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The DACA Case and the Federal APA

On June 18, the United States Supreme Court released its opinion in Department of Homeland Security v. Regents of the University of California, which held that the Trump Administration’s move to rescind Deferred Action for Childhood Arrivals (DACA) was arbitrary and capricious, and therefore failed.

 In 2012, the Department of Homeland Security (DHS), under the Obama administration, issued a memorandum outlining the DACA program, which deferred any immigration action on illegal immigrants who arrived in the U.S. as children or young adults, among other benefits. In 2017, DHS, now under the Trump administration, issued a memo rescinding DACA. This action was challenged in court, and multiple cases were consolidated on certiorari.

The majority opinion concludes that the attempted rescission of DACA was arbitrary and capricious because the memo that rescinded it did not properly weigh all of the interests involved in doing so. The Court is essentially saying that once an agency has put out a policy, people will rely upon it and interests surrounding that policy will be created. Therefore, if the agency wants to rescind that policy in the future, they must consider those interests during that decision.

The basic rule here is clear: 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.

Pg. 17

Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only “disallow[ing]” benefits. It did “not cast doubt” on the legality of forbearance or upon DHS’s original reasons for extending forbearance to childhood arrivals. Thus, given DHS’s earlier judgment that forbearance is “especially justified” for “productive young people” who were brought here as children and “know only this country as home,” the DACA Memorandum could not be rescinded in full “without any consideration whatsoever” of a forbearance-only policy.

Pg. 22 (internal citation omitted)

DHS has considerable flexibility in carrying out its responsibility. The wind-down here is a good example of the kind of options available. Acting Secretary Duke authorized DHS to process two-year renewals for those DACA recipients whose benefits were set to expire within six months. But Duke’s consideration was solely for the purpose of assisting the agency in dealing with “administrative complexities.”

Pg. 25

Had Duke [Former United States Deputy Secretary of Homeland Security] considered reliance interests, she might, for example, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. Alternatively, Duke might have considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen. Or she might have instructed immigration officials to give salient weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion. To be clear, DHS was not required to do any of this or to “consider all policy alternatives in reaching [its] decision.” State Farm, 463 U. S., at 51. Agencies are not compelled to explore “every alternative device and thought conceivable by the mind of man.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 551 (1978). But, because DHS was “not writing on a blank slate,” post, at 22, n. 14 (opinion of THOMAS, J.), it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.

The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination. See ante, at 20. But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA.

Pg. 26

Justice Sotomayor wrote concurring in part and dissenting in part, saying she would have allowed a challenge under the Equal Protections Clause, where the majority held there was no claim.

There were multiple dissents in this case, but the lead dissent was written by Justice Thomas, joined by Justices Gorsuch and Alito. The dissent primarily focused on one issue; DACA was illegal from its inception, and therefore, needed no special process for eliminating an illegal policy or rule.

DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end. Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.

To lawfully implement such changes, DHS needed a grant of authority from Congress to either reclassify removable DACA recipients as lawfully present, or to exempt the entire class of aliens covered by DACA from statutory removal procedures. No party disputes that the immigration statutes lack an express delegation to accomplish either result. And, an examination of the highly reticulated immigration regime makes clear that DHS has no implicit discretion to create new classes of lawful presence or to grant relief from removal out of whole cloth. Accordingly, DACA is substantively unlawful. This conclusion should begin and end our review. The decision to rescind an unlawful agency action is per se lawful. No additional policy justifications or considerations are necessary. And, the majority’s contrary holding—that an agency is not only permitted, but required, to continue an ultra vires action—has no basis in law.

thomAS DISSENT, PG. 8-9

The majority’s demanding review of DHS’ decision making process is especially perverse given that the 2012 memorandum flouted the APA’s procedural requirements—the very requirements designed to prevent arbitrary decision making. Even if DHS were authorized to create DACA, it could not do so without undertaking an administrative rulemaking. The fact that DHS did not engage in this process likely provides an independent basis for rescinding. But at the very least, this procedural defect compounds the absurdity of the majority’s position in these cases.

DISSENT, PG. 16-17

In my view, even if DACA were permitted under the federal immigration laws and had complied with the APA, it would still violate the Constitution as an impermissible delegation of legislative power. Putting aside this constitutional concern, however, the notice and comment process at least attempts to provide a “surrogate political process” that takes some of the sting out of the inherently undemocratic and unaccountable rulemaking process. At 21-22.

DISSENT, PG. 21-22

Justice Thomas warned about the standard that the decision created and noted that it left an illegal rules and policy in place. We agree. An agency order that is outside the boundaries of their statutory authorities or advanced without proper rulemaking procedures should be voided by the court in the first instance. That is, if the agency subsequently rescinds the unlawful order, the underlying order should be thrown out by the court without the strained analysis of the rescission as done by Roberts.

For example, in Wisconsin Legislature v. Palm, the Wisconsin Supreme Court invalidated Wisconsin DHS’s Covid-19 lockdown order because DHS lacked statutory authority to impose the sweeping mandates, and, in any event, the order was void as an unlawful rule that needed to be promulgated consistent with Wisconsin’s APA. An analogous situation would be if a subsequent administration in Wisconsin decided to rescind the Palm order—assuming it had not already been thrown out—we are confident the Palm court would not undertake Roberts’ machinations and instead simply validated the rescission as lawful because the underlying order was not.

Justice Alito wrote a brief dissent highlighting the separation of powers problem, primarily joining Thomas.

Kavanaugh also dissented, critiquing the majority for not putting enough consideration into the Nielsen Memorandum, which he argues would have satisfied the process they were looking for.

Written by GLLF’s Legal Intern, Mike Pflughoeft