Symposium: DACA déjà vu

Nicholas Bronni is the solicitor general for the state of Arkansas, which joined an amicus brief in support of the federal government in Department of Homeland Security v. Regents of the University of California.

Yesterday, the Supreme Court concluded that Acting Secretary of Homeland Security Elaine Duke acted arbitrarily and capriciously when she rescinded the Obama administration’s memorandum creating the Deferred Action for Childhood Arrivals program. But although that decision is important, it tells us little about DACA’s ultimate fate.

Indeed, the decision does little to dispel uncertainty about how the court would resolve a direct challenge to DACA itself. For instance, it doesn’t tell us whether the Obama administration’s DACA memorandum violated the Administrative Procedure Act or whether that is even the right question. It doesn’t tell us whether—if the court had considered it—Secretary Kirstjen Nielsen’s later memorandum further explaining the Trump administration’s rescission decision would have been sufficient to end the program. And most importantly, it doesn’t tell us whether DACA is illegal. Instead, the court punts all these questions for another day, presumably in the hope that the political branches will decide DACA’s fate.

This certainly is not the first time that the court has decided an important case without deciding the questions that make it so important. In that respect, the court’s DACA opinion is remarkably similar to last term’s decision in Department of Commerce v. New York. That case concerned whether the government could reinstate a citizenship question on the decennial census. And discussing that decision in a post last year, I argued that case was remarkably limited since it turned on a series of “unusual circumstances” that were not likely to arise again. Those circumstances included an unusual record that the court believed showed evidence of pretext. As a result, to quote Justice Clarence Thomas’ dissent, that case felt like “an aberration—a ticket good for this day and this train only.”

That feels equally true here. Indeed, if anything, this case is even more unusual since it is ultimately about a program that even President Barack Obama acknowledged his administration lacked the authority to create. And given that backdrop, the incoming administration understandably believed it could rescind DACA on that basis alone. Hence, as Thomas succinctly put it, “this is anything but a standard administrative law case.” It is therefore difficult to foresee the court’s opinion having a major impact on administrative law or how future administrations reverse their predecessors’ decisions. Instead, it appears that, in the majority’s view, new administrations just need to follow the familiar rules from Motor Vehicle Manufacturers Association v. State Farm.

Moreover, to borrow Thomas’ census case train analogy, the court’s DACA opinion is so narrow that it is hard to know where the DACA train is headed, let alone where it will eventually end up. That’s particularly true because, as Justice Brett Kavanaugh noted in dissent, “all nine Members of the Court accept, as do the DACA plaintiffs themselves, that the Executive Branch possesses the legal authority to rescind DACA and to resume pre-DACA enforcement of the immigration laws enacted by Congress.” Thus, in every sense, the court’s opinion amounts to what Justice Samuel Alito’s dissent called an order to “the Department of Homeland Security to go back and try again.”

At least in Kavanaugh’s view—if not that of some members of the majority—the Trump administration could do that by reiterating the reasons that Nielsen gave after the U.S. District Court for the District of Columbia vacated the Duke rescission and remanded the DACA issue to the agency for further consideration. And there is no real dispute that this analysis would have been sufficient under ordinary administrative law principles. In fact, it is telling that the majority does not respond to Kavanaugh’s point on the merits, but falls back on the principle that “when so much is at stake,” an agency cannot “cut[] corners.”

Likewise, even if the Trump administration does not try again, the court’s opinion still does not resolve the issue of DACA’s legality because the majority did not decide whether the program was properly promulgated in the first place. Nor—wherever one stands on the policy debate—does it resolve the question of whether the executive branch can unilaterally refuse to enforce federal immigration laws. Those questions remain for another day, potentially for resolution by the political branches.

But perhaps the whole point of deciding so little is to, as Kavanaugh observed, “delay” final resolution of the issues underlying this case and give the political branches time to find a solution to what everyone agrees is a deeply troubled immigration system. Such an approach would certainly be consistent with what we have all learned about Chief Justice John Roberts’ preference for giving the political branches room to find a solution.

The census case involved a remarkably similar dynamic, and that may be why DACA feels like déjà vu. That case, too, involved a hot-button political issue dressed in the garb of administrative law. Indeed, under the surface, the census case, like DACA, was ultimately about immigration—albeit in a different way. And, as here, Roberts wrote a fairly narrow opinion focused on an unusual record that the court was unlikely to see again.

That is not to say, however, that there are not clear differences between DACA and the census case. Most obviously, the court’s census opinion began by finding that the agency’s action—at least in the abstract—was not arbitrary, capricious or unsupported by evidence, before remanding the matter to the agency to demonstrate that its decision-making was not pretextual. The court’s DACA decision, by contrast, rejected a similar argument about ulterior motives, declaring by an 8-1 margin that statements made in the heat of an election campaign or that can be easily taken out of context do not tie an incoming administration’s hands. In that sense, the court’s DACA decision feels more restrained and as if it were designed to depersonalize the debate and help promote a political solution.

Whether that works remains to be seen. Certainly, as Kavanaugh argued, no matter where one stands on DACA, we can all agree that “short-lived and stopgap administrative measures” are not a solution to a broken immigration system. Instead, only “the Article I legislative process” is capable of “produc[ing] a sturdy and enduring solution to this issue.” But if that process fails, no matter how much the court tries to avoid the issue, it will eventually be forced to decide whether DACA is legal. In that event, it will certainly be, as Yogi Berra said, “like déjà vu all over again.”