The Equal Protection Claim in the DACA Cases

SCOTUSBlog is featuring a symposium on the Supreme Court's decision in Department of Homeland Security v. Regents of the University of California, which held that the Trump  administration's attempt to dismantle the Deferred Action for Childhood Arrivals (DACA) policy was arbitrary and capricious in violation of the Administrative Procedure Act.    The symposium contributions come from public interest attorneys, state officials, law professors, and others and are well worth reading.

Nina Perales of the Mexican American Legal Defense and Educational Fund discusses a important issue in the Court's decision that is not getting much attention.  Part IV of Chief Justice Roberts' opinion, which is not joined by Justice Sotomayor and thus represents the views of only four justices, concludes that there was not sufficient facts pleaded to support the plausible inference that racial animus against Latina/os motivated the Trump administration's decision to end DACA in violation of the Equal Protection guarantee. Roberts specifically writes for the plurality that  the facts alleged fail to "raise a plausible inference that the rescission was motivated by animus."

Justice Sotomayor, who joined Chief Justice Roberts' opinion concluding that the rescission of DACA was arbitrary and capricious and therefore violated the Administrative Procedure Act, did not join Part IV of the opinion.  In her view, "[t]he complaints each set forth particularized facts that that plausibly allege discriminatory animus." 

In her contribution to the SCOTUSBlog DACA symposium, Nina Perales comments on the Equal Protection claim:

"The court did agree with the administration that the rescission challengers failed to plead sufficiently their claim of intentional racial discrimination. In order to reach this result, the majority had to brush aside the president’s statements that Latinos are `people that have lots of problems,' `the bad ones' and `criminals, drug dealers, [and] rapists.' However, it’s no coincidence that Latinos are located at the center of both of the court’s recent decisions on illegal agency actions. In [the 2019 ruling on the inclusion of a U.S. citizenship question on the 2020 Census], the administration sought to undercut Latino political representation, and in Regents, it sought to end protections for primarily Latino immigrant youth. Twice the administration made hasty, improper and injurious decisions aimed at Latinos and twice the court stepped in to enforce the basic requirements of the [Administrative Procedure Act]. The ball is once again in the administration’s court. Let’s hope our leaders abandon the effort to end DACA."

            The Equal Protection claim in the DACA rescission litigation deserves attention.  DACA provided relief to hundreds of thousands of young undocumented immigrants.  Close to ninety percent of the DACA recipients were Latinx, with the top four sending countries Mexico, El Salvador, Guatemala and Honduras.  Top Countries of Origin for DACA Recipients, Pew Research Center (Sept. 25, 2017).  Many other Trump immigration initiatives, such as removals, immigrant detention, ending Temporary Protected Status for Salvadorans, Hondurans, and Nicaraguans, the revamped public charge rule, and much more  for have had devastating impacts on Latina/o noncitizens and U.S. citizens.  The President's derogatory comments about Mexicans as criminals, MS-13 members as "animals," and El Salvador as a "s---hole" country whose citizens should not be afforded relief to stay in the United States, among many other comments, suggest that race influences his immigration views.

UPDATE (June 25):  A detailed post on George Washington Law Review On the Docket by two senior NAACP attorneys looks at the Equal Protection claim:

"Regents . . . . represents a troubling missed opportunity for the Court to confront the evidence that DACA’s rescission was motivated, at least in part, by unconstitutional racial animus. Rather than acknowledge the harms caused by statements of overt racial hostility by presidential candidates—and the constitutional significance of those statements—a plurality of the Court appears to have exempted such statements from meaningful scrutiny. As Justice Sotomayor pointed out, that decision cannot be squared with precedent. It also fails to recognize the severe consequences of racist campaign rhetoric and signals a troubling reluctance by the Court to fairly adjudicate race discrimination claims."

Laura Gomez also comments on the racial discrimination claim.

KJ