Notice & Comment

“Pay[ing] Our Precedents No Respect”: Why the DACA and Remain-in-Mexico Rescissions Are Worlds Apart, by Benjamin Eidelson

Last week, in Biden v. Texas, the Supreme Court allowed a lower court to block the Biden Administration’s rescission of the Trump-era “Remain in Mexico” policy. Several commentators have suggested that this was the logical consequence of last year’s decision blocking Trump’s own rescission of the Obama-era policy of “Deferred Action for Childhood Arrivals” (DACA). On this blog, for example, Zachary Price argued that “the two cases should properly stand or fall together,” and that progressives who prevailed in the DACA-rescission case are now “paying the piper” for their “unfortunate” victory. Jonathan Adler likewise suggested that the Court’s order “appears to be an inevitable consequence of the DACA decision.” And the majority in the Remain-in-Mexico case evidently sought to foster the same impression by citing the DACA case, with no further explanation, in its order rejecting the Biden Administration’s stay request.

But while the two cases may appear alike—in each, the Court demanded a better explanation for the administration’s rescission of a discretionary immigration-enforcement policy—the legal merits are very different. So, as I’ll explain here, no rule of consistency requires those who supported the Court’s decision blocking the DACA rescission to view this latest order as relevantly alike. And far from being logically inevitable, the new majority’s refusal to distinguish between the two cases was a regrettable and entirely avoidable mistake.

In DHS v. Regents, the Court held that the Acting DHS Secretary’s memorandum rescinding DACA was arbitrary and capricious. Importantly, the Court justified that holding on two alternative grounds. The first was that Acting Secretary Duke “did not appear to appreciate the full scope of her discretion.” In particular, she rescinded DACA based on its alleged illegality, but she never acknowledged that the claimed legal defect pertained only to certain downstream benefits of deferred-action grants—benefits that actually “flow from a separate regulation.” As a result, Duke failed to acknowledge the possibility of redressing that alleged illegality while preserving “the forbearance policy at the heart of DACA” itself. As I’ve argued elsewhere, this was a fundamental error that left the decision to rescind the DACA Memorandum itself unexplained and unjustified. And as the Court made clear, “[t]hat omission alone render[ed] Acting Secretary Duke’s decision arbitrary and capricious” (emphasis added).

By the same token, this defect in the DACA rescission alone distinguishes the Remain-in-Mexico case. After all, there is no allegation that the Biden Administration failed to appreciate or acknowledge that it could lawfully maintain the Remain-in-Mexico policy if it wished to do so. To the contrary, Secretary Mayorkas expressly made a policy-based choice between “continuing MPP, modifying it in certain respects, [and] terminating it altogether.” Since Regents’ first and principal holding has no analogue in the Remain-in-Mexico case, one can perfectly well think that Regents was rightly decided—based simply on that first holding—and that the Remain-in-Mexico ruling was not.

To the extent that Regents does bear on the Remain-in-Mexico case, it is only because of the Regents Court’s alternative holding—namely, that Secretary Duke had “failed to address whether there was ‘legitimate reliance’ on the DACA Memorandum.” Again, it bears emphasis that one could think this second holding was entirely misguided and still appreciate that the proper outcomes as to the DACA and Remain-in-Mexico rescissions were different. Even if Regents’ “reliance” analysis did support the result in the Remain-in-Mexico case, therefore, it would still be wrong to say that progressives are somehow paying the fair price for persuading the Court of the DACA rescission’s illegality. At most, they would be paying a price for the Court’s inclusion of an unnecessary alternative holding in its Regents opinion.

But even that isn’t right, because the cases are eminently distinguishable from the perspective of Regents’ second holding, too. The key point is that, in the DACA case, the operative decision memorandum totally failed to acknowledge or discuss any real-world consequences of the rescission. (A later memorandum was dismissed, rightly in my view, as a post hoc rationalization.) That disregard of consequences is just what one should expect in a decision predicated solely on a claim of legal compulsion: By the lights of the agency’s own reasoning, the real-world effects were irrelevant. So there was no indication that the pros and cons of rescinding DACA, as a matter of immigration policy, had been considered at all. And if one took the agency’s own explanation seriously, one would have to assume that they had not been.

The Court underscored the stakes of this wholesale failure in Regents by cataloging several of the interests that, according to “[r]espondents and their amici,” the agency should have weighed in a policy-based assessment. These ranged from harms to DACA beneficiaries themselves, to harms to their U.S.-citizen children, to fiscal impacts for state and local governments. Some of these, as I’ve suggested elsewhere, are not usefully labeled as “reliance” interests. They are better understood as applications of the simpler maxim that agencies ought to weigh significant costs of their choices. But, in any event, this paragraph in Regents certainly did not commit the Court to invalidating an agency’s action whenever the agency fails separately to discuss every affected interest that resembles one that was highlighted by the plaintiffs or their amici in Regents. As I’ve noted, Secretary Duke never made a policy-based judgment about the costs and benefits of rescinding DACA at all. So the Court sensibly held that, when an agency is faced with a decision of such profound and wide-ranging consequence, zero consideration of any of its costs for affected parties will not do. Precisely because Regents was such an easy case, however, that holding committed the Court to nothing with respect to the degree or form of explanation that would suffice.

And viewed in that light, Secretary Mayorkas’s memorandum explaining the termination of the Remain-in-Mexico policy easily could have been judged sufficient. The memorandum goes on for pages about the policy-based assessment underlying that decision. It acknowledges “the impact such a decision could have on border management and border communities, among other potential stakeholders,” and it points to “other tools the Department may utilize to address future migration flows in a manner that is consistent with the Administration’s values and goals.” Nobody who reads the memorandum in its real-world context could seriously think that Mayorkas had simply failed to notice—or, as in the DACA case, had bracketed as irrelevant—the putative immigration-policy benefits of the Remain-in-Mexico policy, including the kinds of deterrence interests that Texas and other states claim in the continuation of that policy. Rather, Mayorkas openly rejected Texas’s favored approach as not “consistent with the Administration’s broader policy objectives.”

That kind of value-laden decisionmaking regarding complex issues of policy is supposed to be reviewed deferentially. And it completely lacks the buck-passing quality that, as I argued in a recent article, animated the Court’s accountability-forcing response in Regents. Indeed, whereas Regents seemed calculated to promote political accountability for important decisions, the Court’s action here—allowing a Texas district court to thwart the Biden Administration’s choice to use its discretionary authority in accord with its avowed “vision and values”—does just the opposite.

None of this is to deny that there is ample room for disagreement about how much explanatory detail courts should demand in the name of arbitrariness review. There may even be room for disagreement about whether, under the appropriate standard, Mayorkas’s explanation here sufficed—or whether, specifically, his discussion of particular alleged “reliance” interests sufficed. But no matter how one calibrates that threshold, the idea that the Court was committed to any view of the matter by its decision in Regents is not plausible. And likewise, those who objected to the Trump Administration’s effort to rescind DACA without owning that calamitous policy choice should feel no pressure whatsoever to take the same view here.

Of course, the invocation of Regents in the Court’s unsigned order suggests that at least five of the current Justices do view the DACA and Remain-in-Mexico cases as analogous—or at least that they decided to treat the cases as such. That is unfortunate, but it was by no means inevitable. As Justice Kagan once wrote for the Court, “we pay our precedents no respect when we extend them far beyond the circumstances for which they were designed.” The majority in the Remain-in-Mexico case—which included at most one member of the Regents majority, and might have included none—paid Regents no respect here.

Benjamin Eidelson is an assistant professor at Harvard Law School. He served as co-counsel for some of the respondents in DHS v. Regents.

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