Is the Department of Homeland Security’s (“DHS”) rescission of the Deferred Action for Childhood Arrivals policy judicially reviewable, and did DHS violate the Administrative Procedure Act’s requirements in rescinding this policy?
This case consolidates three lawsuits, together claiming that the Department of Homeland Security’s (“DHS”) decision to rescind the Deferred Action for Childhood Arrivals (“DACA”) policy is unlawful. Before the Supreme Court, DHS argues that the DACA rescission is unreviewable agency action, that it complied with the Administrative Procedure Act’s (“APA”) requirements, and that DACA is unlawful. In response, various states, individual DACA recipients, and organizations argue that DHS did not consider all data, failed to offer a sufficient justification for its decision, and improperly relied on the conclusion that DACA was unlawful. The case’s outcome will have important implications for the hundreds of thousands of current DACA recipients and their communities, immigration enforcement policies, and the economy.
Questions as Framed for the Court by the Parties
(1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.
In 2012, the Department of Homeland Security (“DHS”) introduced the Deferred Action for Childhood Arrivals (“DACA”) program. DACA allows noncitizens to apply for two-year renewable periods of deferred action if they entered the United States as children and have continued to reside in the United States continuously for at least five years before June 15, 2012. A period of deferred action constitutes a revocable decision by the government not to deport an otherwise unlawfully present person from the country. An individual qualifies for deferred action through DACA if he or she is a current student, has graduated from high school, has obtained a GED, or has been honourably discharged from military service. The individual also must not have been convicted of a serious crime, nor be a national security threat. Through DACA, recipients can apply for legal work authorization and pay taxes.
In 2017, the Trump administration announced its new immigration enforcement policy to “no longer  exempt classes or categories of removable aliens from potential enforcement.” Then-Attorney General Jeff Sessions advised Acting Secretary of Homeland Security Elaine Duke that DACA was an unconstitutional exercise of executive action by the Obama administration and recommended that it be rescinded. Duke then issued the Duke Memorandum the very next day rescinding DACA. The Duke Memorandum stated that DHS would stop accepting all initial DACA applications, while providing a one-month renewal window for current DACA beneficiaries.
Soon after the Trump administration’s announcement, a number of parties, including the Regents of the University of California, a group of states led by California, sued the DHS in the United States District Court for the Northern District of California (the “District Court”) claiming, among other things, that the rescission was arbitrary and illegal and that the APA’s statutory requirements for rulemaking had not been followed. The District Court consolidated the cases.The District Court then ordered the government to furnish a complete administrative record. The government appealed this decision first to the United States Court of Appeals for the Ninth Circuit (the “Ninth Circuit”) and then to the Supreme Court of the United States. The Ninth Circuit remanded the case to the District Court with instructions to decide on the preliminary issue of reviewability of the Duke Memorandum. At the District Court, the government moved to dismiss the consolidated cases while the parties moved for a preliminary injunction. The District Court granted the parties’ request for a nationwide preliminary injunction. The District Court also partially granted and partially denied the government’s motion to dismiss.
On appeal, the Ninth Circuit affirmed the District Court’s grant of preliminary injunction, finding that the Regents of the University of California were likely to succeed on their claims because DHS’s action violated the APA. Additionally, the court held that neither the APA nor the Immigration and Nationality Act (“INA”) barred judicial review of the government’s decision to rescind DACA. On June 28, 2019, the Supreme Court of the United States granted certiorari. The Supreme Court also consolidated two other similar appeals, namely, Trump v. NAACP and McAleenan v. Vidal, for oral argument.
JUDICIAL REVIEWABILITY OF DHS’S RESCISSION OF DACA
Petitioners DHS and others (the “government”) argue that DHS’s policy decision is not reviewable under the APA’s arbitrary-and-capricious standard. First, the government argues that, under the APA, agency action is unreviewable where the agency’s actions are “committed to agency discretion by law.” According to the government, a policy choice to retain or abandon a nonenforcement policy falls into this category because it entails consideration of multiple factors within the agency’s discretion. The government argues that the text of the INA also precludes judicial review. In particular, the government reads the INA to shield DHS’s discretionary determinations from judicial review unless the determinations are contained in a final removal order. The government contends that DHS’s decision to rescind a policy is not a final order that affects an individual’s removal status, and if an adverse final order is issued because of DACA’s rescission, an individual has the opportunity to then seek judicial review.
Second, the government disagrees with the lower courts’ holding that DHS’s action rested exclusively on the legal determination that DACA was unlawful and, therefore, was subject to judicial review. In particular, the government offers the justifications provided in the Duke Memorandum about Duke’s concerns for the “litigation risk” and argues that there was an independent policy justification for DHS’s decision. Similarly, the government points to a memorandum issued on June 22, 2018 by DHS Secretary Kirstjen Nielsen (“Nielsen Memorandum”), which also explained why DACA should be rescinded. In particular, the government argues that the Nielsen Memorandum’s statement—declaring that DACA’s rescission allowed DHS to “project a message” about the enforcement of U.S. immigration law—provides another independent policy justification. Ultimately, the government argues that even if DHS made legal conclusions on the lawfulness of DACA, where an agency’s decision is presumptively unreviewable, it does not become reviewable because of the agency’s rationale for its action.
Respondents the Regents of the University of California and others (“Regents”) counter that the APA does not preclude judicial review. In particular, the Regents argue that the government’s arguments do not defeat the strong presumption in favor of judicial review, especially because the explanation provided in the Duke Memorandum for the rescission of DACA is an entirely legal one. The Regents contend that DHS’s conclusion that its action was necessitated by law is not an exercise of discretion, but rather a determination that the agency lacked any discretion. Further, Respondents the National Association for the Advancement of Colored People and others (“D.C. Respondents”) argue that, unlike case-by-case decisions made in individual petitions about whether or not to act, changes in broad policies, like the one DHS made, “dramatically alter the status quo” and raise different concerns. In response to the government’s reliance on the INA, Respondents the States of California and others (“California and other states”) argue that the INA precludes judicial review in only three limited exceptions: commencing proceedings, adjudicating cases, and executing a removal; none of which apply in DHS’s rescission of DACA.
Respondents the DACA recipients (“DACA Recipients”) argue that different from other executive decisions of prosecutorial discretion, congressional statutes and agency regulations “have added benefits that flow from deferred action,” such as providing work authorization. They argue that because DACA triggers a change in eligibility for federal benefits, DHS’s decision to rescind DACA is more than a discretionary nonenforcement decision—it constitutes the government’s exercise of coercive power over individuals. Therefore, DACA Recipients contend that DHS’s act of rescinding DACA is a reviewable agency action.
LEGALITY OF DACA’S RESCISSION UNDER THE APA
The government argues that, if the agency’s action is reviewable, then DHS’s rescission did not violate the APA because the agency’s decision was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” The government argues that DHS’s policy decision was reasonable because DHS believed that DACA was likely unlawful and because DHS was concerned about a growing litigation risk if the policy continued. The government also contends that there were other reasonable policy determinations behind the rescission as outlined in the Nielsen Memorandum: first, a “broad-based and controversial” policy like DACA should come from Congress instead of through agency action; second, because agencies have the ability to exercise prosecutorial discretion on an individualized, case-by-case basis and the Secretary of Homeland Security determined DACA was not enforced on a case-by-case basis, DHS should not utilize DACA; third, DACA projects a message of nonenforcement of immigration laws; and fourth, the Secretary of Homeland Security adequately weighed the reliance interests of the individual DACA recipients by permitting existing DACA recipients to avail of their present two-year term and also seek renewal for an additional two years within a limited window. Finally, the government argues that DHS’s decision to rescind DACA was reasonable because DACA is unlawful. The government contends that DHS does not have the authority to implement categorical deferred action policies, and DACA—especially because of its economic and political significance—goes beyond the gap-filling policies that DHS has the authority to implement.
In response, the Regents argue that DHS’s decision was arbitrary and capricious because DHS failed to meaningfully examine all data and provide a “satisfactory explanation” of its action. Specifically, the Regents point to the one-sentence rationale set out in the Duke Memorandum which cited to three sources. The Regents argue that the three sources failed to explain DHS’s decision. DACA Recipients argue that the administrative record is scant and does not demonstrate a meaningful consideration to justify agency action, making DHS’s action arbitrary and capricious. Further, DACA Recipients reject the rationale based in the Nielsen Memorandum, including the litigation-risk rationale, because the Nielsen Memorandum represents the type of “post hoc rationalization” that an agency cannot rely on to justify its decisions. Responding to the government’s argument about DACA’s lawfulness, the Regents argue that the Supreme Court should not even decide this issue. However, if the Supreme Court does go on to decide, the Regents argue, DACA is lawful because it is consistent with historical practices and because Congress has recognized this authority in various statutes. The Regents also explain that DACA does not assure individuals that deferred actions will be granted, but instead it creates a framework for immigration officials to make case-by-case determination about deferred actions for each individual.
DACA’S RESCISSION AND EQUAL PROTECTION
The government argues that its decision to rescind DACA does not violate equal protection. The government first argues that such claims are not cognizable, especially because DHS made a facially neutral policy about prosecutorial discretion. The government argues that here, respondents did not adequately plead their claim because: first, rescinding DACA did not create a disparate impact on a particular ethnic group; second, President Trump’s statements are irrelevant to show discriminatory animus because the relevant decisionmakers were Acting Secretary Duke and Secretary Nielsen; and third, there was nothing unusual about DACA’s rescission or the timing of the policy change to indicate a discriminatory motivation in changing the policy. Additionally, the government argues that the court is not well-suited to consider the motivation behind discretionary enforcement in immigration decisions.
In response, Respondents the State of New York and others (“New York and other states”) argue that they adequately stated their claim that DHS’s rescission was motivated by discriminatory animus and had a discriminatory effect on Latinos from Mexico. New York and other states argue that they sufficiently met the pleading standard that DHS’s actions raised a “plausible inference” that a “motivating factor” in its decision was an “invidious discriminatory purpose.” In particular, New York and other states argue that of the 1,400 individuals DACA’s rescission would impact each day, 1,100 of those individuals are Latinos from Mexico. Additionally, New York and other states argue that DHS’s lack of consideration about data and abrupt policy change raise an inference of discriminatory intent. Finally, they argue that at the pleading stage, President Trump’s statements about immigrants from Mexico are sufficient to raise an inference of discriminatory animus, especially in light of the President’s power over Acting Secretary Duke and Secretary Nielsen, who are subordinate Executive officials.
IMPACT ON AMERICAN LABOR AND COMMUNITY
In support of the government, Immigration Reform Law Institute asserts that DACA negatively impacts employment protections for American labor in the job market. Save Jobs USA and the Washington Alliance of Technology Workers (“Save Jobs USA”) argue, in support of the government, that DACA caused a massive influx of foreign labor through administrative action. Save Jobs USA claims that Congress implemented a quota system on the number of H-1B visas issued in order to reduce the number of American workers who can be replaced by foreign labor. Save Jobs USA contends that the creation of DACA supersedes this quota Congress has set forth and gives the DHS unlimited authority to expand the class of foreign labor being brought into the United States. Additionally, in support of the government, Texas, Alabama, and other states (“Texas and other states”) argue that DACA would provide Social Security, Medicare, and Earned Income Tax Credit to unlawful immigrants. This, Texas and other states assert, directly contradicts Congress’s intention to grant these benefits only to a limited category of aliens. Texas and other states also contend that DACA forces different states to spend more on social services for DACA recipients, in areas like healthcare and education because the federal system mandates these provisions. Texas and other states point out that Texas alone incurred a cost of more than $250 million each year.
In support of the Regents and other respondents, Nevada, Michigan, and other states (“Nevada and other states”) maintain that DACA participants contribute to the community’s economic value and promote social benefits. Nevada and other states claim that eliminating DACA will negatively affect the public health systems because DACA recipients will be less likely to use medical services and purchase medical insurance. Nevada and other states argue that this will place an increased strain on public health facilities as they take on the burden of tending to these uninsured individuals. Nevada and other states also assert that eliminating DACA would hurt the higher education systems because they lose students, employees, diversity, and tuition revenue. Nevada and other states warn that, if DACA is eliminated, businesses across the United States will be met with a lower demand for their goods and services, and will incur approximately $6.3 billion in costs to replace those employees. Nevada and other states argue that it will be almost impossible to replace DACA workers because they possess a unique set of skills and experiences. Nevada explains that DACA workers speak Spanish fluently and are able to relate to their clients on a different level. Moreover, Nevada and other states claim that both state and local governments will be faced with less tax revenue because eliminating DACA would diminish each region’s purchasing power.
IMPLICATIONS ON DEMOCRATIC PROCESSES
Southeastern Legal Foundation, in support of the government, asserts that the creation of DACA denied the American people the chance and platform to learn about the program and provide feedback with regards to its implementation. Southeastern Legal Foundation states that the APA mandates administrative agencies provide the public with a notice-and-comment opportunity and to allow interested parties from both sides of the platform to air their concerns, differing views, and alternative solutions. Southeastern Legal Foundation claims that bypassing this process hinders the sanctity of our democratic process, separation of powers, and our liberty and private interests. Southeastern Legal Foundation maintains that abiding by the administrative process is especially important for DACA because it weighs heavily on our immigration policies and individual rights and obligations. For example, Southeastern Legal Foundation explains that DACA recipients became eligible for legal employment and important social benefits under the program. Southeastern Legal Foundation also asserts that DACA is an avenue for immigrants to circumvent international treaties on statutory removal, extradition, and deportation.
Teach for America, in support of the Regents and other respondents, claims that DACA recipients and various other organizations have relied on the promises and assurances of the DACA program. Teach for America explains that many organizations, including itself, have invested significant tools and resources to train and equip DACA recipients to be engaged and contribute to the community at large. To that extent, Teach for America asserts that when DHS rescinded the DACA program, it did not take into consideration interested parties’ “serious reliance interests.” Teach for America claims that these promises include living without fear of deportation or exile, gaining a peace of mind, and getting a driver’s license. In support of the Regents and other respondents, Tim Cook, Deirdre O’Brien, and Apple (“Apple and representatives”) add that DHS should follow through on its initial DACA promises because DACA recipients have offered confidential personal information, worked hard, and abided by the rules while DHS looks to renege on its end of the deal.
- Michael D. Shear & Adam Liptak: It’s Now the Supreme Court’s Turn to Try to Resolve the Fate of the Dreamers, New York Times (June 28, 2019).
- Richard Wolf: Supreme Court to Hear Trump Administration Plea to End DACA Program for Immigrants Who Came as Children, USA Today (June 28, 2019).