Our country at this moment is deeply unsettled; we are struggling to respond to social justice movements, widely-recognized racial and economic disparity, and an ongoing and increasingly deadly pandemic. The Supreme Court’s decision yesterday to vacate the rescission of DACA is a welcome reprieve in a dark year, and one that deserves a moment of celebration—for now.
The topline issues the court addressed in this decision were: 1) whether the rescission of DACA was arbitrary and capricious in violation of the Administrative Procedure Act (APA), and 2) whether there existed a valid equal protection claim.
Although there is no question that the administration can legally rescind the DACA program, the court held today that the way the Trump administration ended the program was unlawful. In finding the agency decision to be arbitrary and capricious, the court reviewed the explanation then-Acting DHS Secretary Elaine C. Duke issued when announcing the phase-out of the DACA program in September 2017 (the Duke Memorandum).
According to the court, Duke’s decision making authority was bound, in part, by then-Attorney General Jeff Sessions’ determination that conferring federal and state benefits (like work authorization) through the DACA program was illegal — the substance of which was not addressed by this court. Yet Duke incorrectly relied on that conclusion to support the agency’s decision not to refrain from deporting DACA recipients once their status expired. Failing to appreciate the scope of her power to consider and address whether deferred action — the centerpiece of the DACA policy — should continue, and to address even the most rudimentary impacts of ending the program proved the justification unlawful.
In striking down the rescission, the court unavoidably lays out a clear pathway for the administration to abide by procedural requirements laid out in the APA in a future rescission. According to the court:
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. Alternatively, Duke might have considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen. Or she might have instructed immigration officials to give salient weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion. Pp. 26.
In response to a D.C. Circuit Court decision (NAACP, No. 18–588) in June 2018, Duke’s successor, then-Secretary Kirstjen Nielsen, provided additional rationale in support of ending the DACA decision (the Nielsen Memorandum). Even though the court refused to consider the Nielsen Memorandum for this case because it was submitted “post hoc,” or after the case was filed, it provides ample content for a fortified future rescission. In addition to reiterating the administration’s line on DACA’s legal dubiousness, the Nielsen Memorandum highlights the necessary policy reasons for ending the program. These include that class-based immigration relief should come from Congress, and that deferred action adjudications should be made at the discretion of prosecutors on a case-by-case basis.
Of note, the opinion only cursorily addressed — and ultimately dismissed — the claim that the DACA program’s rescission violates the equal protection guarantees of the Fifth Amendment. Rejecting claims that the President pursued the rescission of the program out of animus for the Latino population from Mexico, the court highlights that the statements made by then-candidate Trump were not contemporaneous to the agency action enough to warrant a finding of animus. In the opinion drafted by Justice Sotomayor (concurring in part, concurring in the judgment in part, and dissenting in part), she first highlights that dismissal of the claim is procedurally premature. Importantly, she notes that no Supreme Court precedent supports disregarding campaign statements as remote in time from later-enacted policies that arise in related contexts.
In the lengthy opinion drafted by Justice Thomas, with whom Justice Alito and Justice Gorsuch joined, (concurring in the judgment in part and dissenting in part), he highlights potential implications for future administrations’ agency rulemaking, which may be bound by policy justifications of a previous administration, as opposed to agency determinations of illegality. It is a valid consideration (even outside of the context of immigration), but still requires a determination that the DACA program is indeed substantively unlawful, which was not the question before the court in this case.
Hours after the ruling was issued, President Trump tweeted, “As President of the United States, I am asking for a legal solution on DACA, not a political one, consistent with the rule of law. The Supreme Court is not willing to give us one, so now we have to start this process all over again.” In formal statements, Acting Secretary Chad Wolf confirmed the lack of certainty for DACA recipients after the ruling, reiterating that the “DACA program was created out of thin air and implemented illegally.” Acting Deputy Secretary Ken Cuccinelli went further, calling the decision “an affront to the rule of law.”
Relying on the court’s blueprint, the administration could (and almost assuredly will) end the DACA program again. Unfortunately, a new repeal would likely survive a challenge by articulating a clear policy rationale and mitigating the impacts to DACA recipients that have relied on the long-standing program.
There is some debate about whether the administration must submit a new rescission for a notice and comment period. To do so would necessarily extend the time before the administration could shut down DACA, potentially after elections, but it would largely be pretextual for the administration. It is highly unlikely that they will substantively address well-known concerns and rationale for preserving the program. In the court’s decision, they briefly address the failure of previous challenges to notice and comment, but do not address the legitimacy of those claims, leaving the question without answer.
Of course, the impetus now falls once again on Congress. New evidence overwhelmingly supports permanent protection of Dreamers —regardless of political party — which can only be meaningfully accomplished by congressional action. We’re continuing to work alongside lawmakers on a narrow solution that provides a permanent answer to a nearly two-decades-old policy challenge.