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Wednesday, November 30, 2022

Supreme Court Blocks DACA Repeal Based on ‘Arbitrary and Capricious’ DHS Procedure

The Supreme Court ruled today that the Department of Homeland Security tried to rescind the Deferred Action for Childhood Arrivals (DACA) policy under the Administrative Procedures Act in an “arbitrary and capricious” way.

The Trump administration announced in 2017 that the program, which gives legal status to immigrants who were brought to the country illegally as children and meet certain requirements, would be ended, setting off lawsuits and sparking fears among some 700,000 DACA beneficiaries that they would be deported.

The court — with Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor in the majority — found that DHS did not go about rescinding DACA the right way. “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so,” Roberts wrote for the majority.

Noting that the federal government argued DACA “is a non-enforcement policy and that its rescission is therefore unreviewable,” Roberts said that “the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief” and thus was subject to judicial review.

The administration also argued that two jurisdictional provisions of the Immigration and Nationality Act blocked judicial review, but Roberts said that “neither applies” in the DACA case.

“An agency must defend its actions based on the reasons it gave when it acted,” he wrote. “This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.”

Roberts wrote that “whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General.”

“But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS,” he said. “Acting Secretary Duke plainly exercised such discretionary authority in winding down the program… But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General’s legal reasoning left off.”

“…In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke… She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.”

Roberts continued that if former Acting DHS Secretary Elaine Duke “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.”

DHS was not required to take any of those steps, he added, but “was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.” Failure to do so “was arbitrary and capricious in violation of the APA.”

“We do not decide whether DACA or its rescission are sound policies,” Roberts concluded. “…We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”

Sotomayor issued a separate opinion concurring in part with the majority and dissenting in part, agreeing with the technical violations outlined by Roberts but adding that the administration’s record, including statements by the president, should have been taken into account when weighing the equal protection claims against rescinding DACA.

“Taken together, ‘the words of the President’ help to ‘create the strong perception’ that the rescission decision was ‘contaminated by impermissible discriminatory animus,'” Sotomayor wrote.

“I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier,” the justice also wrote.

Justice Clarence Thomas filed an opinion, concurring and dissenting in part, on which he was joined by Justices Samuel Alito and Neil Gorsuch. Justice Brett Kavanaugh filed a separate opinion concurring and dissenting in part.

“Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law. On the contrary, this is anything but a standard administrative law case,” Thomas wrote. “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,” he continued. “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.”

President Trump tweeted, “These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives.”

He added, “Do you get the impression that the Supreme Court doesn’t like me?”

“DACA recipients deserve closure and finality surrounding their status here in the U.S. Unfortunately, today’s Supreme Court decision fails to provide that certainty,” Acting DHS Secretary Chad Wolf said in a statement. “The DACA program was created out of thin air and implemented illegally. The American people deserve to have the nation’s laws faithfully executed as written by their representatives in Congress — not based on the arbitrary decisions of a past administration. This ruling usurps the clear authority of the executive branch to end unlawful programs.”

Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights and former head of the Civil Rights Division at the Justice Department, commended the Supreme Court decision but said that “the fight is not over.” The Leadership Conference joined in a “friend of the court” brief in the case.

“We must continue to follow the lead of Dreamers and other advocates fighting for a lasting solution that protects DACA recipients and their families,” Gupta said. “Whether it is the more than 25,000 Dreamers who are health care workers keeping us safe during the pandemic, or the Dreamers marching in solidarity for justice to protest anti-Black racism, DACA recipients are here to stay.”

This story was updated at 3:30 p.m. EST with comment from DHS

Bridget Johnson
Bridget Johnson is the Managing Editor for Homeland Security Today. A veteran journalist whose news articles and analyses have run in dozens of news outlets across the globe, Bridget first came to Washington to be online editor and a foreign policy writer at The Hill. Previously she was an editorial board member at the Rocky Mountain News and syndicated nation/world news columnist at the Los Angeles Daily News. Bridget is a terrorism analyst and security consultant with a specialty in online open-source extremist propaganda, incitement, recruitment, and training. She hosts and presents in Homeland Security Today law enforcement training webinars studying a range of counterterrorism topics including conspiracy theory extremism, complex coordinated attacks, critical infrastructure attacks, arson terrorism, drone and venue threats, antisemitism and white supremacists, anti-government extremism, and WMD threats. She is a Senior Risk Analyst for Gate 15 and a private investigator. Bridget is an NPR on-air contributor and has contributed to USA Today, The Wall Street Journal, New York Observer, National Review Online, Politico, New York Daily News, The Jerusalem Post, The Hill, Washington Times, RealClearWorld and more, and has myriad television and radio credits including Al-Jazeera, BBC and SiriusXM.

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