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U.S. Supreme Court Rules 5-4 Against Termination of “DACA” / “Dreamers” Immigration Program

by D. Gregory Valenza | |

The U.S. Supreme Court ruled that the Trump administration did not properly follow procedures required to end the immigration non-enforcement programs called “DACA” and “DAPA.”  To remind you what we’re talking about –

Deferred Action for Childhood Arrivals (DACA),…allows certain unauthorized aliens who arrived in the United States as children to apply for a two-year forbearance of removal. Those granted such relief become eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity. Two years later, DHS expanded DACA eligibility and created a related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). * * * *

 that program would have made 4.3 million parents of U. S. citizens or lawful permanent residents eligible for the same forbearance from removal, work eligibility, and other benefits as DACA recipients. 

The DAPA program was never actually implemented nationwide, because of litigation and an injunction that has been pending, as well as the new administration’s rescission.   “DACA” creates the individuals known as “Dreamers” and was implemented.  There are Dreamers permitted to work while action on their immigration status is “deferred” or not enforced.

Although you may hear otherwise, this case is not about immigration law, or whether “DACA” or “DAPA” are lawful under immigration law.  Rather, this case is about how the administration went about rescinding these programs.  The “Administrative Procedure Act” is a law that requires certain procedures when the Executive Branch implements or rescinds rules such as DAPA and DACA.  The Court’s focus here was that the government did not adequately follow that rule.  Thus, as the Court noted,

The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.

The Court’s majority held that the government was supposed to follow the APA and did not comply.  Executive actions under the APA are upheld unless “arbitrary and capricious,” which is a pretty deferential standard. Because the Department of Homeland Security’s initial grounds for rescinding the programs were inadequate under the APA, the Court held they were “arbitrary and capricious.”

when an agency rescinds a prior policy its reasoned analysis must consider the “alternative[s]” that are “within the ambit of the existing [policy].” Id., at 51. Here forbearance was not simply “within the ambit of the existing [policy],” it was the centerpiece of the policy: DACA, after all, stands for “Deferred Action for Childhood Arrivals.” App. to Pet. for Cert. 111a (emphasis added). But the rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits. Duke “entirely failed to consider [that] important aspect of the problem.” State Farm, 463 U. S., at 43. 

That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious. But it is not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996). 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.’” Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___ (2016) (slip op., at 9) (quoting Fox Television, 556 U. S., at 515). “It would be arbitrary and capricious to ignore such matters.” Id., at 515. Yet that is what the Duke Memorandum did. 


DACA was rescinded because of the Attorney General’s illegality determination. See ante, at 20. But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA. 

The Court, however, soundly rejected the attempt to argue that the rescission of DACA and DAPA could be attacked as an Equal Protection Clause violation. Only four justices signed that part of the opinion.  But 8 justices concurred in the judgment that the Equal Protection claim did not fly.  (Only Justice Sotomayor dissented from this section of the opinion, arguing in favor of an EPC violation, resulting in just four signatories to that part of the majority opinion.  The justices who dissented from the majority agreed with the conclusion that the Equal Protection challenge failed, as did Justices Ginsberg, Kagan, and Breyer).  The crux of Justice Sotomayor’s argument was that DACA and DAPA primarily helps Mexican and other latin countries’ immigrants, and that discrimination motivated the rescission.  Advocates for the immigrants cited to President Trump’s statements and other indications that the administration was anti- immigrant from Mexico and other latin-American countries.  Analyzing how Equal Protection Claims are litigated, 8 justices held the allegations were insufficient to meet the applicable legal standards.

Bottom line is that the DHS could have rescinded DACA and DAPA, but DHS failed to do so correctly under the APA.  DHS apparently concluded its decisions were unreviewable under exceptions to the APA and so it was not bound to follow it.  But the Court was not having that argument either.  The Court actually sent the case back to the DHS to articulate anew its reasons and satisfy the APA. It remains to be seen whether the agency will do so before the November election.

So, for now, “Dreamers” will continue to enjoy the status created by the DACA program, and the DAPA program may be implemented.  However, the government may or may not try again to rescind the programs, this time with proper adherence to the Administrative Procedure Act.  Or, perhaps Congress will step in and pass legislation addressing DACA / DAPA.

Chief Justice Roberts wrote the majority opinion, joined by Justices Ginsberg, Breyer, Sotomayor, and Kagan.  There were three dissents.  Justice Thomas, writing for Justices Alito and Gorsuch, argued that the rescission of the DACA program followed the same procedure by which it was implemented – without Administrative Procedure Act constraints:

Between 2001 and 2011, Congress considered over two dozen bills that would have granted lawful status to millions of aliens who were illegally brought to this country as children. Each of those legislative efforts failed. In the wake of this impasse, the Department of Homeland Security (DHS) under President Barack Obama took matters into its own hands. Without any purported delegation of authority from Congress and without undertaking a rule-making, DHS unilaterally created a program known asDeferred Action for Childhood Arrivals (DACA). The three-page DACA memorandum made it possible for approximately 1.7 million illegal aliens to qualify for temporary lawful presence and certain federal and state benefits. When President Donald Trump took office in 2017, his Acting Secretary of Homeland Security, acting through yet another memorandum, rescinded the DACA memorandum. To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.

Justice Thomas’s lead dissent’s primary argument was that because DHS’s initial program was illegal, rescission of that policy was not subject to the APA. Justice Thomas’s dissent also points out that under the majority’s reasoning, any administration can implement policies through “memoranda” or other orders without statutory authorization, but a new administration then has to follow the APA to rescind them. Justice Alito and Kavanaugh wrote separate dissents, amplifying on these points and making others. Those interested in the whys and wherefores can read them at the end of the opinion.

This case is DHS v. Regents of the Univ. of Cal. and the opinion is here.

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