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Symposium: The government’s dissonant DACA drumbeat

Melissa Crow is a senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project.

On November 12, the Supreme Court will hear argument in three consolidated cases – Department of Homeland Security v. Regents of the University of California, Trump v. NAACP and McAleenan v. Batalla Vidal – that challenge the Trump administration’s decision to end Deferred Action for Childhood Arrivals (DACA).

DACA is an Obama-era initiative that provides temporary relief from deportation and work authorization to certain young people who were brought to the U.S. as children. The diverse panoply of parties involved in these proceedings – including affected individuals, states, corporations, universities, nonprofit organizations and labor unions, among many others ­– illustrates the far-reaching impact of DACA and the critical importance of the issues at stake.

The current controversy dates back to September 2017, when then-Acting Secretary of Homeland Security Elaine Duke – upon legal advice from then-Attorney General Jeff Sessions that DACA was “an unconstitutional exercise of authority by the Executive Branch” and that it had been implemented “without proper statutory authority” – rescinded the program with no prior notice.

Numerous lawsuits ensued, and district courts in California, New York and the District of Columbia either enjoined or vacated the U.S. Department of Homeland Security’s decision on a nationwide basis. Relying primarily on its previous argument that the decision to terminate the DACA program was within DHS’ discretion and thus not subject to judicial review under the Administrative Procedure Act, the government lost no time in pursuing appeals.

The U.S. Court of Appeals for the 9th Circuit was the first to rule. Hearkening back to Marbury v. Madison, the 9th Circuit rejected the government’s position in no uncertain terms: “The government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch, whose ‘province and duty’ it is ‘to say what the law is.’”

Finding further that the respondents were likely to succeed on the merits of their claim that DHS’ decision was arbitrary and capricious, and that they had plausibly alleged that the rescission was motivated by discriminatory animus against Latinos, and Mexicans in particular, the 9th Circuit affirmed the U.S. District Court for the Northern District of California’s preliminary injunction. Judge John Owens concurred in the judgment on the basis that the plaintiffs had demonstrated a likelihood of success on the merits of their equal protection claim. In addition to granting certiorari in the 9th Circuit case, the Supreme Court took the unusual step of granting certiorari before judgment in the New York and District of Columbia cases.

The government insists before the Supreme Court that DHS’ decision to rescind DACA was “committed to agency discretion by law” and thus unreviewable under Section 701(a)(2) of the APA. This argument is rooted primarily in Heckler v. Chaney, in which the Supreme Court held that the U.S. Food and Drug Administration’s decision not to pursue an enforcement action challenging the unapproved use of certain drugs in lethal injections was “committed to agency discretion.”

However, Chaney left open the question of the reviewability of a nonenforcement decision based solely on the agency’s belief that it lacked jurisdiction to act. And as the Supreme Court’s subsequent decision in City of Arlington v. FCC confirms, decisions regarding the scope of an agency’s statutory authority to take a particular action are subject to judicial review. Because DHS’ rescission decision was premised on DACA’s purported illegality, it falls outside the scope of Chaney and is presumptively reviewable. As Judge John Bates of the U.S. District Court for the District of Columbia aptly noted in NAACP v. Trump, “an official cannot claim that the law ties her hands while at the same time denying the courts’ power to unbind her. She may escape political accountability or judicial review, but not both.”

If the Supreme Court finds that DHS’ decision to rescind DACA is judicially reviewable, it will address the legality of the agency’s action. In this regard, the government contends that it had valid policy reasons for ending DACA, with the result that its decision was not arbitrary and capricious. In fact, the government’s so-called “policy rationales” were proffered only in the context of litigation and, as both the 9th Circuit and the U.S. District Court for the Eastern District of New York found, are thus properly discounted as “post-hoc rationalizations.”

Some of these “rationalizations” strain credulity. For example, the government argues that ending DACA would discourage the flow of undocumented migrants to the United States. Yet only individuals who entered the U.S. by 2007 are eligible for DACA. The government contends further that broad decisions regarding immigration enforcement are better left to Congress. But Congress’ failure to act was the principal reason that DHS established DACA in the first place, and – as the D.C. district court noted – the government failed to explain why DHS has discretion to determine which branch of government is best placed to address a particular policy issue. Moreover, the government gives short shrift to DACA beneficiaries’ reasonable reliance on the ability to renew their benefits and on the government’s representation that any personal information they submitted with their applications would not be used for enforcement purposes.

Relying on somewhat circular reasoning, the government also seeks to defend its rescission based on the purported illegality of DACA. Through what the D.C. district court termed “an incongruous reference” to the U.S. Court of Appeals for the 5th Circuit’s decision (subsequently affirmed by an equally divided Supreme Court) rejecting Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) – a deferred-action program that would have benefited noncitizen parents of U.S. citizens or lawful permanent residents – the government implies that DACA would meet the same fate. However, while DAPA arguably conflicts with an existing provision of the Immigration and Nationality Act that allows certain undocumented parents to derive lawful immigration status through their children, DACA has no such parallel in the INA. And, despite the government’s assertions to the contrary, the record includes ample evidence that DACA determinations reflect individualized case-by-case decision making, and that a significant number of applications have been denied in the exercise of DHS’ discretion. Thus, DACA is not a substantive rule that required notice-and-comment rulemaking.

The stakes in this case are incredibly high. Its impact on the nearly 800,000 DACA beneficiaries who have built their lives in this country for at least 12 years – as well as its impact on their families and communities – is indisputable. The case may also determine the viability of future deferred-action programs and, more generally, the permissible scope of executive action in the immigration arena. Drum roll, please!

Recommended Citation: Melissa Crow, Symposium: The government’s dissonant DACA drumbeat, SCOTUSblog (Sep. 13, 2019, 2:00 PM),