Breaking the hearts of conservatives for the second time in a week, Chief Justice John Roberts penned a 5-4 majority decision striking down the Trump Administration’s 2017 rescission of the Deferred Action for Childhood Arrivals (DACA) program. However, all parties and all nine Justices of the Supreme Court of the United States (SCOTUS) agreed that The President had the legal power to stop DACA. Plaintiffs challenging the Department of Homeland Security’s (DHS’s) decision to rescind the DACA program nonetheless successfully argued that the Department of Justice lawyers ordering the rescission (because DACA was assertedly illegal in the U.S. Department of Justice’s view) simply went about it the wrong way pursuant to the Administrative Procedure Act (APA):

“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.” (Slip Opinion at pg. 9)

The 74-page case decision is the Department of Homeland Security, et al. v. Regents of The University of California, et al.

The Court decision may be a pyrrhic victory for DACA advocates since President Trump roared back that his Administration would take another run at ending DACA.  Significantly for employers and the so-called “Dreamers” (children of illegal aliens born in the United States and raised here all their life), DACA consisted of three different entitlements at-issue in the litigation:

  • Allowed ultimately about 700,000 “unauthorized aliens to apply for a two-year forbearance of removal” (i.e., an exercise of DHS’s prosecutorial discretion to delay deportations of these 700,000 unauthorized aliens for two years);
  • Those granted “forbearance” (i.e., not immediately deported) were entitled to work authorizations, despite being “unauthorized aliens”; and
  • Those granted “forbearance” were entitled to certain valuable state and federal benefits during their unauthorized stay in the United States, including Medicaid and Social Security.

Important to understanding this decision is understanding the SCOTUS’s 2016 decision in the related DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) litigation United States v. Texas, 579 U.S. (2016). In that case, the SCOTUS affirmed the lower Court’s opinion in a 4-4, one-sentence per curiam opinion, which had the legal effect of striking down DAPA (Justice Scalia had heard the case, but subsequently died before the decision, thus leaving only 8 Justices on the SCOTUS). A split conclusion on the SCOTUS causes the lower Court decision to stand and be the law of the case.

In the U.S. v. Texas  DAPA case, twenty-six states, led by Texas, sued the Department of Homeland Security and the Obama Administration to stop the benefits entitlements President Obama had ordered and which would impact state taxpayers. The states did NOT challenge; however, DHS’s discretion not to deport parents who were unauthorized aliens. The Fifth Circuit Court of Appeals, sitting in New Orleans, had held on the case on its way up to the SCOTUS that DAPA violated federal law AS TO the state and federal benefit entitlements (i.e., Medicaid, Social Security, workers compensation, unemployment insurance, etc.), which the Obama Administration attempted to provide via Executive fiat to the up to 4.3 million parents of Dreamers.

The Fifth Circuit held that President Obama’s decision to inaugurate DAPA in the absence of any federal statute so authorizing and also in defiance of federal immigration law (the Immigration and Nationality Act) which spelled out a carefully constructed and detailed hierarchy of benefits for legal immigrants was illegal. SIGNIFICANTLY, HOWEVER, the Fifth Circuit did not strike down DHS’s “forbearance” of DAPA beneficiaries (i.e., the decision to exercise the Department’s prosecutorial discretion not to deport the illegal alien parents of DREAMERS). The SCOTUS decision affirming the Fifth Circuit decision nonetheless had the effect of killing the entire DAPA program dead in its tracks.

Nonetheless, as the Trump Administration then took office, the new Attorney General (AG) of the United States wrote a memorandum to the Acting Trump Secretary of DHS (Secretary Elaine C. Duke) and suggested she rescind the Department’s DACA program in light of the Fifth Circuit’s DAPA decision which the AG said found DAPA illegal. Thus, Secretary Duke had no discretion to apply since the AG had determined DACA unlawful for the same reasons the AG reported the Fifth Circuit to have found DAPA unlawful. Accordingly, Secretary Duke complied and began an orderly shutdown of the DACA program.

Three lawsuits challenging DHS’s shutdown of DACA caused two of those courts to enter nationwide injunctions against the shutdown. So, while DAPA was dead, the DACA program has continued, including the forbearance for two years, work permit authorizations and Social Security and Medicaid entitlements, etc.


Thursday’s Decision

Background Note: The APA: “sets forth the procedures by which federal agencies are accountable to the public, and their actions [are] subject to review by the courts.” (citation omitted). It requires agencies to engage in ‘reasoned decision making,’ (citation omitted) and directs that agency actions be ‘set aside’ if they are ‘arbitrary’ or ‘capricious,’ 5 U. S. C. §706(2)(A). Under this ‘narrow standard of review, . . . a court is not to substitute its judgment for that of the agency,’ (citation omitted), but instead to assess only whether the decision was ‘based on a consideration of the relevant factors and whether there has been a clear error of judgment’ (citation omitted). (Slip Opinion at p. 9)

The SCOTUS on Thursday issued three distinct legal holdings:

  1. DHS’s rescission decision was reviewable by the Federal Courts pursuant to the APA and was within the SCOTUS’s jurisdiction. (The Trump Administration had argued that the rescission decision was subject to the unfettered discretion of the DHS Secretary AND thus not subject to APA review by the Courts. However, Justice Roberts and the Majority concluded that DACA was not just a non-enforcement program (which would have likely been the sole province of the DHS’s discretionary decision-making not subject to judicial review), but it also involved substantial other issues beyond just mere “forbearance,” including benefit entitlements under state and federal laws).
  2. DHS’s decision to rescind DACA was “arbitrary and capricious” under the APA. WOW! That is a slap in the face both to the lawyers engineering the rescission, but also to the lawyers later defending this losing case. The Court held that DHS’s rescission action was simply not adequately explained. The Government attempted to broaden Acting Secretary Duke’s rescission decision which she said hinged on the Attorney General’s determination that DACA was unlawful based on the Fifth Circuit’s decision in the DAPA case. (That case decision held only, however, that the benefits entitlements of the DAPA program were illegal and in conflict with federal immigration laws the Congress had passed). The SCOTUS rebuffed later attempts by the Government in the DACA case to broaden the number and types of Secretary Duke’s reasons for rescinding DACA through a subsequent Secretary of DHS. But, critically, that follow-on DHS Secretary did NOT create a new Rescission Rule (through the ADA Notice and Comment period…another lawyer failure) and thus did not properly build the broader record the Government later attempted to bolt on to Secretary Duke’s rescission explanation. But not so fast, APA case law has been clear for decades:

    “It is a ‘foundational principle of administrative law’ that judicial review of agency action is limited to the ‘grounds that agency invoked when it took the action.’” (Slip Opinion at p. 13)

    In other words, after-the-fact “post hoc” rationalizations don’t cut it. The agency rescinding a Rule has to spit it all out at the time it rescinds so a reviewing court can judge the quality of the agency’s deliberation leading up to its decision to rescind.

    The Majority also noted that there were many things DHS Secretary Duke could have and should have considered before rescinding DACA. These considerations included whether the DACA beneficiaries had relied on the benefits of the DACA program and how to weigh those “reliance interests” in the calculus to rescind the program. Also, the Majority faulted Secretary Duke for not considering a broader renewal period based on the need of DACA recipients to reorder their affairs. And finally, the Majority wondered out loud why Secretary Duke had not instructed immigration officials to weigh and balance reliance interests when exercising individualized enforcement discretion.

    “But, because DHS was not ‘writing on a blank slate’…it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.” (Slip Opinion at p. 26.)

    Doesn’t this holding remind you of another U.S. Department of Justice train wreck case decision involving an attempted reversal of a controversial Obama Administration employment action? Please recall Judge Tanya Chutkan’s decision in the EEO-1 Component 2 litigation in which she held that the EEOC and Office of Management & Budget had declined to sufficiently spell out the reasoning underlying the Commission’s pullback of the Component 2 “hours worked” and “pay data” reporting. Judge Chutkan thus found the EEOC’s rescission of the Obama Component 2 reporting requirement was “arbitrary” and “capricious.”

  3. The SCOTUS majority and all other Justices, other than Justice Sotomayor, rejected out-of-hand the Plaintiffs’ claim that the rescission violates the Equal Protection guarantee of the Fifth Amendment, finding the claim did not establish a “plausible” claim.

    So, What’s Next?

  1. DACA will continue unless and until DHS issues a Proposed (and then Final) Rule to Rescind DACA, and survives legal challenge.
  2. Employers of Dreamers holding work authorizations need not fear the loss of their Dreamer employees at any time in the near future. Dreamers will, however, roll out of status upon the expiration of their 2-year forbearance and will have to find alternative means to keep lawfully working, per DACA. Employers should also be diligent to follow unfolding political developments as to the DACA program. Round two now begins.
  3. DACA will now become (has already become) an issue in the Presidential Campaign.
  4. The Presidential election in November will decide the DACA issue since its continued existence, expansion, or rescission is subject to the President’s decision-making.
  5. If a Democrat wins The White House in November (effective January 20, 2021), Democrats will renew efforts to revive DAPA through a proper APA Notice and Comment process, AND will seek to expand DACA to extend citizenship authorization to all “Dreamers.”
  6. Lastly, the DACA/DAPA issues will likely unfold and conclude between now and 2022 or even 2023, regardless of the November Presidential election since all paths forward lead to certain litigation.
John C. Fox
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