The Supreme Court is expected to issue an opinion in Trump v. Regents of the University of California et al. (the DACA case) any day now. While this is a case before a court of law, the American media's coverage of the case has scrupulously avoided any discussion of the legal issues in favor of covering political arguments.
A typical law school examination question presents a scenario and the student has to identify as many legal issues as possible. The Regents case has become more tangled than an administrative law examination question because the parties and some courts have maintained the fiction that DACA is an exercise in prosecutorial discretion and the government has argued that DACA is unlawful while giving few reasons why it is unlawful.
It is pretty certain that the Supreme Court's decision will be split 5-4. The real suspense in the case to court observers is what legal bases the Court will rely on in its opinion to find that the rescission of DACA was lawful.
To start with some history, the DACA program was announced in a memorandum from former DHS secretary Janet Napolitano in 2012 under the Obama administration.
Under the Napolitano memorandum, DACA purports to be an "exercise in [DHS's] prosecutorial discretion" and it "confers no substantive right, immigration status or pathway to citizenship."
As implemented by DHS, certain illegal aliens can fill out a form and pay a filing fee of $495. If approved, the illegal alien receives two years of deferred action and an employment authorization document.
But does this sound like a policy statement on prosecutorial discretion?
DHS subsequently created a nearly identical program for illegal aliens who were parents of American citizens, known as DAPA. In Texas v. United States, the Fifth Circuit held DAPA was unlawful. That decision was affirmed by an evenly divided Supreme Court.
The Trump administration announced it was ending DACA through a memorandum issued by acting DHS Secretary Elaine Duke in 2017. The Duke memorandum, citing Texas v. United States for authority, announced DHS was rescinding DACA because it was unlawful.
Then lawsuits were filed across the country challenging the rescission of DACA. The procedural history is convoluted. I will only address two of those cases. NAACP v. Trump was filed in the D.C. District Court. It is important in this saga because, as is common in administrative law cases, the D.C. District Court asked for further explanation from DHS. DHS Secretary Nielsen responded with another memorandum.
The Nielsen memorandum gave three reasons for rescinding DACA: (1) it was illegal; (2) DHS had serious doubts that it was lawful; and (3) DHS should not adopt a policy contrary to acts of Congress.
At this point, even a Washington Post journalist should be able to detect a problem with DACA. The DACA program granted hundreds of thousands of work permits. Yet the program was created and rescinded by memos. Should the United States have a system of government based upon memos written by bureaucrats? That should be the key issue in the case, but the parties have scrupulously avoided it.
In one of several challenges, the D.C. District blocked the rescission of DACA. That decision was appealed and the D.C. Circuit held oral argument in the case on February 22, 2019. For those interested in the legal issues invoked, the D.C. Circuit oral arguments are well worth listening to as they highlight the weakness both of the case against rescinding DACA and of the government's defense of rescinding DACA. (The audio recording is available here; it does not play correctly unless you download the file.) The timings referenced below refer that this audio recording.
The judges (Edwards, Griffith, Millet) made a number of key observations on reviewability. The Supreme Court consolidated the various cases and took jurisdiction over them, so the D.C. Circuit never issued an opinion. The Ninth Circuit was the only court of appeals that addressed the merits of the case. So that decision is the main opinion for the Supreme Court to review.
As the D.C. Circuit audio highlights, the government has argued that DACA is unlawful, but it has been vague on why DACA is unlawful.
The first legal issue is whether the courts can review a decision to rescind a general policy of prosecutorial discretion when the agency says that policy is unlawful. In general, decisions of prosecutorial discretion are not reviewable. But is the rescission of a policy of prosecutorial discretion reviewable? As I previously wrote, this brief in opposition to the government makes an excellent argument for why the agency's determination of whether DACA was lawful is reviewable.
I conclude that the rescission (or implementation) of a broad policy governing prosecutorial discretion is judicially reviewable. Imagine Congress passing a law outlawing something and then an administration puts in place a general policy that it will not prosecute that something.
Another legal issue is, if the courts can review the rescission of a policy on prosecutorial discretion when the agency says the policy is unlawful, what is the standard of review? After 42:50, Judge Griffith asks if the court should review whether DACA was actually unlawful or whether it was reasonable for DHS to conclude DACA was unlawful.
Assume for the moment that DACA is strictly a policy of prosecutorial discretion and that the courts have the authority to review the rescission of the policy based upon the agency stating the previous policy was unlawful. What then should be the standard of review?
- Can the policy be rescinded if the agency reasonably believes the policy is unlawful?
- Or is such a rescission arbitrary and capricious if a court finds that the policy is not unlawful?
Under the first standard, the government clearly should prevail because there was a court decision in Texas v. United States that supported its position. Under the second standard, the government has effectively no ability to decide an action it takes is lawful. Imagine the chaos when the Fifth Circuit says something is unlawful and the Ninth Circuit says lawful. Multiply that level of chaos by the number of circuits.
Also after 52:00, Judge Griffith points out that the government does not have to be correct on why DACA is unlawful, they just have to get the right answer. Thus, the Supreme Court could find DACA is unlawful for grounds other than those mentioned in the bureaucrat memos.
If the Supreme Court adopts the fiction that DACA is merely a general statement of policy giving standards for prosecutorial discretion, under what circumstances are they judicially reviewable and what are the standards? However, that approach to tackling the DACA question would be making the point the hard way.
Another legal issue is whether DACA is actually a substantive regulation rather than merely a general policy statement on prosecutorial discretion.
Judge Millet made that observation, after 36:20: "[DACA] isn't just an exercise of discretion. This is a regulatory program." And after 17:00, Judge Millet makes the important point that DACA is not just prosecutorial discretion, but also the granting of employment. The Chief Justice made the same observation in oral argument before the Supreme Court: "the whole thing was about work authorization and these other benefits."
The Supreme Court could easily conclude that America does not have a system of government by bureaucrat memos and that DACA is a substantive regulatory program that required public notice and comment, as Judge Millet was hinting at. The Fifth Circuit concluded exactly that when it found the DAPA program was unlawful.
Oddly, in the 9th Circuit:
Plaintiffs  assert that the rescission of DACA is in fact a substantive rule under the APA, and that it therefore could not be validly accomplished without notice-and-comment procedures.
If rescinding DACA requires a substantive rule, that implies that the creation of DACA was a substantive rule as well. Substantive rules require public notice and comment, otherwise they are unlawful (with a few exceptions not relevant here).
The lack of notice-and-comment issue is the strongest argument that DACA is unlawful. Yet the Trump administration did not make that argument to the Supreme Court (or apparently to any lower court). This is surprising because the government's case repeatedly relies on Texas v. United States and this is one of the key reasons in that opinion. However, multiple amicus briefs in support of the government raised the issue that the lack of notice and comment made DACA unlawful. (See here, here, here, and here.)
The second strongest argument that DACA is unlawful is that the government did not have the authority to grant work permits. The Obama administration made the absurd claim that the executive has unlimited authority allow aliens to work through regulation. This is an obvious issue for the government to raise in its defense because this was another ground the Fifth Circuit found DAPA was unlawful.
Recognizing that the existence of this unlimited power is a key to DACA being lawful, and all of the respondents asserted that it existed. (See here, here, here, here, and here.)
The government's reply brief attempts to rebut that claim with this bizarre statement:
Section 1324a may have ratified extending work authorization to aliens who received deferred action on an individualized basis or pursuant to interstitial class-based deferred-action policies. See 8 U.S.C. 1324a(h)(3) (referring to aliens "authorized to be so employed ... by the Attorney General"). But it cannot reasonably be interpreted to have "brought about the enormous and transformative expansion" in the Secretary's authority that would be required to support conferring work authorization in conjunction with a deferred-action policy like DACA.
The Trump administration does not deny the claim that it has the power to authorize alien employment through regulation. Instead it says it might have that power, but the power is not expansive enough for DACA. So which is it? Does the government have the power to authorize alien employment through regulation without congressional approval or does it lack that power?
Again, it was up to the amicus briefs to raise the issue that DACA was unlawful because DHS did not have the authority to grant work permits. (See here, here, here, here, and here.)
Another issue that the Fifth Circuit picked up on is that suspension of enforcement to a class of illegal aliens is contrary to the statutes Congress has enacted. This was another issue left to amici. (See here, here, here, and here.)
For the law students looking for issues to move up to an A on their example, there are constitutional issues that could be raised to show DACA is unlawful. On constitutional issues, the government, again, deferred to the Fifth Circuit's opinion — yet that opinion largely ignored them. It was up to the amici to point out the issues of whether DACA was unconstitutional under (1) the Take Care clause; (2) separation of powers; and (3) the nondelegation doctrine. (See here, here, here, here, and here.)
For the student looking for an A+, one amicus brief raised the issue that DACA conflicts with deportation treaties.
From a purely legal perspective, the cards are overwhelmingly stacked against opponents of DACA rescission.
However, there are two wild cards. First, the Supreme Court has allowed itself to be treated as a court of politics rather than a court of law.
It would be easier to find Amelia Earhart than to find an article in the nation's elite media that addresses the legal issues of DACA. Clearly the hope of DACA supporters (as evidenced by the amicus briefs) is that some justices can be swayed by political arguments. How many Justices will cave in to political pressure?
Second, the government's defense of its rescission of DACA has been weak to incompetent. One would expect that after the D.C. District Court gave DHS a second try at giving an answer, it would fill in all the gaps, crossing all the t's and dotting all the i's. Instead, the Nielsen memo mostly rehashed the Duke memo and added little (but some) to address the courts' concerns.
If the government were to seriously argue in court that DACA is unlawful to justify rescinding it, it would have said something along the lines of "DACA is unlawful because such a program requires notice and comment, the government does not have the authority to grant work permits to such aliens, and DACA is contrary to the immigration laws and the Fifth Circuit's opinion in Texas supports these conclusions."
Instead, the government has argued, "DACA is unlawful because the Fifth Circuit said DAPA was unlawful." Simply relying on the Fifth Circuit in Texas opens the door to rebuttal by identifying distinctions between DAPA and DACA.
Rather than leading with (not to mention ignoring) arguments on why DACA actually is unlawful, the government has consistently led with the utterly laughable argument that the rescission of DACA is unreviewable by the courts. Doing so has set up questions like this:
JUSTICE GINSBURG: General Francisco, there's a strange element to your argument because you're arguing this is a discretionary matter; it's not reviewable because it's committed to agency discretion.
But, on the other hand, you say the agency had no discretion because this program was illegal. In other words, the law requires you to drop DACA. So how can it be committed to your discretion when you're saying we have no discretion; this is an illegal program?
This is one of the few cases I have seen where the amicus briefs make a much better case than the parties' briefs. In fact, the government's defense of DACA rescission has been so pathetic that one might suspect the deep state within DHS has been sabotaging Trump all along.
There is a reason why the Trump administration has such a problem with the federal courts. While the Ninth Circuit opinion in Regents is an embarrassing political document that reads like it came from the White House press office under Obama and undermines the credibility of the federal courts, the outcome is not outrageous in light of the anemic case the Trump administration presented to the court. This is what happens when one puts a Kristen Nielsen in charge rather than a Kris Kobach.