Constitutional Law

5-4 SCOTUS Upholds DACA: Admin Had No Right to Terminate Program

Another day, another big loss for the Trump Administration and I would argue another great win for American society. In a 5-4 vote, with Chief Justice John Roberts joining the liberal wing of the Court to form a majority, the Supreme Court blocked the Trump administration from ending the Deferred Action for Childhood Arrivals (DACA) program that allows nearly 700,000 young, undocumented immigrants to live and work in the United States without fear of deportation.

A signature accomplishment of the Obama Administration, in 2012 the Department of Homeland Security (DHA) issued the DACA program which authorized undocumented aliens in the United States who had arrived here as children to have a two-year renewable forbearance from deportation. That allowed them to get work authorizations and obtain certain Federal benefits. Then in 2014, the program was proposed to be expanded to include parents of DACA members; that program was called DAPA. Texas sued to stop implementation of DAPA and SCOTUS upheld lower court’s injunction barring the program as violating the Immigration and Nationality Act which had set out guidelines for eligibility of benefits.

Then of course, there was a change of administration in 2017. DHS rescinded DAPA based on the Federal litigation. Attorney General Jeff Sessions then issued a letter to DHS stating that DACA suffered from the same legal failings as DAPA and DHS rescinded DACA, providing one final window for those already receiving its benefits to get an extension. Several States sued saying DHS’s decision was “arbitrary and capricious.”

This decision is the culmination of that litigation and the case is entitled Department of Homeland Security v, Regents of the University of California. The various respondents raised two arguments: (1) That the decision violated the Administrative Procedures Act and (2) That the decision violated the Fifth Amendment’s guarantee of equal protection under the law.

Justice Roberts’ Opinion Joined by Breyer, Ginsburg, Kagan, and Sotomayor (except as to Part IV)

Roberts largely focused on how DACA was undone. Acting DHS Secretary Elaine Duke guided by Sessions’ letter and the SCOTUS decision issued a memorandum that found that DACA was illegally enacted. That was it. When new Acting DHS Secretary Kristjen Nielsen took over, she declined to issue a new decision but said she was relying on the Duke memo and then issued an opinion with three further reasons for terminating DACA, even though there was pending litigation over the Duke memo..

Roberts said that was wrong. He stated that a government agency must rely solely on the reasons given at the time it decided to act and that Nielsen’s relying on the Duke memo and then adding three additional explanations – without issuing an entirely new decision that would be subject to judicial review by the courts – was improper. He acknowledged that while it may seem a highly procedural technicality to hang his hat on, he noted the importance of propriety and following rules when acting as the government and the importance and impact of the decision on the 700,000 DACA recipients and 4.3. Million potential DAP recipients, citing a legendary lion of the Supreme Court:

Justice Holmes famously wrote that “men must turn square corners when dealing with the Government.” But it is also true, particularly when so much is at stake, that the Government turn square corners when dealing with the people. The basic rule here is clear: An agency must defend itself 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.

He also noted that Duke’s decision was “arbitrary and capricious” because it failed to fully consider the impact of her decision and consider alternative, less restrictive means. While acknowledging that it was the attorney General’s sole prerogative to determine whether a Federal program was illegal, it was DHS’ role to determine how to implement the unwinding of it. The Fifth Circuit’s decision SCOTUS upheld and the Attorney General’s opinion on illegality only dealt with one element of DACA and DAPA – receipt of Federal benefits. But the DHS memo also dis away with the most important feature of DACA and DAPA – forbearance from deportation. Wiping out this provision without any basis was “arbitrary and capricious.” This is especially so when prior SCOTUS opinions have held that when an agency rescinds a prior policy it must consider alternatives that exist “within the ambit of the prior policy.” When you think about it, this reasoning is a smart stop-gap for wholesale policy swaps when new administrations come in. The new administration must not just provide a sound basis for the reversal but determine whether another alternative can exist short of full rescission.

Roberts also stated that there was no evidence that Duke had considered whether there was significant reliance on the original DACA memo that created the program – another prerequisite under prior SCOTUS decisions dealing with administrative reversals. The States had pointed out that since DACA was started hundreds of thousands of DACA recipients have gone to college, started businesses and that rescinding the program would impact American citizens as many businesses and schools employ DACA members. The States calculated that taking DACA members out of the economy would result in a loss of $215 billion in economic activity with a resulting loss of $60 billion in federal tax revenue. As Roberts said ” there was a lot to consider” in this area and DHS did not take it into account at all.

In Part IV of the opinion , Roberts said there was no basis however to find that the decision was based on racial animus towards Latinos. He noted that obviously due to circumstances, the Latino population was mostly affected by DACA and its rescission. But that does not mean the decision targeted Latinos specifically. And while the Court acknowledged that President Trump made racially charged comments against Latinos, they were too remote in time from the time of the action and about unrelated issues so as to ascribe discriminatory intent on DHS’s part. He therefore dismissed the equal protection arguments.

Chief Justice John G. Roberts.

Justice Sotomayor’s Concurrence

Sotomayor would have allowed the equal protection argument to move forward. She noted hat all the courts below found sufficient evidence to meet the minimum pleading threshold and stated that the respondents should have the opportunity to flesh out the argument in the lower courts.

She cited many of President Trump’s statements that “illegal aliens” are “animals” “drug dealers” “rapists” etc. She noted that stopping Mexican immigration was a cornerstone of Trump’s campaign and policy once in office. She said this alone was enough to make out a claim that the President’s words were proof of “discriminatory animus” being a basis for the DACA rescission. She added that the majority too quickly did away with the argument that Latinos would be disproportionately affected. That too had to be viewed in context of the racial statements made by the President. She argued that at this early stage of the litigation (motion to dismiss the complaint) it was wrong not to let the respondents try to prove this part of their case.

She noted that as late as June 2017, DHS issued a statement saying it remained committed to maintaining DACA even after it rescinded DAPA. A short three months later, it rescinded DACA without any of the considerations required under the law. She stated:

The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. . .It raises the possibility of a significant mismatch between the decision made and the rationale behind it.

NOTE: The below opinions are discussed as dissents though technically they also concurred in the decision of Roberts that the Equal Protection Clause did not apply. That portion of the Roberts decision was decided 8-1 with Judge Sotomayor being the lone dissent.

Justice Thomas’ Dissent, joined By Alito and Gorsuch

Justice Thomas starts out by saying its “mystifying that the Court would take this position when DACA was created by President Obama via a memorandum from DHS and then rescinded by President Trump by a memorandum by DHS. He says since DACA was created without statutory authority and outside the ordinary rulemaking process it was illegal from the beginning. The Court should not scrutinize why and how an agency decides to rescind an illegal action as long as the determination that it was illegal was sound.

In a thorough, well-written, well-reasoned, decision, he takes the reader through DACA’s history which was labeled a “prosecutorial discretion decision” by the DHS Secretary Janet Napolitano which does not confer any new rights or substantive benefit to the DACA/DAPA class, but which Thomas says in fact created a new class of non-removable aliens; Congress and only Congress has the right to amend or expand the Immigration and Nationality Act.

I have to agree with Justice Thomas that its a bit of a stretch to say that DACA confers no new rights as to the benefits portion of the law, but as to the forbearance section, that restricts what the government will do not what rights the aliens have. So while the forbearance portion ultimately results in DACA members having the right to stay, that’s only because DHS is making a decision not to deport them,, not because they have been included in the INA.

He noted that DHS undertook none of the required rule-making steps under the APA before issuing the DACA memorandum and that alone provides another reason for rescission. And as for Roberts’ arguments on reliance, he notes that no one has a right to rely on an illegal law and that in any event even the DHS memorandum states that it can be rescinded at anytime. He states:

Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision

Justice Alito dissenting

Justice Alito wrote a one page separate dissent to point out that the system as he sees it is broken when it comes to this issue. He notes that DHS almost at the start of the Trump presidency rescinded DACA. Here it is near the end of Trump’s first term, Alito states, and this Court just bounced it back for more determination: “Our Constitutional system is not supposed to work that way.” He also says the case is simple even if you don’t believe DACA was illegally enacted (as he believes). If DACA was an exercise of prosecutorial discretion, then its rescission is also a decision of prosecutorial discretion.

Justice Kavanaugh, dissenting

In his dissent, Justice Kavanaugh does not say DACA was illegal from the start. He instead focuses on the Roberts’ decision that the original DHS memo rescinding it did not state sufficient reasons or give sufficient clarity. While Roberts says that the Nielsen memo came too far after the original one to be considered, Kavanaugh says the Court should be more practical and consider it now that the issue is before the Court..

So he says that because the Nielsen memo more fully complies with the APA and provides clarity and a rational basis for rescinding DACA, the rescission should be upheld.

Much like he did in this weeks earlier decision on LGBTQ rights, Kavanaugh again took pains to express that he understand the issues and concerns but lays it on the fault of Congress for deciding how to address the issue once and for all:

For the last 20 years, the country has engaged in consequential policy, religious and moral debates, about the legal status of millions of young immigrants who, as children, were brought to the United States and have lived here ever since. . . They live, go to school, and work here with uncertainty about their futures. Despite many attempts, Congress has not yet enacted legislation to afford legal status to those immigrants. . . .That uncertainty is a result of Congress’ inability thus far to agree on legislation which in turn has forced successive administrations to improvise thereby triggering many rounds of endless litigation with the prospect of more litigation to come. In contrast, . . . Article I legislation . . could produce a sturdy and enduring solution to this issue, one way or the other, thereby remove the uncertainty that has persisted for years for these young immigrants and the Nation’s immigration system.


All the judges would agree that they would love for the Congress to finally make DACA law (or not). But with a divided Congress, that will never happen. Say what you like about Thomas and the others who voted against it, but it was a Constitutional stretch to say DACA was not an executive reach into the legislative process; sure I could certainly rationalize it and easily argue why it was authorized. But the arguments raised by Thomas in his decision have a sound basis as well. It all comes down to how you view DACA (as law or as discretionary agency authority).

And I agree with Justice Kavanaugh that this decision only prolongs the legal limbo that DACA members live under. While it is worthy to celebrate this temporary reprieve, it falls far short of a legislative change to the INA. We need the Senate to approve the proposed DACA legislation that has been repeatedly referred to them by the House. Then it will fall on the President to veto or sign it into law.

Read the full decision here:

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