What Is DACA?

Is it a rule or is it prosecutorial discretion?

By John Miano on November 15, 2019

I previously wrote about how the elite media has totally ignored the legal issues in its coverage of the DACA case before the Supreme Court. I thought I would fill in some of the gaps left by the press's gross malpractice here. My only real interest in DACA is over the alien employment issue. However, more mundane issues of administrative law are likely to dominate the Supreme Court's opinions.

A key question for the Supreme Court is "What is DACA?" The New York Times answers that question this way:

The program was introduced in 2012 by President Barack Obama as a stopgap measure that would shield from deportation people who were brought into the United States as children. The status is renewable, lasting two years at a time. The program does not provide a pathway to citizenship.

Participation in the program comes with a range of benefits. Along with permission to remain in the country, recipients can also get work permits, through which many have obtained health insurance from their employers.

To make this description complete, one needs to add that the alien has to file an application and pay a $495 fee.

In any event, this describes what DACA does, not what DACA is. So what is DACA? The answer to that question should drive the case, but the parties have tried to avoid the issue.

Janet Napolitano's DACA memorandum states that DACA is an "exercise of our prosecutorial discretion".

Prosecutorial discretion is integral to our system of law. Assume you are riding a crowded bus in Florida and you need to get past someone in order to get off. So you tap that person lightly on the shoulder to attract their attention. In doing so you have committed the crime of battery and could go to jail absent prosecutorial discretion not to prosecute such cases. At the same time discretion can be abusive, as in the Jeffrey Epstein matter.

If DACA is an exercise of prosecutorial discretion, the case before the Supreme Court is simple. Prosecutorial discretion is not judicially reviewable. Faced with that established law, the University of California argued before the Supreme Court that when the prosecutorial discretion involves a large number of people it becomes reviewable. Justices Alito and Gorsuch (twice) asked the obvious question: What rule should the Supreme Court adopt to distinguish between prosecutorial discretion that is not reviewable and that which is. The answers were:

It's a composite — in this case, it's a composite of principles, a determination that — a categorical determination involving a substantial number of people ...


Well [] — there — as I said, it's a combination of factors which include the government inviting people to rely upon and make decisions based upon that policy, the provision of benefits connected with it, individuals making choices, and — and then — and the Heckler case — [] specifically.

These are non-answers. It is surprising the University of California did not prepare a proposed rule for the court to adopt.

Going back to Napolitano's original memo, it states:

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.

The memo from John Morton, director of ICE, ordering the implementation of DACA in his agency said:

As there is no right to the favorable exercise of discretion by the agency, nothing in this memorandum should be construed to prohibit the apprehension, detention, or removal of any alien unlawfully in the United States or to limit the legal authority of DHS or any of its personnel to enforce federal immigration law. Similarly, this memorandum, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

Napolitano as plaintiff argues that DACA created reliance on the program while her memo directing the creation of the program disclaims that is creates anything to be relied on and ICE made it clear that DACA could be rescinded at any time. (I refer to the respondents as the plaintiffs because that usage is likely clearest to most readers.)

At this point, it is time to stop calling a "spade" a "gardening tool". DACA is not an exercise in prosecutorial discretion and Napolitano's DACA memo was just a subterfuge. To participate one has to file an application. One has to file a $495 fee. DACA has a two-year duration. One gets a work authorization. DACA does not reflect the agency looking at individual cases and deciding whether they should be prosecuted.

The chief justice picked up on exactly that:

the whole thing was about work authorization and these other benefits. Both administrations have said they're not going to deport people. So the deferred prosecution or deferred deportation, that's not what the focus of the policy was. Yes, the other statutes provided that, but it was triggered by — by the memo.

The University of California correctly notes that the employment under DACA came from "under other unchallenged laws [i.e., regulations]".

Indeed, that is because neither party had any incentive to question whether the regulations granting work authorizations were lawful. DACA recipients were never going to argue that the regulations that allowed them to work were unlawful. The immigration bureaucracy within DHS was not going to question whether its own regulations were lawful. When several states challenged the related DAPA program, the ability to confer work authorizations was addressed in an adversarial context.

This issue is one where amicus briefs stepped in. Four of the seven supporting the government raised the employment authorization issue that the government had neglected to raise. (See here, here, here, and my own, here.)

Unless the Supreme Court changes the rule that agency enforcement discretion is not judicially reviewable, the DACA rescission cannot be reviewed.

In any event, to be reviewed for being arbitrary and capricious, it has to be a reviewable agency action. That means a rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.

Logically, the rescission of DACA has to be the same type of agency action that created it. If it is not, that opens another string of legal argument beyond what I can address here. To that end, the courts below rejected the argument that the DACA program, created without notice and comment, had to be rescinded with notice and comment.

Which of these is the DACA? We know it is not a failure to act. License and sanction are easy ones to take off the table. An order means "a final disposition" so that one can go as well. Relief is a:

(A) grant of money, assistance, license, authority, exemption, exception, privilege, or remedy;

(B) recognition of a claim, right, immunity, privilege, exemption, or exception; or

(C) taking of other action on the application or petition of, and beneficial to, a person.

The granting of a DACA application could be relief but does not describe the DACA program.

That leaves a rule, which is:

The whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.

If we call DACA a "rule", which is certainly its most accurate description, that creates a whole new set of issues. The courts differentiate between substantive rules and interpretive rules.

A substantive rule is one "affecting individual rights and obligations". With the granting of work permits and creating the reliance that plaintiffs claim, if DACA is a rule, it is surely a substantive rule.

If DACA is a substantive rule, it was required to go through publication in the Federal Register and have public notice and comment — but it did not. Thus, if DACA is a rule, it was procedurally defective and is unlawful — just as the Trump administration claims.

Obviously, the plaintiffs' arguments maintain the fiction that DACA is an exercise in discretion. The government also maintains this fiction. This is probably due to the DHS bureaucracy not wanting to admit their error. The government's prime argument is that the DACA rescission is not reviewable at all.

If my concern over DACA had extended beyond the employment issue, this is where I have would have argued against DACA. Indeed, several of the amici supporting the government did point out that DACA was a rule that required notice and comment and that the lack of notice and comment made DACA unlawful.

The amicus briefs in support of the plaintiffs are largely vanity pieces. However, there is one particularly good one from Administrative Law Scholars that is the best rebuttal (better than those of the parties) to the government's claim that the DACA rescission is not reviewable.

Under the existing law the Supreme Court could find that:

  1. If DACA is prosecutorial discretion, it is not reviewable.
  2. If DACA is a rule, it is unlawful because of the failure to give notice and comment or that DHS has no authority to grant work permits.

That is why the plaintiffs have tried to carve out a third option: The Supreme Court should accept the fiction that DACA is agency prosecutorial discretion and adopt some standard (that even the plaintiffs cannot articulate) that, when prosecutorial discretion becomes large, it becomes reviewable.

In the context of a blog I cannot cover fully these issues that have taken up hundreds of pages of briefing. However, I hope this will give some idea of the legal issues that the Supreme Court will have to decide. The question of whether DACA was a good idea is not before the Court. The question is whether the rescission of DACA was lawful.