Bibi Alli & Matthew Blaisdell

In the Department of Homeland Security v. Regents of the University of California, (we’ll refer to it here as “DHS vs. California”) the Supreme Court of the United States will either vacate the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals program (DACA) or find that the rescission violated the Administrative Procedure Act (APA)––thus allowing it to continue for the time being. Possible outcomes for the case range from the Court addressing the legality of the program itself to the Court focusing on technical issues such as its ability to review certain discretionary policy issues and/or whether the manner in which the policy was rescinded (rather than whether the decision to rescind itself) was lawful.

All of which is to say that the Court will probably focus on whether DHS ended the program the right way (in which case the program can temporarily continue until DHS gets it right) or whether DHS did it appropriately (in which case the program will end)––and whether the Court can review the DHS action at all.

What is DACA?

In 2012, the Obama Administration introduced the DACA program. A memo by then Secretary Janet Napolitano described the manner in which the Department of Homeland Security (DHS) should enforce (or, more to the point, not enforce) specific provisions of the Immigration and Nationality Act (INA) against young people who were brought to the U.S. as children.

DACA provides temporary, but renewable, deferral from removal (basically, a “halt” on deportation) if the individual can satisfy specified criteria and pass an extensive background check. An applicant would qualify for DACA if: 

• They came to the U.S. under the age of 16;
• They continuously resided in the U.S. for at least five years preceding the date of the June 15, 2012 memo and is present in the U.S. as of June 15, 2012;
• They were in school, had graduated high school, or were honorably discharged veterans of the Coast Guard or Armed Services;
• They had not been convicted of a felony offense, a significant misdemeanor, or multiple demeanors; and
• They were not above the age of 30 on June 15, 2012.

DACA recipients receive temporary protection for two years and are permitted to work lawfully. The program, however, does not grant lawful immigration status, and immigration officials are authorized to initiate removal proceedings at any time. 

As stated by California, “DACA, like other deferred action programs dating back more than 60 years, is a lawful exercise of DHS’s broad statutory authority to ‘establish national immigration enforcement policies and priorities.’” This is a reference to the concept, generally referred to as “prosecutorial discretion,” that agencies have a very a broad ability to set priorities and to determine how it will pursue enforcement of the laws passed by Congress (in this case, the INA). Because immigration officials retained discretion to evaluate individual applicants on a case-by-case basis, the Office of Legal Counsel at the Department of Justice found this policy consistent with the relevant enforcement provisions under the INA.

How did DACA get before the Supreme Court?

In 2014, DHS announced the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which would expand deferred action to undocumented parents of children who were U.S. Citizens or Lawful Permanent Residents. Additionally, it was proposed that the age and residency requirements for DACA recipients would be relaxed, and that recipients would receive deferral of removal for three year periods (generally referred to as “expanded DACA”).

Before its enforcement, Texas and a few other states, in Texas v. United States, 86 F. Supp. 3d 591 (SD Tex 2015) (Texas I), challenged the legality of both programs. The Southern District of Texas granted a nationwide preliminary injunction (meaning that the policy was paused pending the outcome of the litigation). On appeal, the decision was upheld by the Fifth Circuit Court of Appeals, which held that the programs did not allow for an individualized review of applicants, and that these policies were enacted without proper notice under the APA. Texas v. United States, 809 F. 3d 134 (5th Cir 2015) (Texas II). Because the Supreme Court split 4-4 following the death of Justice Scalia, the Fifth Circuit’s ruling was upheld. Texas v. United States, 136 S. Ct. 2271 (2016) (Texas III).

In 2017, the Trump Administration announced its decision to rescind DACA. The Attorney General wrote a letter to then-Secretary Elaine Duke advising that DACA should be rescinded because it was unconstitutional and that, given the recent litigation regarding DAPA, DACA could pose potential litigation risks to the government. In a memo from Acting Secretary Duke, the DHS was instructed to stop accepting applications. The DHS justified its action by stating that “taking into consideration the Supreme Court’s and the Fifth Circuit’s ruling, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated.” Essentially, the Trump Administration was basing its decision to rescind the policy upon a determination that the program was unlawful to begin with.

Lawsuits were filed against the government challenging the rescission in U.S. district courts in New York, California, and the District of Columbia. Leading California’s lawsuit was former DHS Secretary, Janet Napolitano, who became President of the University of California in 2013.

In each case, the district courts ruled against the government, with the New York and California courts issuing preliminary injunctions to stop the rescission. Though the D.C. court vacated the agency’s decision to terminate DACA, it allowed DHS to provide a fuller explanation, which it did via a memo from then-Secretary Kirstjen M. Nielsen.

The government appealed California’s district court’s decision to the Ninth Circuit Court of Appeals, but the ruling was reaffirmed. The government then appealed to the Supreme Court, which agreed to hear the case and consolidated the three existing cases as Department of Homeland Security v. Regents of the University of California. 

What are the issues before the Supreme Court?

There are two issues that the Supreme Court will be reviewing:

1. Whether DHS’s decision to rescind DACA is judicially reviewable; and
2. Whether DHS’s decision to rescind DACA was “arbitrary and capricious” under the Administrative Procedure Act (APA).

The Administrative Procedure Act of 1946 (5 U.S.C. §§ 551 – 559) establishes the standards and rules for governmental agencies. As will be explored below, the APA permits federal courts to review whether a government action is “arbitrary and capricious.” 5 U.S.C. § 706(2)(A). One measure for making this determination is whether the agency has provided a well-reasoned explanation for a sudden change in (or rescission of a) policy that could drastically impact a large number of people who have developed an expectation that the policy will remain in effect––what is known as a “reliance interest.” Encino Motorcars v. Navarro, 136 S. Ct. 2117 (2016).

The APA, however, precludes review of agency decisions if they are “committed to agency discretion by law”––meaning that, if federal law allows for the agency’s discretion, courts will defer to the agency’s expertise. 5 U.S.C. § 701(a)(2).

What is the government arguing?

The decision of the DHS to rescind DACA is not judicially reviewable because it was an exercise of agency discretion permitted by law.

Addressing the first issue, the government argues that the courts cannot review the decision to rescind DACA under 5 U.S.C. § 701(a)(2). The government contends that “a policy choice to retain or abandon a nonenforcement policy falls into this category because it entails consideration of multiple factors within the agency’s discretion.” This would mean that the court should defer to the DHS’s discretion because they were simply making a policy decision––just like it did when it created the program.

If the Supreme Court finds that the decision to rescind DACA is unreviewable, they will not review the merits of the case and can hold that the current injunctions are invalid. As a result, the DHS would have the discretion to stop accepting new applications and to terminate the entire program.

The decision to rescind DACA was not arbitrary and capricious because the DHS reasonably determined that DACA was an inappropriate exercise of executive authority. 

The government argues that even if the DHS’s action is reviewable, it nevertheless did not violate the APA because its justification was reasonable. The agency’s reason for the rescission centers around the determination that the Obama Administration overstepped its executive authority in creating the program. The government states that the DHS “does not have the authority to implement categorial deferred action policies, and DACA – especially because of its economic and political significance – goes beyond the gap-filling policies that DHS has the authority to implement.”

Governed by the APA, agencies can engage in rulemaking (develop and implement regulations) to fill gaps in the law. The government argues that, given the nature of the program, it constitutes more than such a “gap,” and therefore extends beyond the authority of the DHS and into actions  that are more appropriate for Congress.

The government also contends that the decision to rescind DACA was reasonable due to the similarities it posed to DAPA, which was struck down in the Fifth Circuit, therefore presenting the risks of future litigation.

The decision to rescind DACA was not arbitrary and capricious because  it was supported by firm legal analysis. 

As mentioned above, the government argues that DACA was an overreach of executive authority and that Congress is the suitable body to enact this kind of policy. Though at the time that the rescission occurred DHS primarily relied upon former Secretary Duke’s cursory memo (which merely states that “taking into consideration the Supreme Court’s and the Fifth Circuit’s ruling, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated”), it here relies more fully on the memo by former Secretary Nielsen, which justified the rescission on the basis that: “(1) a ‘broad-based and controversial’ policy like DACA should come from Congress instead of through agency action; (2) while agencies do have the ability to exercise prosecutorial discretion on an individualized, case-by-case basis, this was not the case with DACA; (3) DACA projects a message of nonenforcement of immigration laws; and (4) the Secretary of Homeland Security adequately weighed the reliance interests of the individual DACA recipients by permitting existing DACA recipients to avail of their present two-year term and also seek renewal for an additional two years within a limited window.”

The government is basically arguing that, because DHS was merely ending a program that it had unlawfully created, it was acting reasonably––and thus not in an “arbitrary and capricious manner.”

What are the states and the University of California arguing?

The DHS’s decision to rescind DACA is reviewable because it was premised upon a legal determination, not agency priorities.

The respondents argue that Secretary Duke’s memo did not provide a reasonable explanation for DACA’s rescission and that it was based on a legal determination by the agency, not on policy. They criticized the government’s reasoning that the decision was “necessary by law,” and argued that this was inherently not an exercise of discretion but rather a determination that the agency lacked any discretion at all. Therefore, the APA’s exception precluding judicial review of actions “committed to agency discretion by law” cannot apply because the agency claims that they had no discretion to begin with. Simply put: DHS cannot argue that they “had no choice” but to end the program while also saying that the Court “can’t review its decision” to end the program.

The DACA program is a lawful exercise of agency discretion because it allows for individualized determinations and is supported by a long history of similar actions.

California argues that the DACA program is not akin to a law passed by Congress because it does not guarantee that deferred action will be granted to individual applicants; rather, it is a broad exercise of prosecutorial discretion in that it creates a framework for immigration officials to make case-by-case individual assessments on whether to ‘defer action’ (according to the criteria set forth in the DACA program). Moreover, it argues that DHS and the former INS have utilized other programs to provide relief for a class of applicants with common characteristics, and that DACA fits squarely within this tradition.

The DHS’s decision to rescind the program was arbitrary and capricious because it failed to provide evidence of a well-reasoned rationale.

An agency’s rationale serves as the justification for its action and informs the public as to why they made a certain decision. When analyzing an agency’s rationale, courts will analyze the agency’s administrative record to find the contemporaneous thought process behind its action. California argues that the Duke memo was arbitrary and capricious because did not provide any evidence that the DHS meaningfully considered various factors (most pointedly, the reliance interest of DACA recipients). California further argues that the Nielsen memo should not be considered at all as it represents a “post hoc” (after the fact) rationalization” (after the fact) forcing the court to probe the minds of the decision-makers’ “contemporaneous thought process” after the agency action has been committed.

Essentially, to determine if the DHS decision was well-reasoned, they must know what DHS was thinking at the time it made the decision––not how it chose to characterize the action after the fact.

Do recent SCOTUS decisions give us any indication of how it will rule here?

The Supreme Court has recent precedent involving the degree of deference awarded the Trump Administration in the field of immigration. As we’ve seen in Trump v. Hawaii, the court deferred to the Trump Administration’s “travel ban” (or, at least, its third iteration of it). However, The administration was acting in an entirely different context there (suspending the entry of certain persons to enter the U.S. pursuant to specific statutory authority) than in the one before the Court now (the manner in which internal enforcement policies are created and ended).

Perhaps more relevant would be the Department of Commerce Et. Al. v. New York, in which the Court, as here, focused on the manner in which the government arrived at its decision to act. The Supreme Court held that, while it was proper for a citizenship question to be added to the census, the Court could review the manner in which the decision was made. “[T]he reasoned explanation requirement of administrative law is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.” The court ultimately found that the government’s motive was “pretextual,” meaning that its rationale was not truthful and concealed the government’s intentions behind its decision.

Similarly, California argues here that the move to rescind DACA was in fact motivated by discriminatory animus in that it mostly affects Latinos, a group it claims has been singled out by the Trump administration’s rhetoric in other contexts. In response, DHS argues that the rescission did not create a disparate impact on a particular ethnic group, and that the President’s statements were irrelevant in terms of establishing discriminatory animus because the decision-makers were Secretaries Duke and Nielsen. Moreover, as stated above, it asserts that sufficient evidence has been presented of its “genuine justifications” in a manner that was perhaps missing from Department of Commerce Et. Al. v. New York.

How may the Supreme Court’s ruling affect the use of executive authority?

The Supreme Court’s decision may play a role in broadening or narrowing the scope of the executive branch’s authority over immigration policies. The power to regulate immigration, while not expressly enumerated in the Constitution, is overseen by Congress. (See What if the President Did Try to Stop All Immigration). As the legislative branch, Congress has the power to pass laws that are then enforced by the President. As such, the President’s power to regulate immigration policies is delegated through statutory authorization (like the INA).

The Court’s analysis of DACA’s legality will impact the manner in which the President (through DHS) may enact policies that benefit a large category of immigrants. Did the Obama Administration have the authority to implement DACA in the first place? What is the scope of immigration policies that the executive branch can implement? If the executive branch can enact such a policy, what steps must it take to rescind it once many people are heavily reliant upon it?

How the Court balances these factors and interprets the APA may have a dramatic effect not just on a significant part of the U.S. foreign-born population, but on the scope of Presidential authority as well.