circuit in its DAPA decision, and the Trump administration in its defense of its DACA recission all seemingly concluded that DAPA/DACA’s unlawfulness stemmed solely from the benefits — including “lawful presence” and eligibility for work authorization and federal welfare benefits — flowing to beneficiaries, not from the programs’ “forbearance” — the notification of whole classes of aliens (through the grant of deferred action) that they would not be subject to removal proceedings for a period of time.
What Roberts concluded was that the recission violated the Administrative Procedure Act (APA) in essentially two ways: DHS had not considered (1) the “reliance interests” built up by DACA beneficiaries who had been granted forbearance; and (2) the alternative of cutting off access to benefits without ending forbearance. The Court was only able to rule in this manner because of the apparent conclusion of the 5th Circuit and the Trump administration that forbearance was not in and of itself unlawful. I do consider forbearance itself to be unlawful. As I have written, 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, especially whole classes of aliens, that the government promises to ignore their unlawful conduct.
Roberts’ Rules of Recission ... Regarding Reliance
Rule No. 1: You Must Consider the Reliance Interests of the Alien Beneficiaries of the Program You Want to Rescind
You must even consider the reliance interests of illegal aliens in an unlawful program and of aliens told up front that they weren’t being granted any substantive rights.
Chief Justice Roberts wrote in his opinion that “because 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.)
Janet Napolitano, President Obama’s secretary of Homeland Security, created DACA through a memo (the “Napolitano memo”), which stated that it “conveys no substantive right, immigration status or pathway to citizenship”. In Regents, Justice Thomas made the point that:
Contemporaneous with the [establishment of] DACA ... DHS stated that “[it] can terminate or renew deferred action at any time at the agency’s discretion.”... DHS repeatedly argued in court that the [enjoined] 2014 memorandum [creating DAPA and expanding DACA] 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 “[it] has absolute discretion to revoke deferred action unilaterally, without notice or process.” [Emphasis in original.]
Roberts rejoined that neither Justice Thomas nor the Trump administration “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 there was no such consideration.”
Roberts also wrote that “DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the [Napolitano memo]” — but that DHS needed to have done so in the recission memo. Now, there is some tension between Roberts’ telling DHS that it has the ability to conclude that reliance is “unjustified in light of the express limitations” in the DACA program with his statement that there is no legal authority establishing that such limitations “automatically preclude reliance interests” but that they are “surely pertinent in considering the strength of any reliance interests”. Future court decisions will be needed to give agencies a better understanding of what they are and are not allowed to do.
In any event, at least in theory and before a nonactivist court, considering (and, if appropriate, disposing of) aliens’ reliance interests should not be an onerous task. Roberts explained that “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.”
In Medinatura, Inc. v. FDA (a post-Regents decision), the District Court for the District of Columbia Circuit concluded 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, DACA advocate Megan Moleski goes so far as to bemoan 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 ... opinion to create a new rescission memorandum that ticks all the boxes Chief Justice Roberts laid out.
Rule No. 2: Wherever Possible, You Should Embrace the States’ and the Public’s Reliance Interests
In Texas v. Biden, post-Regents, the 5th Circuit upheld the District Court for the Northern District of Texas’ injunction against the Biden administration’s termination of the Migrant Protection Protocols (MPP). The appellate court concluded that:
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.
The 5th Circuit concluded that “DHS's failure to consider those interests when it terminated MPP was arbitrary and capricious”, noting that “Regents contains not one hint that States' reliance interests somehow fall outside the general rule.” The Supreme Court overturned the 5th Circuit’s ruling for unrelated reasons, but the decision’s logic still stands.
Post-Regents, the 5th Circuit also took on DHS Secretary Alejandro 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 court concluded that “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.” The Supreme Court overturned the 5th Circuit’s ruling for unrelated reasons, but, again, the decision’s logic still stands.
I should also note that the District Court for the Southern District of Texas, in Texas v. United States, its post-Regents decision vacating DACA (while staying the vacatur with respect to existing DACA recipients) and enjoining DHS from approving any new DACA applications, proclaimed 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 [Napolitano memo] 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.
The district court was postulating, albeit in dicta, that if DACA had been challenged on 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”. In upholding the district court’s vacatur/injunction, the 5th Circuit concluded in Texas v. United States that “This reasoning was not an abuse of [the district court’s] discretion.” Thus, the 5th Circuit 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 would be beneficial for an agency to explain how the program being rescinded had impermissibly ignored or discounted the reliance interests of states and the public in the status quo ante before the implementation of such program.
Rule No. 3: Longstanding Programs Engender Reliance Interests, and Even the Most Fleeting Programs May Be “Longstanding”
Chief Justice Roberts wrote in Regents 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.”’” The reference to “longstanding policies” comes from the Supreme Court’s 2016 decision in Encino Motorcars, which involved a policy in place for over three decades. But in Regents, the DACA program had only been in effect for five years when the Trump administration attempted to rescind it. Which raises the question, how long does a program have to have been in effect for it to be considered longstanding?
In Ohio v. Becerra, the District Court for the Southern District of Ohio ruled post-Regents that:
[Regents] relied on the principle that “longstanding policies may ... engender serious reliance interests that must be taken into account.”... The [rule at issue here] was in effect for less than two years ... . On a motion for preliminary injunction, the Court finds it unlikely that Plaintiffs will successfully argue that failure to consider reliance interests accrued over two years renders the Department's decision arbitrary and capricious. [Emphasis in original.]
So, can the government ignore any reliance interests when rescinding a program that has only been in operation for two years? Would Chief Justice Roberts consider an agency’s failure to consider reliance interests built up over two years to be “unlikely” to “render” the agency’s decision to be arbitrary and capricious? Keep in mind that the reliance interests in the 5th Circuit’s MPP case were only generated over a little more than two years. The Texas district court in the MPP litigation has in fact noted that the Biden administration’s MPP termination memo “discount[s Plaintiff States’] reliance interests, stating: ‘The short time in which MPP was in place ... undercut[s] any claimed reliance interest, as well as any claim regarding significant burdens to the States.’”1 The court then pointed out that “[l]ike MPP, DACA had only existed for a short time”.
And, post-Regents, in Nat'l Urban League v. Ross, the 9th Circuit upheld a district court’s injunction against tightened deadlines the Commerce Department had imposed for certain reporting requirements for purposes of the 2020 Census. The injunction was in part justified on the basis of reliance interests that had accrued over only three and a half months! Without any apparent irony, the 9th Circuit stated that:
The district court ... concluded that there was a striking lack of evidence in the record showing that the Bureau had considered the extensive reliance interest ... . That conclusion is amply supported. “When an agency changes course, as [the Bureau] did here, it must ‘be cognizant that longstanding policies [!] may have “engendered serious reliance interests that must be taken into account.”’” [Emphasis added.]
Thus, in order to play it safe, an agency should consider all reliance interests in its recission analysis, no matter how longstanding — or shortstanding — were the relied-upon policies.
Roberts’ Rules of Recission Regarding ... Unlawful Programs
Rule No. 4: If the Program To Be Rescinded Is Unlawful, Explain Why ... in Excruciating Detail
The first rule of the fight to rescind unlawful programs is that you do talk about their unlawfulness. You not only must talk about a program’s unlawfulness, you must explain in excruciating detail why it is unlawful. For if Chief Justice Roberts had based his opinion in Regents on DACA’s lawfulness or unlawfulness, the government would have found itself up a certain creek. At the Regents oral argument, Michael Mongan, counsel on behalf of the states seeking to prevent DACA’s recission, argued that DHS “has not actually identified with any particularity the legal grounds that it’s concerned with”, and that while DHS pointed to the DAPA case, “there [were] four or five theories of illegality floating around there ranging from the notice and comment to the Take Care Clause claim ... [a]nd we don't know which ground the agency based its decision on.” Mongan added that “Judge Bates is exactly right on this. The reasoned explanation requirement is meant to facilitate judicial review and inform the public ... . [Here we have] a lack of a reasoned explanation.” At the very least, what we’ve got here is failure to communicate.
Who is Judge Bates? Judge John Bates is a federal district court judge in the D.C. Circuit who concluded in one of the district court decisions enjoining the recission of DACA that “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.” He found that “In concluding that DACA was unlawful, DHS purported to identify both statutory and constitutional defects with the program.” But DHS’s “scant legal reasoning was insufficient to satisfy [its] obligation to explain its departure from [its] prior stated view [during the Obama administration] that DACA was lawful”. Judge Bates added that although Attorney General Jeff Sessions’ letter to DHS Acting Secretary Elaine Duke advising her to rescind DACA “asserted that DACA suffered from ‘the same ... constitutional defects that the courts recognized as to DAPA’”, the 5th Circuit “did not actually identify any such defects”. In fairness to Judge Bates, the 5th Circuit had in fact stated that “We decide this appeal ... without resolving the constitutional claim.” Judge Bates concluded that DHS’s “analysis of DACA's constitutionality was so barebones that the Court cannot ‘discern’ the ‘path’ that the agency followed”.
In United Food & Commer. Workers Union, Local No. 663 v. United States Dep't of Agric., the District Court for the District of Minnesota concluded post-Regents that “Generally speaking, an agency is entitled to deference with respect to its analysis of its own statutory authority ... . But that principle does not absolve an agency of its duty to explain a change in its reading of its statutory authority” through reasoned analysis.
The takeaway here is that even when an agency correctly believes a program to be unlawful, a judge can and will reject its rescission if the unlawfulness is inadequately explained.
Rule No. 5: You Must Take the Straight Road, Not the Long and Winding One, in Ending Unlawful Programs
Gradually transitioning alien beneficiaries off a program slated to end only undermines your claim as to its unlawfulness.
The Trump administration decided to “wind-down” DACA rather than immediately terminating the program:
- Attorney General Sessions’ letter to Acting Secretary Duke recommended that “[i]n light of the costs and burdens” that a rescission would “impose on DHS”, it should “consider an orderly and efficient wind-down process”.
- Solicitor General Noel Francisco told the Supreme Court during oral argument that “the whole idea [of a wind-down] was that you're giving people an opportunity to ... order their lives in ... a time period to allow them to do that”.
- The Trump administration told the Supreme Court 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 District Court for the District of Columbia Circuit concluded that DHS had “express[ed its] concern that a nationwide injunction [against DACA] would abruptly shut down the ... program”.
Thus, the Trump administration had unwittingly admitted that it could continue to lawfully operate an unlawful program, at least for a period of time. Chief Justice Roberts pounced on this admission:
Acting Secretary Duke plainly exercised [her] discretionary authority in winding down [DACA].
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 ... . 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.
It was hard for the Trump administration to argue that it had no choice but to rescind an unlawful program to be terminated when it had already decided to delay the termination to take care of its needs. Why is it lawful to “wind down” a 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 alien beneficiaries? 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?
Don’t Be Too Cute by Half. A corollary to this rule is to not be too cute by half. United Food & Commer. Workers Union, Local No. 663, previously discussed, involved a rule promulgated by the Department of Agriculture during the Trump administration. The department, earlier in the administration, issued a proposed rule in which it solicited comments regarding the possibility of increasing evisceration line speed limits at pork slaughterhouses. The court explained that “The Proposed Rule appears to be consistent with FSIS's [the Food Safety and Inspection Service’s] previous position that it could consider, but not directly regulate, worker safety. Notably, FSIS did not suggest that it lacked statutory authority to take worker safety into consideration.” The proposed rule also “proposed adding a safety attestation requirement for pork plants ... not[ing] that the attestations ... would be forwarded to [the Occupational Safety and Health Administration], ‘the Federal agency with statutory and regulatory authority to promote workplace safety and health.’”
The final rule concluded that FSIS has “neither the authority nor the expertise to regulate issues related to worker safety”, and it eliminated speed limits entirely. The court noted that “Despite stating that it could not regulate worker safety, FSIS enacted its proposed safety attestation requirement.” The court concluded that “FSIS's lack of reasoned analysis here is further underscored by an internal inconsistency in the Final Rule ... . After stating that it could not regulate worker safety, FSIS enacted a regulatory provision that related solely to worker safety: the attestation requirement ... [which] imposed a regulatory burden that relates solely to worker safety.”
Hoisted by their own petard.
Rule No. 6: If Only Part of a Program Is Unlawful, You Should Not Assume that Justifies Ending the Entire Program
The Trump administration had asserted to the Supreme Court that DHS was “not required to consider whether DACA’s illegality could be addressed by separating deferred action[’s forbearance] ... from at least some of the benefits it triggers” and that “It was not arbitrary and capricious for DHS to view deferred action and its collateral benefits as importantly linked.” Roberts responded “Perhaps.” I get the distinct sense that that is the closest the chief justice will ever come to uttering the retort “make my day” in an opinion. He then wrote 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 ... [but] contends ... that we should not “dissect” agency action “piece by piece” [“scrutinizing each separate element to determine whether it would independently violate the law, rather than just to rescind the entire program”] ... . 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.
Roberts went on:
[W]hen an agency rescinds a prior policy its reasoned analysis must consider the “alternative[s]”... But [DHS’s] rescission memorandum contains no discussion ... 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.
DHS could have addressed the Attorney General’s determination that such benefits were impermissible under the INA by ... exclud[ing] DACA recipients from those benefits without rescinding ... the forbearance policy it established. But Duke’s rescission memo shows no cognizance of this possibility.
If part of an administrative program is lawful and part unlawful, and an agency wants to rescind the entire program, it needs to make a reasoned argument as to why the lawful component should be terminated along with the unlawful component.
Rule No. 7: Regardless of Whether a Program Slated To Be Ended Is Unlawful, Explain Why It Is Bad Policy
Unlawfulness May Not Be Enough. While Chief Justice Roberts explicitly declined to decide whether DACA (or any part of DACA) is unlawful, his opinion seems to display a mindset amenable to the idea that the question of lawfulness doesn’t really matter anyway — in the sense that unlawfully provided benefits may continue to be provided notwithstanding a determination that they are unlawful. Consider that:
- Roberts 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.” Illegality presumably requires remedial action of some sort?!
- During oral argument, Roberts asked Solicitor General Francisco whether “If DACA was illegal, that means that when the government was giving out these benefits it was acting illegally, right?” The question was sort of a set-up, because after Francisco answered in the affirmative, Roberts stated “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.” He referred to the “de facto officer doctrine” — “when officers acted illegally, but we don't go back and invalidate their prior actions[.]” The de facto officer doctrine, as explained by the Supreme Court, actually “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”. So the doctrine has nothing to do with allowing the continued provision of benefits not statutorily allowable. But by referring to the doctrine, Roberts was able to put forth the idea that it may be OK to do so.
You Must “Own” Your Recission. Harvard Law School Professor Benjamin Eidelson contends that the driving force behind Chief Justice Roberts’ opinion was 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. According to Eidelson, this “legal rationale relieved not just Duke, but Trump as well, of personal responsibility for an unpopular choice”.
Eidelson argued that:
[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.’” ... [T]he 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.]
[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 [a] result without the political consequences attending an actual ... decision could well be its own form of prejudice. ... The [court’s] inquiry has to account as well for the possibility that the political costs of actually making a ... decision on that ground might be prohibitive.
Eidelson then quipped that “If 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.”
To the extent that Eidelson is right about Roberts’ motivation, which he very well might be, it would behoove an administration when arguing that a prior administration’s program is unlawful to also explain why it the program represents poor public policy. While this may carry with it some political pain, especially regarding “politically popular” programs, it will remove any suspicion that the administration is claiming the program to be unlawful simply to avoid “personal responsibility for an unpopular choice”.
Roberts’ Rules of Recission Regarding ... Reliance on an Unlawful Program
Rule No. 8: While You Must Consider Reliance Interests in an Unlawful Program, You Do Not Have to Give Them any Weight
As I have discussed, Chief Justice Roberts wrote that DHS “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.) And he certainly seemed predisposed to agreeing that reliance interests in an unlawful program may be given weight. However, he never concluded that an agency has to give weight to reliance interests in an unlawful program. Roberts wrote that an agency “might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight”. (Emphasis added.) He was seemingly giving an agency, when considering reliance interests in an unlawful program, the ability to assign those interests zero weight as a direct consequence of the program’s unlawfulness (“entitled to no ... weight”). If so, his opinion reads more as an authorization to allow an agency to assign weight to reliance interests in an unlawful program in its discretion rather than as a requirement that the agency do so. This conclusion is further buttressed by Roberts’ statement that:
In [the lead dissent’s] view, DACA is illegal, so any actions under DACA are themselves illegal. Such actions, it argues, must cease immediately and the APA should not be construed to impede that result ... . But nothing about [the Attorney General’s illegality] determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests. [Emphasis added.]
Accommodating reliance interests in an unlawful program is an “option” — not a requirement.
This raises the question of whether it would be permissible for a newly sworn-in president to issue an executive order providing that executive branch agencies shall give no weight to reliance interests in unlawful programs they are seeking to rescind.
1 Texas v. Biden, 2022 U.S. Dist. LEXIS 226330, __ F.Supp.3d.__, 2022 WL 17718634.