DACA recipients earned a minor victory last week in their fight to maintain the program. On June 18, 2020, the Supreme Court narrowly ruled against the Department of Homeland Security in a 5-4 vote, concluding that the rescission of DACA was unlawful.
In 2012, the DHS under President Barack Obama established DACA, the Deferred Action for Childhood Arrivals program. The program allows some unlawful residents who entered the United States as children to apply for a two-year deferral of deportation, so these residents can apply for a work permit to remain in the United States.
Two years later, in 2014, the Obama administration announced expansions for DACA eligibility as well as a new program, DAPA, which offered the same protections outlined in DACA to parents of U.S. citizens or lawful residents. Following this announcement, Texas, along with 25 other states, secured a nationwide preliminary injunction barring implementation of the DACA expansion and DAPA. The Fifth Circuit upheld the injunction, reaching the conclusion that the program was in violation of the Immigration and Nationality Act (INA).
In June 2017, shortly after President Donald Trump took office, the DHS rescinded the DACA expansion and the DAPA memorandum, citing the Fifth Circuit’s opinion and noting the programs were not likely to succeed in future case proceedings. Three months later in September 2017, the DHS issued the Duke Memorandum which rescinded DACA, claiming the program was unlawful.
Several groups challenged the Trump administration’s decision, claiming the action was “arbitrary and capricious” and consequently violated the Administrative Procedure Act (APA). Further, plaintiffs claimed the memorandum infringed the equal protection guarantee of the Due Process Clause in the Fifth Amendment.
District courts in California, New York, and Washington D.C. ruled for the plaintiffs, rejecting the government’s INA argument.
During these district court proceedings, the DHS issued a second memorandum, the Nielsen Memorandum, reaffirming the reasoning laid out in the Duke Memorandum and offering other legal justifications for their decision to end DACA. Still, the district courts ruled the DHS had violated the APA by failing to adhere to proper procedural requirements.
The Trump administration appealed these decisions and filed petitions for certiorari in all three cases. The Ninth Circuit in California granted the government’s petition, which brought the case to the Supreme Court.
Although, politically speaking, DACA is a program that sparks intense debate, this case is not concerned with the legality of the program itself. Rather, it focused on whether or not the DHS abided by proper procedure when the department took action to rescind DACA.
Delivered by Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor in part, the majority opinion vacated in part, reversed in part, and remanded the three district court cases under review. The majority concluded that the DHS did violate the APA in that their decision to end DACA was “arbitrary and capricious” without adequate justification in either memorandum.
Concerning the Nielsen Memorandum, Chief Justice Roberts wrote that while loosely based on the Duke Memorandum, it “offered three ‘separate and independently sufficient reasons’” that qualify as “post hoc rationalizations.” Therefore, the majority did not classify the Nielsen Memorandum as relevant evidence.
Justice Sotomayor delivered an opinion concurring in part and dissenting in part. While she concurred with the majority’s ruling regarding the APA violation, Sotomayor found the decision to prohibit any arguments against the rescission under the Equal Protection Clause “premature” and “unwarranted.” She would prefer that the respondents were permitted to bring forth relevant claims under this clause in remand.
Also concurring in part and dissenting in part, Justice Thomas, joined by Justices Alito and Gorsuch, noted that the Trump administration attempted to end DACA the same way it began, via executive branch memorandum. Further, the opinion found the second memorandum to be sufficient justification for the rescission. Based on this evidence, Thomas concluded that the rescission is not reviewable under the APA.
In a brief opinion concurring in part and dissenting in part, Justice Alito emphasized his broader concerns with the role of the federal judicial system. He noted that after just “one of nearly 700 federal district court judges” blocked the DHS from rescinding DACA, the case carried on for essentially an entire presidential term.
Like Justice Thomas, Alito found the actions of the DHS not reviewable under the APA. He then referred to evidence discussed in Justice Kavanaugh’s opinion to support his conclusion that the rescission was not “arbitrary and capricious.”
Finally, Justice Kavanaugh also delivered an opinion concurring in part and dissenting in part, taking issue with the majority’s classification of the Nielsen Memorandum as a “post hoc justification.” From his view, the decision to remand these cases amounts to an unnecessary delay because in those future proceedings, the DHS will simply rely on the legal justifications explained in the Nielsen Memorandum for their argument. Had the court considered the Nielsen Memorandum valid, that judgment to be made some time in the future could already have been delivered.
In the majority opinion, Chief Justice Roberts addressed this objection, conceding that procedural requirements often appear largely unproductive. The Chief Justice wrote that adhering to procedure works to “promote ‘agency accountability,’” by allowing the public to respond to the actions of a government agency. Moreover, this precedent helps to avoid the issue of having “to chase a moving target” during proceedings due to government agencies updating their legal justifications for their actions throughout a trial. For Roberts, this amounted to an issue of timing. Justice Kavanaugh found no issue with the timing of the Nielsen Memorandum in his opinion.
Although he was not in the majority, Justice Kavanaugh described a scenario that could very well play out in remand. The DHS will likely rely on the justification detailed in the Nielsen Memorandum to bolster their argument as to why DACA is unlawful. The Court’s recent opinion seems to be merely a speed bump on the Trump administration’s path to eliminating the program.