In June 2020, the Supreme Court ruled on the Deferred Action for Childhood Arrivals (DACA) case, finding that the Trump administration was arbitrary and capricious in its rescission of the policy in violation of a core administrative law principle. According to the Court, the administration failed to consider the reliance interests of DACA recipients in its decision to rescind the policy. The ruling, met with much enthusiasm, functionally kept in place the program that has positively changed the lives of more than 800,000 recipients, offering them economic and education opportunities. Some civil rights advocates heralded the ruling as a victory for the immigrant community; admittedly, a different outcome, upholding the rescission, would have had immediate reverberating negative repercussions for DACA recipients. Beyond the functionality of the opinion, examining the DACA case through a CST lens provides insights into the ways in which issues of race intersect with administrative law.
What is CST?
CST has a rich theoretical grounding in fields such as systems thinking, abstract mathematics, and cybernetics, fields that have focused on the interrelated elements in systems and how their interconnectedness impacts processes and outcomes in these, often natural, systems. CST was born out of the recognition that, though social systems share conceptual overlap with natural systems, the former include social actors and thus necessitate a socio-constructivist analysis and interpretive perspective. According to CST, social actors are socialized in ways in which they center certain values and facts, and where their experiences inform their values and what they consider relevant in any situation of interest. When considering any situation of interest, social actors draw on their values, the facts they deem relevant, and their experiences to understand, simplify, and make claims about the situation of interest. These simplified mental framings are what CST identifies as “systems,” and the values, facts, and experiences social actors deem relevant bound these socially-constructed systems. Because social actors are thus inherently partial and their choices value-laden, they hold diverse viewpoints and the mental framing of any situation of interest (i.e., system) will vary—for example, social actors will inevitably respond differently to questions such as, which stakeholders are/should be relevant in the system? Which values, framings, and stories are (should be) reflected in the discussion? And ultimately, whose viewpoints are (should be) adopted in the resolve? A critical tenet in CST is the identification of the boundaries that social actors draw to bound their systems, which allows for a critique of the boundaries, and to identify which elements are centered, excluded, or marginalized (i.e., neither included nor excluded) in the system.
The Legal System Through the CST Lens
CST challenges the value-free assumptions and aspirations in the legal system. The field of law is predominantly taught and discussed as an autonomous field, with specialized language and a distinct mode of reasoning. Neutrality is consistently encouraged and encapsulated in the old adage “justice is blind.” Arguably, these assumptions are readily apparent in administrative law. This area of the law is thought to focus on procedural and structural matters and thus to bear less relation to substantive issues of race. Such an approach largely aligns with a view of the world where objectivity and partiality are not only assumptions but aspirations. CST invites social actors to recognize and examine the value-laden aspects of decision-making in law and policy across all three different branches of government and in all areas where social actors make choices, render judgments, and take action. CST’s theoretical assumptions also challenge the idea that the law is autonomous and self-regulated and posit rather that the law impacts society and conversely the social actors restructure the law across social contexts; ultimately, social actors are creating, rescinding, and reshaping the law in different social contexts. Additionally, once adopted, rescinded, or reshaped, laws and policies have a human impact, and these considerations also matter, because they highlight the impact of the law on society and underscore the notion that the law is not autonomous and does not occur in a vacuum.
Deferred Action for Childhood Arrivals (DACA)
With its complex developments and influx of stakeholders involved in the DACA policy and lawsuits, the policy offers a case through which to examine the racialized nature of administrative law. CST is a useful lens to identify the stakeholders involved in creating, rescinding, and ruling on the DACA case, and the interests they center, exclude, or marginalize.
Created through the executive branch’s power to execute the law, DACA has been a large-scale natural experiment: what happens when the government defers deportation for hundreds of thousands of young undocumented immigrants and gives them the ability to work? The policy has resulted in financial and social gains for recipients and the national economy. But because the policy did not provide a permanent solution, recipients experienced limited social inclusion.
Though the policy was rooted in progressive goals advanced by the Obama administration, the policy largely centered the interests of a relatively small proportion of undocumented immigrants. Some have criticized the administration for taking a neoliberal approach that selected immigrants deemed deserving, while most of the millions of undocumented immigrants remained in the shadows, their interests marginalized. The undocumented immigrants who could benefit from the policy also provided great economic benefit to the country. Both the interest in having opportunities through lawful status (i.e., deferred deportation and work authorization) and the U.S.’s interest in economic benefits converged.
If the creation of the policy centered the needs of DACA recipients—a small section of the undocumented immigrants—the rescission marginalized these same interests. The rescission was unsurprising, given that then-candidate Trump consistently espoused an anti-immigrant sentiment during the campaign. His message was simple: he centered and valued the interests of Americans first, and defined Americans as exclusive of the undocumented immigrant population, regardless of how undocumented immigrants identified themselves. As I have argued elsewhere, he followed his approach with changes in policies once he took office. “The rule of law” and “law and order” were the common phrases Trump used to justify his choices in undoing any prior immigration policies that centered the interests of and were beneficial to undocumented immigrants, policies that his predecessor, Obama, created. But scholars have raised issues with these concepts as used in politics, namely, that they purport to paint a value-free, objective, and autonomous legal system—assumptions which CST directly challenges. Additionally, scholars have traced the roots of the concepts to racist ideologies, dating back to the increase in mass incarceration for minoritized (i.e., Black and Brown) populations in the United States. In sum, the rescission de-centered and effectively marginalized the needs and interests of DACA recipients.
Legal advocates rushed to the courthouse in jurisdictions some have identified as progressive and/or liberal. Though riddled with legal issues in the fields of immigration and constitutional law, the substantive legal question before the courts, including the Supreme Court, was at its heart an administrative law question: was the Trump administration “arbitrary and capricious” in its decision to rescind the policy? In other words, did the administration remove the policy lawfully? The case made its way to the Supreme Court, the highest court of the land, where the Justices were to finally settle the legal question.
The Supreme Court ruling and opinion had the functional effect to leave in place a policy that extends protection to hundreds of thousands of undocumented immigrants, and simultaneously illustrates the ways in which the court marginalized and decentered the interests, values, needs, and stories of DACA recipients. As a threshold matter, the case raises the issue of the social construction of the concept “arbitrary and capricious.” Through a CST lens, the question arises: “arbitrary and capricious” according to whom? A likely answer may be: according to the definition which has developed through precedent. However, such a response assumes that legal rules are largely autonomous. But rules are created through social interpretation, and the interpretation is left to the stakeholders and decision makers involved. Precedent is ultimately reshaped by the judges and justices who must interpret such precedent. This is not only a theoretical proposition. Sociolegal scholars have empirically documented the ways in which judges’ backgrounds and experiences influence their decision-making and rulings. Additionally, other social scientists have documented the ways in which judicial rulings have disenfranchised and failed to center the interests of ethnoracially marginalized communities. For example, Bell (1979) has explained that when progressive rulings emerge, such as Brown v. Board, such rulings often serve and converge with the needs of the predominant culture and not those of ethnoracially marginalized communities at the center of the legal cases.
The Chief Justice engages in such social construction when he attempts to explain what it means for the government to engage in “arbitrary and capricious” behavior. Throughout the opinion, he employs a lens of legal formalism and colorblindness, two concepts which give the allure of neutrality. But even neutrality is a position that has repercussions. For example, research has documented how these concepts can harm communities of color when they lead to false equivalences that weigh all arguments equally even when the arguments dehumanize communities of color.
The Chief Justice begins the opinion with a discussion of the policy and its context, but he largely ignores the social context in which the policy was created, who benefited from the policy, or the stories of the individuals who stood to benefit from the policy, a choice which would have humanized the lives of current and past recipients. While centering the lives of recipients who will be directly impacted by the ruling is not required, neither is his approach to syphon any discussion of extra legal issues that would have contextualized the case before the Court, the policy, and the recipients. The Supreme Court has discussed the law and its relationship to society in other cases, including Brown v. Board. On the contrary, in this case, the language the Chief Justice uses (i.e., “illegal aliens”) in introducing the policy and its history is often used to dehumanize the undocumented community, language not germane to the discussion.
The Chief Justice subsequently approaches the discussion of the meaning of “arbitrary and capricious” in a similar fashion. He focuses on whether the administration considered the reliance interests of DACA recipients in choosing to rescind the policy, finding the administration did not consider the reliance interests of the recipients, if at all. Arguably, such a discussion could surface an acknowledgment of what is at stake for recipients, for example, economically and educationally, but the Court gives little to no real substantive discussion of such. The analysis is largely devoid of any discussion about the impact of the rescission and the lack of permanency with(out) DACA. The recipients’ stories are largely absent. Counter storytelling has been used as a way to re-center the stories and counter the discussions when marginalized communities are discussed in the dominant narrative. Counter storytelling humanizes the lives of those who have been largely racialized in the U.S. and are directly impacted by the rulings. And in removing humanity, it is easier to discuss and dispose of issues without having to grapple with the faces that will be deeply impacted and the lives that will be changed as a result of the ruling and the interpretations. Here, the recipients’ stories were largely absent from the case. Rather than humanizing the largely racialized lives of recipients of the policy, the Court concludes by describing the situation as a “problem” that the Department of Homeland Security (DHS) must consider anew.
Notably, the only discussion of the racialized nature of the DACA case surfaces in Justice Sotomayor’s discussion of the Equal Protection Clause claim. The Justice contextualizes the history leading to the rescission, focusing on the role of race and ethnicity. The claim is substantively related to issues of discrimination based on race, and arguably provides the Chief Justice an opportunity to acknowledge some racialized aspects of the case before the Court. However, the Chief Justice adopts the same colorblind approach as before and disposes of the claims by stating,
“Finally, the cited statements [Justice Sotomayor made] are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not “identif[y] statements by [either] that would give rise to an inference of discriminatory motive.” 291 F. Supp. 3d, at 278. Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts— do not qualify as “contemporary statements” probative of the decision at issue. Arlington Heights, 429 U. S., at 268. Thus, like respondents’ other points, the statements fail to raise a plausible inference that the rescission was motivated by animus.”
His approach reflects an effort to separate the rescission from any context whatsoever. To illustrate, he states that Acting Secretary Duke and the U.S. Attorney General, who announced the rescission, did not make the statements President Trump did. While true, such a characterization discusses these government actors who work in the executive branch, which President Trump leads, as completely separate entities divorced from President Trump’s influence and ideology. Similarly, he avoids using the word “racism” or “racist” to describe statements that marginalized communities have often described as racist. Instead, he chooses to call the statements “critical,” a colorblind approach that fails to acknowledge the ways in which the lives of marginalized communities are racialized. The colorblind approach also fails to incorporate and marginalizes the voices of recipients who identified the statements as racist throughout the litigation. In sum, even though the ruling kept a policy alive for hundreds of thousands of undocumented immigrants who have come to depend on the policy, the approach the Chief Justice used consistently marginalized and “othered” recipients.
CST with its wide-ranging theoretical underpinnings underscores the messiness entailed in the interactions between the law and society, the ways in which the law shapes society but also the ways in which social actors shape the law through decision-making processes. The values, facts they consider relevant, and underlying assumptions social actors carry have a bearing on their framing of any situation and the claims they make about the situation. Legal formalism and colorblindness are only centered as much as the Justices choose to make them so, and conversely the lives of those most impacted by the ruling—the recipients, their stories, values and framing—are (de)centered as much as the final stakeholders, the Justices, decide they should be. CST gives us hope for a tomorrow in which the laws and policies are crafted by those who are at the margins of the system but the demographics suggest will soon be at the center.
 The Supreme Court has used other terms to describe undocumented immigrants. Plyler v. Doe, 457 U.S. 202, 218-19 (using the term “undocumented resident aliens); McNary v. Hatian Refugee Ctr., 498 U.S. 479, 481 (using “undocumented alien” and “undocumented worker”); Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 (2009) (using “undocumented immigrants”); Arizona v. United States, 567 U.S. 387, 443 (2012) (using “undocumented alien”). Additionally, certain jurisdictions have recognized the use of the term “illegal alien” not only offensive but discriminatory. The New York City Human Rights Law states, in relevant part, “the use of language, including ‘illegal alien’ and ‘illegals,’ with the intent to demean, humiliate, or offend person or persons constitutes discrimination under NYCHRL.2.” At its core, this is an issue of humanity and how terms such as “illegal” are used to remove the humanity from others. Illegal is not a state of being but rather a term used to “other” a group of individuals. As Elie Wiesel stated, “so-called illegal aliens must know that no human being is illegal…Human beings can be beautiful or more beautiful, they can be fat or skinny, they can be right or wrong, but illegal?”