The Supreme Court’s Ruling on DACA: Adherence to Process Matters in the Law
The Supreme Court ruled on June 18 that the president did not end Deferred Action for Childhood Arrivals (DACA) in a lawful manner. This ruling does not permanently protect the DACA program, as the main point in the ruling is that the president did not follow the proper legal process to end DACA. In short, adhering to correct processes matters. While the decision is good news for Dreamers and the majority of Americans who support DACA, the struggle is not at an end. The office of the U.S. Citizenship and Immigration Services has indicated the president will continue his attempts to rescind DACA, this time attempting to do so with proper legal process.
In Department of Homeland Security, Et Al. V. Regents of the University of California Et Al., the Supreme Court first determined that the actions of the Department of Homeland Security (DHS) in rescinding the immigration relief program known as Deferred Action for Childhood Arrivals (DACA) was subject to judicial review and then found that DHS’s decision to rescind DACA was arbitrary and capricious under the Administrative Procedure Act (APA)[1]. Although the Supreme Court overturned DHS’s decision, DHS can attempt to rescind again in accordance with the APA.
The decision was made by a divided court, with five justices joining in Chief Justice Roberts’ majority opinion. A separate opinion was penned by Justice Sotomayor, who joined the majority in all but its decision to find insufficient allegations had been made to sustain a claim under the equal protection clause of the Constitution[2]. Citing statements by President Trump, the sequence of events taken without adequate rationale concerning DACA, and the disparate impact of this rescission decision on protected minorities, Sotomayor argued that these constituted sufficient allegations to state a claim under the equal protection clause. Even if a claim is properly stated, in order to sustain that claim the party would still have to introduce evidence and prove the claim at a trial on the claim.
Three justices wrote dissenting opinions. Justice Thomas, joined by Justices Alito and Gorsuch, dissented on the majority’s opinion overturning the rescission of DACA as arbitrary and capricious under the APA, arguing that DACA was illegal when put into place, so there should be no impediment to its rescission. Justice Alito’s short additional dissenting opinion argued that DHS’s decision to rescind DACA was not even reviewable by the courts as an act of prosecutorial discretion in deciding whether or not to prosecute violations of the law. Finally, Justice Kavanaugh’s dissenting opinion argued that post-hoc reasoning should be allowed to validate DHS’s decision, that more deference should be given to an administrative agency’s decision, and that the focus on procedural requirements was inappropriate as it simply delayed, but did not necessarily change, the end result.
The crux of this case is about judicial review of administrative decisions within the executive branch and the limitations to executive branch action provided by judicial review and Congress’s requirements set forth in the APA. While procedural in nature, this case provides us with some important takeaways on the separation of powers among the executive, judicial, and legislative branches of our government. In addition, the fact that this decision spawned five separate written opinions among the nine justices indicates the diversity in approaches taken by the justices on the question of judicial review of administrative actions taken by the executive branch.
This leaves us with two basic questions. First, what does this decision mean for DACA in the long term? Second, what does this decision tell us about the Supreme Court’s views on the process required for the taking of administrative actions that may have broad effects on people in this country?
What does this decision mean for DACA in the long term?
The Supreme Court’s decision does not decide the future of DACA. It merely decides that DHS did not comply with the law in rescinding the program in June of 2017. As explained in the majority opinion: “The dispute before the Court is not whether DHS may rescind DACA. All parties agree it may. The dispute is instead primarily about the procedure the agency followed in doing so.” In determining the actions of DHS were “arbitrary and capricious” in violation of the APA, the decision remands or sends back the case to DHS “so that it may consider the problem anew.”
While this result may not seem monumental, it is unusual for the Supreme Court, as an appellate court, to overturn a decision under the arbitrary and capricious standard because it is an extremely deferential standard of review. It requires the appellate court to determine that the action or decision it is reviewing was made on unreasonable grounds or without proper consideration of the circumstances. Thus, this finding is a condemnation of the failure of DHS, as part of the executive branch of government, to abide by the process and reasoning required by Congress under the APA in making this important decision.
Further, in reviewing DHS’s decision, the Supreme Court also rejected the government’s argument that this action by DHS was not subject to judicial review because it was equivalent to a prosecutor’s allowed discretion not to prosecute in a particular case. The Supreme Court held that exceptions to judicial review are to be narrowly construed. The Court then explained that DACA was not equivalent to a prosecutor’s decision not to enforce a particular law in a particular case, because DACA was a general non-enforcement policy that also grants rights to persons covered by the policy. As such, the majority opinion makes clear that DHS’s right to make a decision to rescind DACA was not absolute but was curbed by legislative requirements and by meeting the standards of judicial review.
What, then, do we learn about the Supreme Court’s views on the process for taking administrative actions and why this matters?
In reinforcing the importance of process, Chief Justice Roberts turned around a phrase made famous by Justice Oliver Wendell Holmes, one of history’s most respected Supreme Court justices: “But it is also true, particularly when so much is at stake, that ‘the Government should turn square corners in dealing with the people.’” He reminds us that the government’s power comes from the people and, as such, the government is accountable to the people. Roberts pointed out that adherence to process is essential to ensure “agency accountability” to the public such that the public can timely and fully respond to an agency’s exercise of authority. Further, in not allowing post-hoc rationalizations to be considered to support the agency’s action, he emphasizes the need for the public to be assured that the reasons given are not just convenient litigation positions and do not become a moving target for judicial review.
In this case, DHS referenced an opinion by the attorney general that stated DACA should be rescinded because it suffered from the same legal defects as a subsequently adopted policy, the Deferred Action for Parents of Americans (DAPA); DHS provided no further explanation. The majority opinion on the DACA case explained that the Fifth Circuit’s decision on DAPA invalidated only the eligibility for benefits conferred by that policy, but it did not address the legality of the policy of non-enforcement or the forbearance of enforcement of immigration laws, which is core to DACA.
Chief Justice Roberts noted that “the Attorney General neither addressed the enforcement policy at the heart of DACA nor compelled DHS to abandon that policy.” This then left DHS with a choice, he explained, whereby the agency could have rescinded the eligibility for benefits conferred under DACA while still retaining the policy of forbearance of enforcement of immigration laws against those covered by DACA. This exercise of agency discretion was required, the Supreme Court noted, because when a policy is rescinded by an administrative agency, the agency must, in accordance with the APA, consider alternatives within the scope of the existing policy as well as the impacts, hardships, and reliance interests that longstanding policies create. As such, this failure of DHS to elaborate what policies were considered in deciding to rescind the program, and what exercise of agency discretion was given due consideration in terminating a program affecting and relied on by 700,000 people, in and of itself rendered the action arbitrary and capricious.
In so deciding, the majority opinion rejects the arguments of Justice Kavanaugh, who contends that requiring a new decision by DHS with new and complete justification in compliance with the APA would be an “idle and useless formality.” Rather, Chief Justice Roberts pointed out that proper process is not a formality but a fundamental part of how governments remain answerable to their citizens. The majority opinion holds DHS to the reasoning it expressed when the action was taken — and not the reasoning added nine months after the fact as a result of court criticism of the lack of reasoning behind the initial decision. Chief Justice Roberts’s opinion makes it clear that the fact that the agency may be able to go back and properly make the same decision does not excuse or validate an improper exercise of authority.
The dissenting opinion authored by Justice Thomas contended that DACA was illegal when it was promulgated, an issue that was not squarely before the Court, and then used this as justification for the rescission of DACA. However, Chief Justice Roberts noted in the majority opinion that once a policy is enacted (and particularly a policy like DACA that includes forbearance of enforcement of immigration laws and a recognition and granting of certain rights to hundreds of thousands of people, whether rightly or wrongly established in the first place), the rights the policy creates cannot be taken away without compliance with the proper process, including consideration to reliance issues, policy concerns, and other relevant factors.
While the result of the decision is that DACA may still be subject to rescission, this decision by the Supreme Court is a reminder to the executive branch that even if it has the power to do something, that power is limited by process, by procedures, by considering the rights that have been conferred on people under the policy at issue, by accountability to the two other equal branches of government, and by ensuring answerability of the government to the source of its power — the people. As such, this opinion is not insignificant but a reminder of the Constitutional contract between our government and its people.
[1] The Administrative Procedure Act (APA), enacted in 1946, serves as a sort of “Constitution” of U.S. administrative law. The APA governs the process by which federal agencies develop and issue regulations. It includes requirements for publishing notices of proposed and final rulemaking in the Federal Register, and provides opportunities for the public to comment on notices of proposed rulemaking.
[2] “[T]the Fourteenth Amendment contains the equal protection clause. This mandates that no state shall…’deny to any person within its jurisdiction the equal protection of the laws.’ This clause has proved to be central in ending and preventing government discrimination based on race and gender. It has also been held to provide protection from discrimination against other groups of people, such as aliens (non-citizens) and illegitimate children (those born outside of marriage).” Sotomayor argued that the manner in which DACA was ended violated this clause by targeting people of a specific national origin, i.e. Central Americans.
Annette Jarvis is a judiciary specialist at Mormon Women for Ethical Government.
