Opinion analysis: Court rejects Trump administration’s effort to end DACA (Updated)

It has been eight years since the Obama administration created the Deferred Action for Childhood Arrivals program, known as DACA, which allows undocumented young adults who came to the United States as children to apply for protection from deportation. In 2017, the Trump administration announced that it would end the program, which it believed had been illegal in the first place. Today, by a vote of 5-4, the Supreme Court ruled that the administration acted improperly in terminating the program, and it sent the case back for the Department of Homeland Security to take another look. The ruling means that the DACA program will remain in place, at least for the foreseeable future.

In the years since it was established, DACA has provided a shield from deportation, for renewable two-year terms, for the nearly 800,000 young people who qualified. The program also allowed DACA recipients to work legally in the United States and gave them access to other benefits, such as health insurance and driver’s licenses. DACA enjoyed broad support among Americans; one poll, conducted in January 2018, indicated that 87 percent of those surveyed believed that DACA recipients should be allowed to stay in the country as long as they were working or going to school. But in 2015 and 2016, then-presidential candidate Donald Trump repeatedly promised to end DACA, describing the program, along with a similar program for the parents of U.S. citizens and permanent residents, as “illegal executive amnesties.”

On September 5, 2017, Attorney General Jeff Sessions announced the administration’s plan to end DACA, effective March 2018. Sessions explained that the administration believed that the program was unconstitutional and would likely be blocked by the courts if it remained in place; as a result, the administration wanted to begin an “orderly, lawful wind down” of DACA, while leaving time for Congress to act.

The battle over DACA came to the Supreme Court in November 2018, when the Trump administration asked the justices to take up three different challenges, filed in California, the District of Columbia and New York, to the decision to end DACA. The challengers – which include states, cities, universities, DACA recipients, civil rights groups and even Microsoft – argued that the decision to rescind DACA violated the rights of DACA recipients and the Administrative Procedure Act, the federal law governing administrative agencies. In all three cases, the lower courts ruled for the challengers and ordered the government to keep DACA in place. At the end of June 2019, the Supreme Court announced that it would review the three cases.

At the oral argument last November, the main issue before the Supreme Court wasn’t whether the Trump administration has the power to end DACA, because everyone agrees that it does. Instead, the question was whether the administration went about it in the right way. Lawyers for the challengers told the justices that the administration had not provided a good reason for its decision to end DACA because it didn’t want to take responsibility for its actions. Instead, they suggested, the administration wanted to blame its decision on the courts. In effect, the administration was claiming that it didn’t necessarily want to end DACA, but that it had to because the courts had said the program was illegal. U.S. Solicitor General Noel Francisco pushed back, telling the justices that the administration “owns” its decision to terminate DACA.

Today Chief Justice John Roberts, joined by the court’s four more liberal justices, agreed with the challengers that the decision to terminate DACA violated the APA. Before they could reach that key issue in the case, however, they had to dispose of a threshold question: whether courts have the power to review the decision to end DACA in the first place. The majority made quick work of this question, rejecting the Trump administration’s argument that the decision was unreviewable. As a general rule, Roberts explained, courts will be able to review an agency’s action, unless (among other things) the action falls within the agency’s discretion. But courts have read that exception “quite narrowly,” Roberts noted. And the government’s efforts to compare one example of an agency action that is not subject to judicial review – a decision not to institute enforcement proceedings – to the termination of DACA fell short in the majority’s eyes because DACA is not a “passive non-enforcement policy” but instead a “program for conferring affirmative immigration relief.” “The creation of that program—and its rescission—is an ‘action [that] provides a focus for” courts to review, Roberts concluded.

Roberts then turned to the central question in the case: whether the Trump administration followed proper procedures in terminating DACA. Under the APA, Roberts stressed, courts should not substitute their own judgment for that of the agency. Instead, he explained, their job is to determine whether an agency made its decision “based on a consideration of the relevant factors and whether there has been a clear error of judgment.” In the majority’s view, the Trump administration had failed to meet even this relatively low bar.

The first step in the court’s inquiry, Roberts explained, “is knowing where to look for the agency’s explanation.” The majority focused on the memorandum that acting DHS Secretary Elaine Duke provided when she announced the decision to end DACA in September 2017. The majority declined to consider a June 2018 memorandum by DHS Secretary Kirstjen Nielsen, reasoning that it is a “foundational principle of administrative law” that courts should only look at the grounds on which an agency relied when it took the action being challenged. Roberts noted that Nielsen could have issued a new decision terminating DACA but decided not to. Instead, she opted to rely on the Duke memo, supplementing it with her own memo. However, Roberts wrote, “Nielsen’s reasoning bears little relationship to that of her predecessor.” Roberts concluded that 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.”

Roberts then went on to the second step in the court’s inquiry. The Duke memorandum, he observed, concluded that DACA was illegal and should be terminated because it made DACA recipients eligible for benefits such as Social Security, Medicare and the ability to work legally in the United States. Roberts declined to weigh in on whether the Trump administration was correct in concluding that DACA was illegal. Instead, he explained, the problem was that the memorandum did not consider the policy that Roberts characterized as being “at the heart of DACA”: the protection from deportation that the program provides. Even if the benefits provided by DACA were illegal, Roberts observed, Duke could have still retained the protection from deportation, but instead she simply concluded, without any explanation, that it had to be terminated as well. Moreover, Roberts added, Duke also did not address whether DACA recipients had counted on the existence of the program in arranging their lives; if she had, he suggested, she “might have considered more accommodating termination dates” for DACA recipients who were in the middle of – for example – academic programs, military service or medical treatment.

Roberts and three of the more liberal justices – Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan – rejected the DACA recipients’ claim that the Trump administration’s decision to end DACA violated the Constitution because it was motivated by an intent to discriminate. None of the factors that the challengers cited can establish such a claim, either alone or taken together, Roberts wrote. First, although DACA recipients are overwhelmingly Latino, Roberts acknowledged, “one would expect them to make up an outsized share of recipients of any” broad immigration relief because they also comprise “a large share” of the country’s undocumented immigrant population. Otherwise, Roberts suggested, “virtually any generally applicable immigration policy” would be subject to a similar challenge. Second, Roberts continued, “there is nothing irregular about” the history of the decision to end the program: DHS’s decision to end the program was a “natural response to a newly identified problem.” Third and finally, Roberts dismissed statements about Latinos by Trump (both before and after his 2016 election) as “unilluminating,” because the key actors in the decision to end DACA were Duke and the attorney general.

In closing, Roberts reiterated that the court was not deciding “whether DACA or its rescission are sound policies.” Instead, he stressed, the court addressed “only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action” – which, in the majority’s view, it did not. The solution, Roberts continued, was for the court to send the issue back to the Department of Homeland Security for it to reconsider and, if it wants to rescind the program again, for it to offer a better explanation.

Justice Sonia Sotomayor joined most of the Roberts opinion, but she parted ways from him and her colleagues in the majority when it came to their rejection of the challengers’ claims that the decision to end DACA was motivated by an intent to discriminate. She would have allowed the challengers to develop those claims more fully on remand. In particular, Sotomayor noted, although the Roberts opinion “brushes aside” statements by the president describing Mexican immigrants as “criminals, drug dealers, [and] rapists,” those statements “bear on unlawful migration from Mexico—a keystone of President Trump’s campaign and a policy priority of his administration—and, according to” the challengers, “were an animating force behind the rescission of DACA.” “Taken together,” Sotomayor concluded, the president’s statements “help to ‘create the strong perception’” that the decision to end DACA was motivated by an intent to discriminate.

Justice Clarence Thomas (in an opinion joined by Justices Samuel Alito and Neil Gorsuch) agreed with his four colleagues that the decision to rescind DACA was not motivated by an intent to discriminate. But he disagreed with the majority that the Trump administration’s termination of DACA violated the law.

Recounting the history of the DACA program, Thomas observed that “the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.” He complained that the majority’s ruling “must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.” Moreover, he added, the court’s decision will mean that a government agency will be “not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”

Thomas characterized the DACA program as a “poignant illustration” of illegal action by DHS: That agency, he contended, has no discretion to grant relief from deportation “out of whole cloth.” As a result, he continued, the court’s task should be an easy one, because an agency’s decision to end an illegal action is automatically legal. “No additional policy justifications or considerations are necessary,” he stressed. But in any event, Thomas added, it is “inconceivable” that DHS would be required to consider the extent to which DACA recipients have relied on the program before rescinding it, because DHS has always emphasized that it could end relief from removal at any time. The majority’s decision, Thomas concluded, is “incorrect, and it will hamstring all future agency attempts to undo actions that exceed statutory authority.”

Although Alito joined the Thomas opinion, he also filed a short opinion of his own suggesting that the federal judiciary had acted as an obstacle in this dispute. Although the Trump administration had announced its intent to terminate DACA in September 2017, Alito wrote, and the U.S. solicitor general had sought Supreme Court review in November 2018, today’s decision “still does not resolve the question of DACA’s rescission.” “What this means,” Alito lamented, “is that the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way.”

Justice Brett Kavanaugh wrote his own opinion dissenting from the majority’s ruling that the decision to end DACA violated the law. Kavanaugh argued that the majority should have considered, in addition to the 2017 Duke memorandum, the 2018 Nielsen memorandum – which, he wrote, “expressly addressed” the extent to which DACA recipients had relied on the program. The “only practical consequence” of the majority’s decision to send the dispute back to DHS, Kavanaugh complained, seems to be “some delay.” “The Court’s decision seems to allow the Department on remand to relabel and reiterate the substance of the Nielsen Memorandum, perhaps with some elaboration as suggested in the Court’s opinion.”

The court’s decision today, Kavanaugh continued, “cannot eliminate the broader uncertainty over the status of the DACA recipients.” Kavanaugh laid the blame for that uncertainty squarely at the foot of “Congress’s inability thus far to agree on legislation.” If Congress could pass legislation, he suggested, it could “produce a sturdy and enduring solution to this issue, one way or the other.”

Today’s ruling had echoes of last year’s decision in the challenge to the Trump administration’s effort to include a question about citizenship on the 2020 census. In that case, although the court didn’t rule out the possibility that the government could add a question about citizenship to the census, Roberts joined the court’s more liberal justices in holding that the rationale that the government offered at the time for including the question was a pretext, and the court sent the case back for a do-over. A few weeks later, Trump announced that the government had given up on the legal battle to include the citizenship question and would instead try to gather citizenship data using existing government records.

In the hours following the release of today’s decision, Trump took to Twitter to criticize the ruling, calling it “horrible” and “politically charged.” In a subsequent tweet, he indicated that he was “asking for a legal solution on DACA, not a political one, consistent with the rule of law. The Supreme Court is not willing to give us one, so now we have to start this process all over again.” It was not clear, however, what process Trump was referring to or when it might begin.

This post was originally published at Howe on the Court.