Kimberly Hermann is General Counsel at Southeastern Legal Foundation, which filed an amicus brief in support of the petitioner in Department of Homeland Security v. Regents of the University of California.

The date is June 19, 2020. The America we live in today is drastically different from the America we lived in when the clock struck midnight on New Year’s Eve. In the past six months, our country has endured a pandemic, economic instability, tragedy, hard yet overdue conversations and riots. I think it’s safe to say that as we entered this new decade wearing silly 2020 sunglasses and playing noisemakers, no one could have imagined what the year has brought so far. Although this year is frequently referred to as unprecedented, it is not the first time America has endured these kinds of events. And we have always made it through. Why? How? I would argue that it is because we are a country with a strong constitutional foundation built on founding principles including separation of powers and most importantly, the rule of law.

But what happens when those founding principles are ignored? What happens when courts dismiss the concept of constitutional fidelity?

One need look no further than the Supreme Court’s opinion yesterday in Department of Homeland Security v. Regents of the University of California to answer those questions. You end up with a Supreme Court compelling the executive branch to violate the Constitution and federal statutory law.

In yesterday’s ruling, a majority of five justices blocked the Trump administration from rescinding the unlawful Obama-era Deferred Action for Childhood Arrivals program. DACA was not enacted by Congress. Nor was the public given a chance to comment on it, as is required by the Administrative Procedure Act. Frustrated because Congress would not pass his desired immigration laws, in 2012, President Barack Obama had Secretary of Homeland Security Janet Napolitano write a memo directing immigration enforcement officers not to remove young adults who were brought to the United States illegally as children if they met certain criteria.

When President Donald Trump took office in January 2017, the 2012 DACA memo remained in effect. Later that year, Attorney General Jeff Sessions explained in a memo to Acting Secretary of Homeland Security Elaine Duke that in his legal opinion, DACA violated the Constitution and federal statutes. Given the attorney general’s legal opinion and the decision of the U.S. Court of Appeals for the 5th Circuit on a related executive action deferring removal of certain undocumented parents, Duke issued a memo stating DHS’s intent to wind down DACA because it was unlawful. The memo did not provide additional policy justifications for rescission.

That brings us to yesterday’s ruling. First, eight of the justices (with Justice Sonia Sotomayor dissenting) quickly dismissed the argument that the decision to wind down DACA was discriminatory. Moving to the substance of the opinion, the issue before the Supreme Court was not whether DHS could wind down DACA; instead, it was whether DHS followed the procedures required by the APA. Winding down DACA would only violate the APA if the decision was arbitrary and capricious, an abuse of discretion or otherwise not in accordance with law. Despite acknowledging that the standard is narrow and that in reviewing agency action “a court is not to substitute its judgment for that of the agency,” the 5-4 majority (with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh dissenting) applied a heightened standard and substituted its judgment for the agency’s.

The majority focused its review solely on the original Duke memo, finding that it inadequately justified rescission. It found that DACA’s unlawfulness was not a sufficient reason to rescind the program because, as the majority interpreted the memo, it only explained how providing benefits to DACA recipients was unlawful and not how deferring removal was unlawful. As Thomas pointed out in his dissent, this reasoning does not hold because the APA does not require DHS to dissect DACA piece by piece and, even if it did, the benefits exist only because of the unlawful decision to defer removals.

But that isn’t the real infirmity. The majority went on to find rescission arbitrary and capricious because the Duke memo did not provide policy justifications for rescinding the unlawful DACA program. Stop for a minute and think about that. You have an executive action that the attorney general of the United States has determined is unlawful. The highest attorney in our government is telling DHS that if it continues to enforce DACA it will be not only breaking the law, but also violating our Constitution. But because DHS did not document its consideration of particular policy issues deemed important by the majority (such as reliance interests, impact on the economy and impact on the education system) in this particular memo, the agency’s decision to stay in its lane and not exceed its authority was arbitrary and capricious.

Ignoring or not realizing this, many are applauding yesterday’s ruling because it means that for the foreseeable future, DACA will remain in place. The cases have been sent back to the lower courts. The earliest they would reach the Supreme Court again would be this fall. And with no way to predict the presidential election, there is a chance that the rescission may be rescinded. But I caution those celebrating because they like DACA as a policy to remember why the rule of law is so important in the first place.

There is nothing novel or remarkable about a new administration reviewing the prior administration’s executive actions for legality. Given the sheer power exercised by the administrative state and the authority executive agencies hold over every aspect of our lives, one could say it is prudent and even the duty of the attorney general to ensure that agency action (or in this case inaction) is lawful.

The agency action here involved immigration; but now that Pandora’s box is open there is nothing to say that Thomas’ concern that the majority’s opinion “will hamstring all future agency attempts to undo actions that exceed statutory authority” won’t come true. Imagine that a second wave of COVID-19 strikes in early January 2021 and the administration prohibits all interstate travel or the interstate sale of goods. Or maybe the Environmental Protection Agency declares it won’t enforce certain Clean Water Act violations for a certain period of time. After yesterday’s ruling, if there is a change in administrations later that month, the successor administration cannot rescind the unlawful action unless it convinces the Supreme Court that rescission itself is a sound policy. Or, as the court put it, unless it shows that “the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”

You read that right. With one opinion, one ruling, one case, five justices have taken for themselves what the Constitution does not grant them: powers reserved for the other two branches of government. The question is no longer whether an agency action (or possibly even a statute) is unlawful or unconstitutional, but instead, whether or not five justices agree with the underlying policy.

In his famous 1986 speech before the American Bar Association, Ronald Reagan’s Attorney General Edwin Meese III reminded Americans to be proud that we “produced the greatest political wonder of the world – a government of laws and not of men.” It is a government in which the law is supposed to be king, not the president, not a legislator and certainly not a justice.

One final thought on yesterday’s opinion to finish where we started. Everything is political today. Maybe it always has been. As Benjamin Cardozo pointed out once, “the greatest tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.” Everyone feels the need to label Supreme Court opinions as conservative or liberal. One Monday (or Thursday in this case) a particular justice is a savior, and the next Monday he or she should have never been confirmed. Whether or not the decision today was politically motivated – either by a desired outcome or by a desire not to look political – is not for me to judge. What I will predict, however (and I hope that I am wrong), is that yesterday’s opinion will significantly erode the rule of law. It will give future administrations and their agencies an avenue to undermine the Constitution that our Founding Fathers wrote so carefully. And this is unfortunate because it is in times of crisis that we need to protect our founding principles the most.

Posted in Department of Homeland Security v. Regents of the University of California, Trump v. NAACP, Wolf v. Vidal, Featured, Symposium on the court's ruling in DHS v. Regents of the University of California, Trump v. NAACP and Wolf v. Vidal

Recommended Citation: Kimberly Hermann, Symposium: SCOTUS 2020 and the DACA decision: just another reason to wish it were still 2019, SCOTUSblog (Jun. 19, 2020, 2:57 PM), https://www.scotusblog.com/2020/06/symposium-scotus-2020-and-the-daca-decision-just-another-reason-to-wish-it-were-still-2019/