Notice & Comment

Chief Justice Roberts Gave Us a Roadmap for a Way Forward on DACA, by Geoffrey A. Hoffman

There is a reading of the Chief Justice’s opinion in the DACA decision that gives us a roadmap to a possible future for DACA, and not merely a justification for striking down its rescission. When the Supreme Court denied the government’s attempt to rescind the DACA program, 5-4, on June 18, 2020, it did much more than that. Although the decision self-consciously refuses to opine on the “soundness” of the underlying DACA program, it clearly held DHS violated the Administrative Procedure Act when it acted arbitrarily and capriciously to rescind the program in 2017. It is not obvious, but the decision contains several clues for DACA or DACA-like remedies in the future for certain immigrants. These are laid out carefully by Chief Justice Roberts. One way to read his decision highlights his deliberate hints at what the continuation of prosecutorial discretion for DACA recipients may look like.

To put this in perspective, let’s remember the history of DACA. In June 2012, the Obama administration rolled out Deferred Action for Childhood Arrivals and provided for a 2-year period where undocumented immigrants would be protected from deportation. The program was justified under the well-entrenched authority of the Executive’s exercise of prosecutorial discretion, and statutorily, based on provisions such as 8 U.S.C. 1103(a)(1)(delegation authority to the Secretary of DHS from the Attorney General and President), as well as the authority to provide work authorization for pre- established categories including deferred action under 8 C.F.R. 274a.12. DACA also provided not just for “forbearance” from deportation, in Chief Justice Roberts’ words, but also for “lawful presence,” and other benefits, including work authorization. The Chief Justice was clear that these two aspects of DACA, “forbearance” and “benefits,” can be decoupled and can be considered independently, a fact missed by the federal agency.

In 2014, due to the success of the DACA program, then President Obama tried to roll out DACA-plus (an expanded DACA lifting the age cap among other things) and DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). However, these attempts were thwarted by an injunction stopping the programs from being implemented. The DAPA challenge was a successful bid by several states (especially Texas and others). Importantly, neither the district court nor the Fifth Circuit’s opinion in that separate DAPA litigation ever held that DACA 2012 was unconstitutional, unlawful, invalid or improper. Even with respect to DAPA, the rationale for the injunction was an alleged violation of the APA’s notice and comment requirement. The courts that examined DAPA never touched upon whether or not the prior and continuing DACA 2012 program was unlawful, nor for that matter did they even opine about the constitutionality of DACA-plus or DAPA. Eventually, in June 2016, DAPA made its way to the Supreme Court where the high court split 4-4 (Justice Kagan recused herself as she had been Solicitor General) and so the Fifth Circuit’s decision stood; the current district court DAPA case (now expanded to include DACA 2012) is pending before Judge Hanen in the Southern District of Texas.

Note that in August 2018, after the remand from the Fifth Circuit, Judge Hanen in Texas was asked to preliminarily enjoin DACA 2012, after that claim was added; but crucially the District Judge even in the face of a direct attack as to the validity of DACA declined to enjoin it for reasons laid out in a lengthy, more than 100-page decision. His rationale was the reliance and great harm to hundreds of thousands of DACA recipients, as well as the fact that the states had waited so long to raise any alleged invalidity as to the underlying DACA 2012 program. This reliance theme was picked up on by Chief Justice Roberts in his recent decision, where the Supreme Court recognized the “legitimate reliance” of DACA recipients was not sufficiently considered by DHS in their attempted rescission order.

It is important to remember these historical facts as they provide the context for the 2017 rescission attempt. In then-DHS Secretary Duke’s memorandum, she premised the rescission on courts’ prior treatment of DAPA (not DACA), and more specifically on the threat of litigation based on the alleged “illegality” of DACA. As pointed out by Chief Justice Roberts, these reasons were legally insufficient under the APA to justify rescission. In addition, although the reasons for rescission were elaborated upon 9 months later by her successor, then-Secretary Nielsen, those reasons did not constitute a “new action” and were dismissed as post-hoc rationalizations as they were not the original reasons provided by the agency for the rescission order. Even if they had been sufficient, the Chief Justice also pointed out the administration’s further error in ignoring the full ramifications of the reliance interests of DACA recipients.

Understanding this complex procedural history clarifies what the Supreme Court on June 18th did and did not hold. Despite pundits who speculated that the Supreme Court might decide that very issue, it actually never was before the high court. The appeal brought by the government (who had lost in all 3 consolidated cases below) presented only two questions for the Supreme Court: (1) whether there was judicial review over the rescission order and (2) whether, if so, the rescission was lawful.

For Justice Thomas, writing in dissent, he would have found DACA’s supposed invalidity to have been dispositive. In other words, because the initial program was allegedly not lawful it is (for Justice Thomas) always per se lawful for any agency to rescind any unlawful program. This is simplistic as it ignores the entire jurisprudence of administrative law and procedure, as well as due process, and any hint that the agency should and must consider the legitimate reliance interests of immigrants. In addition, Justice Thomas’ dissent with its emphasis on the importance of notice and comment can (ironically) be utilized to support an argument that to be justified a proper rescission must go through the APA’s full notice and comment procedure. (This point is also supported by the Fifth Circuit’s prior decision on DAPA). With regard to Justice Kavanaugh’s own independent dissent, he deserves credit for his recognition of the much needed legislative solution.

Justice Sotomayor, writing in concurrence, focused on the plurality’s rejection of plaintiffs’ equal protection claim. The plurality was very quick to dismiss equal protection as a source for relief. On one level, this is not at all strange given the Constitutional Avoidance Doctrine, providing that courts rule on non-Constitutional (e.g. statutory) grounds if at all possible. But Chief Justice Roberts in his opinion did not mention “avoidance” as the specific rationale, instead failing to discern any evidence of animus behind the attempted rescission despite the well-publicized statements of the President. The Chief Justice also rejected disparate impact as a basis for equal protection. Justice Sotomayor makes a convincing argument about the fact that this is a preliminary issue so the standard is merely that plaintiffs must state sufficient facts that would “allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Here, they did just that. It is also interesting that no one besides Justice Sotomayor saw equal protection as a viable claim. Instead, alarmingly Justices Ginsburg, Kagan, and Breyer all sided with the Chief Justice in his majority opinion, even in its rejection of equal protection.

Chief Justice Roberts’ decision will be remembered not just for how it determined the unlawfulness of the Trump administration’s rescission attempt but also for what it said as a threshold matter about the importance of judicial review. The case is a triumph for judicial review over invalid agency action. As such, it is an antidote to the decision in Trump v. Hawaii, or “Travel Ban” case. There, the same Chief Justice had begrudgingly exercised judicial review over Trump’s travel ban. In the prior case, according to Justice Roberts the statute “exuded deference.” Although the travel ban was of course reviewed in the end, the propriety of judicial review was assumed and not explicitly decided. Now, the Chief Justice has clearly set forth the fact that judicial review over agency action is proper and required. It cannot be defeated by either an attempt to couch governmental decisions within the ambit of an agency’s unfettered discretion or as protected from review by jurisdiction-stripping provisions within the Immigration and Nationality Act.

After the resounding defense of judicial review, the Chief Justice buried in his opinion a few considerations for a sound rescission policy which would satisfy the APA. They should give everyone reading the decision a way forward not just for rescission, but for DACA itself. Although not presented explicitly as ways forward for DACA, they are in fact just that. Although not mandatory or required, the Chief Justice lays out on page 26 the following as suggestions for ways the administration could have taken into account the legitimate reliance interests of DACA recipients.

The government could have considered “a broader renewal period based on the need for DACA recipients to reorder their affairs.” It could have provided DACA recipients more “accommodating termination dates for [those] caught in the middle of a time-bounded commitment … [for] their course of study, [to] complete their military service, or finish a medical treatment regimen.” Finally, the Chief Justice suggests then-Secretary Duke could “have instructed immigration officials to give salient weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion.”

When first reading these suggestions, one is struck immediately by how carefully and exhaustively the plurality considered these issues. A careful reading shows that the Supreme Court did not just consider these ways the government could examine possible factors in properly rescinding the program under the APA but the court also is providing sub silento a path forward for DACA itself. In other words, were the government to truly weigh and give credence to the legitimate reliance interests of DACA recipients, then the DACA protections would have to continue into the future indefinitely so long as that reliance were to continue. At this point, everyone who has DACA relies on its protections and the benefits it affords.

If the government truly follows the advice provided in the Supreme Court’s opinion, DACA cannot be rescinded, at least without a case-by-case analysis and consideration of individual circumstances and reliance interests in each particular case. This is the key to the Supreme Court’s decision and the correct reading of the Chief Justice’s opinion.

Geoffrey A. Hoffman is a Clinical Professor and the Immigration Clinic Director at the University of Houston Law Center. This essay is written in Professor Hoffman’s individual capacity; his institutional affiliation is provided for identification purposes only.

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