Friday, June 19, 2020
Guest Post: Minyao Wang, The Supreme Court Decides DACA Rescission Case on Administrative Law Grounds, Avoids Deciding Lawfulness of DACA
Guest Post: The Supreme Court Decides DACA Rescission Case on Administrative Law Grounds, Avoids Deciding Lawfulness of DACA by Minyao Wang
Yesterday, the U.S Supreme Court by a vote of 5 to 4 vacated the Trump administration’s termination of the Deferred Action for Childhood Arrivals (“DACA”) program. While the Court conceded that the administration has the ultimate authority to end DACA, it ruled that the procedural requirements of the Administrative Procedure Act (“APA”) were not satisfied. Under the Court’s decision, the administration will have an opportunity to terminate DACA again.
DACA was made necessary by the presence of a significant undocumented population in the United States. That population includes people who have been brought to the country by their parents at a young age. Under Plyler v. Doe, 457 U.S. 202 (1982), they enjoy a constitutional right to attend elementary and secondary school. According to one estimate, every year about 100,000 students lacking lawful immigration status graduate from U.S. high schools. At that point in their lives, they cannot work legally. Any plans for higher education are seriously complicated by their unlawful status and the resulting inability to obtain financial aid. Even if they manage to complete a college degree, their unlawful status will again disqualify them from finding work commensurate with their education. Prior to DACA, it was not uncommon to find people with college degrees working “under the table” in restaurants and construction sites across the country.
On June 15, 2012 (the 30th anniversary date of the Plyler decision), President Obama launched the DACA program. Specifically, the Department of Homeland Security (“DHS”) was instructed to issue employment authorization for a period of two years, subject to renewal, to people who came to the United States as children and met several eligibility criteria. Since the program’s inception, DACA benefit has been granted to almost one million people. DACA is a transformative success by allowing an entire generation of de facto Americans to pursue normal lives in the only country that they know, even though DACA cannot provide assurance that they can remain here permanently or lead to American citizenship.
In September 2017, eight months after taking office, the Trump administration announced its intent to end DACA. The lawfulness of that decision under the APA was the subject of today’s decision. The decision, formally captioned as Department of Homeland Security v. Regents of Univ. of California, is the rare judicial opinion on the arcana of the APA that has an immediate impact of the lives of so many people. Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, agreed that the decision to terminate DACA violated the APA.
The Court had to first address a gate-keeping question. The Trump administration invoked the administrative law principle that an agency’s decision not to institute enforcement proceedings cannot be reviewed by a court. But the Court held that this exception from judicial review is interpreted “quite narrowly.” DACA is reviewable because it is not a “passive non-enforcement policy” but instead a “program for conferring affirmative immigration relief.” The Court likewise rejected the contention that two jurisdiction-stripping provisions in the Immigration and Nationality Act (“INA”) precluded judicial review.
The Chief Justice then turned to the core legal issues. In September 2017, when the termination decision was made, Acting DHS Secretary Elaine Duke offered only one supporting rationale. She cited to a letter from then Attorney General Jeff Sessions that the Executive Branch has no authority to enact DACA.1 In June 2018, Ms. Duke’s successor, Kirstjen Nielsen, issued a new memo that provided additional policy reasons, independent of the program’s alleged illegality, to terminate DACA. The Court refused to consider the Nielsen memo, ruling that an agency “must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.”
The Court’s opinion then took an unusual turn. It declined to address whether DACA was a lawful exercise of Executive Branch authority, even though this central issue was comprehensively briefed by the parties and amici. According to the Court, because the INA provides (at section 103) that legal determinations by the Attorney General are “controlling,” Ms. Duke “was bound by the Attorney General’s legal determination” regarding DACA’s alleged illegality (emphasis added by the Court). The Court faulted the parties for not addressing this “unique statutory provision.”
Mr. Sessions’ letter to Ms. Duke declaring DACA unlawful was part of the appellate record before the Court. It is a bit mysterious as to why an INA provision regarding the allocation of authority between two cabinet officers would counsel against judicial review of a pure question of law. We can only hope that the Court did not mean because Congress had stated that a cabinet officer’s determinations are “controlling” no Article III court could review them. This is the second time in four years that the Court was not able to or refuse to squarely address the issue of executive authority in the field of immigration. In 2015, the Fifth Circuit in United States v. Texas enjoined the Obama administration from implementing Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) which would have provided DACA-like benefits to relatives of 4.3 million parents of U. S. citizens or lawful permanent residents. The Fifth Circuit concluded that DAPA could not be reconciled with the INA’s complex provisions on who can immigrate to the United States. An equally divided Supreme Court (after the death of Justice Scalia) affirmed without opinion, which carries no precedential value. The Fifth Circuit decision appears to be at odds with practices of administrations going back to the Eisenhower era and could threaten the flexibility of the President to deal with a future foreign policy crisis.4
Nevertheless, the Court found that the termination of DACA by Ms. Duke was arbitrary and capricious for two independent reasons. First, applying United States v. Texas, the Court concluded that the lower court had only invalidated the Executive Branch’s authority to grant benefits (for example, employment authorization) to undocumented foreign nationals independent of the INA. In the Court’s view, the Fifth Circuit did not disturb the Executive Branch’s authority to forbear from enforcing immigration laws with respect to any subset of foreign nationals. Ms. Duke’s failure to separate the benefit granting component of DACA from its forbearance component rendered her termination decision unlawful. But any forbearance-only program for DACA recipients would have been borderline meaningless because it would not have permitted them to work legally. This discussion in the opinion also arguably confers the Court’s imprimatur on the Fifth Circuit’s very narrow view of executive authority.
Second, the Court faulted Ms. Duke for failing to consider the significant reliance interests engendered by DACA. The Court noted that DACA recipients have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” of DACA’s continued viability. The Court hastened to add that those interests do not necessarily support continuation of DACA. Ms. Duke needed only to have weighed them against counter-availing policy arguments militating in favor of terminating DACA, which she clearly did not do.
The decision provides welcome temporary relief to DACA recipients whose lives could have been turned upside down by a contrary ruling. But the battle is far from over. The Trump administration is likely to try to terminate DACA for a second time and it will now know how to do so in a way that complies with the APA. Indeed, issuance of a beefed-up version of Ms. Nielsen’s memo may well be sufficient. And the Court’s punting of the legality question also deprives advocates for DACA of a powerful public relationship weapon. The administration’s central message has been that because DACA is its view illegal (even though it takes a very robust view of Executive Branch authority in other contexts), it has no choice but to terminate. Had the Court held that DACA was lawful, the administration would have been forced to explain why it was making a cruel policy choice that would be life-altering for so many people who grew up in the United States and pledged their allegiance to the American flag every day as school children.
1  The New York Times has reported that Ms. Duke, a career service DHS employee, refused to sign a policy memo to support the termination of DACA.
 In 2003, as part of the reorganization of the federal government after September 11, Congress transferred most immigration functions from the Department of Justice to the newly created Department of Homeland Security.
[3 Admittedly, the scale of DACA and DAPA (had it been implemented) would have dwarfed those of the earlier executive programs.
 For example, the Fifth Circuit decision could be read to prevent President Trump from permitting residents of Hong Kong to remain in the United States with work authorization if mainland China continued with its ongoing security crackdown.