The U.S. Supreme Court on Tuesday heard oral arguments on whether courts can review the Trump administration’s decision to end the Deferred Action for Childhood Arrivals program and, if so, whether the decision to wind down the program was legal.
The court’s decision will affect the fate of around 700,000 current DACA recipients, known as Dreamers, who have been granted temporary protection from deportation under the Obama-era program, which the Trump administration moved to rescind on Sept. 5, 2017. Days later, the University of California system sued the Department of Homeland Security, alleging that by rescinding DACA, the agency violated the Administrative Procedure Act and the right to procedural due process under the Fifth Amendment. That case has been consolidated with two others before the Supreme Court.
U.S. Solicitor General Noel Francisco argued on behalf of the DHS that the decision to end DACA falls within the agency’s enforcement discretion and is not subject to review, citing the 1985 case Heckler v. Chaney, in which the court held that an agency’s decision not to pursue enforcement actions isn’t reviewable unless required by statute.
Justices Neil Gorsuch and Stephen Breyer asked whether the many reliance interests associated with DACA — not just of the Dreamers, but also the employers, universities and other institutions that have a stake in continuing the policy — make the decision to end the program reviewable. Breyer noted that hundreds of schools, municipalities, religious groups, businesses and military organizations filed amicus briefs on behalf of the DACA recipients, most of them listing reliance interests.
Theodore Olson, representing DACA recipients, took up this line of argument. “The administration, when it does that kind of a decision with respect to the lives of hundreds of thousands of people, which has engendered reliance … then all we’re saying is that there’s a presumption of reviewability of that decision,” he said.
“To me, the greatest hope within the courts [for DACA recipients] would be these reliance interests,” said Ming Hsu Chen, associate professor of law at the University of Colorado. “It did seem that the justices were raising that issue in the context of reviewability in a way that might carve out certain exceptions to what otherwise is typically very broad enforcement discretion in the area of immigration law.”
If the court decides the administration’s decision is reviewable, it will also have to consider whether the way in which the agency reached and justified that decision was lawful and not, as the lawsuit claims, “arbitrary and capricious” under the APA.
In her 2017 memorandum to end DACA, Elaine Duke, acting Secretary of Homeland Security under Trump at the time, cited then-Attorney General Jeff Sessions’ determination that DACA was unconstitutional as the rationale for rescinding the program. In 2018, Kirstjen Nielsen, who headed the agency after Duke left, issued another memorandum in response to a request from a federal judge asking the agency to expand on its reasons for ending DACA.
Francisco argued that, in addition to reiterating DACA’s illegality, the Nielsen memorandum acknowledges some of the reliance interests created by DACA and adds policy reasons for the decision.
Olson and California Solicitor General Michael Mongan argued that only the rationale given at the time of the decision — the Duke memorandum’s claim that DACA was illegal — could be considered in deciding whether the agency’s reasons for winding down the program were sound. If the DHS wants to add policy reasons, they argued, the case should be remanded for the administration to give a full explanation of their decision to rescind.
“The thing with administrative decisions is that you have to rely on what the agency said at the time that they made their decision to rescind,” said Violeta Chapin, associate clinical professor at CU Law. “So, they’re saying you can’t add it on later. You have to
Sending the case back down would require the administration to own its policy reasons for wanting to end DACA instead of just relying on its claim that the program is illegal.
“If it’s a matter of discretion, the court has less leeway to examine their decisions,” said Chen.
“But they also lose ground because they no longer have the political insulation of saying that their hand was forced by the law.”
With a court ruling expected in the summer of 2020, Trump could be forced to defend controversial immigration enforcement moves in the middle of the election.
On the other hand, if the DACA wind-down does move forward, the Dreamers, whose information is in the hands of the government, could be particularly vulnerable to deportation.
“They are the proverbial low-hanging fruit and they’d be easy to find, as opposed to the other 11 million undocumented people,” said Chapin.
“Sending [the case] back would make no sense because the agency has already acted,” said Francisco, rejecting the idea that the Nielsen memo amounted to a post hoc rationalization for ending DACA. “It’s the official position of the agency set forth by the agency.”
Later, in rebuttal, Francisco told Justice Ruth Bader Ginsburg: “We own this.” He added that the agency owns both the Nielsen memo’s policy rationale and its argument that DACA is an illegal policy.
A few justices seemed skeptical that remanding the case to make the agency give a fuller account of its rationale would do much other than delay DACA’s inevitable end.
“What good would another five years of litigation over the adequacy of that explanation serve?” Gorsuch asked Olson.
Breyer asked Mongan what the point of “playing ping pong” with the agency was, quoting a 1969 Supreme Court opinion from former Justice Abe Fortas. Both attorneys gave the same answer: because nobody really knows what the administration would do if forced to justify its decision again.
Nobody knows what the court will decide either, but the analysis from experts and the media tilted in the agency’s favor in the days after the arguments.
“It’s always hard to predict what the Supreme Court will do, but a lot of it seems rather foreboding for the future of DACA,” said Chen.
“I think a lot of people are looking at Chief Justice John Roberts,” Chapin said, citing his recent decision in the census case, in which he sided with the four liberal justices in ruling the administration’s reasons for adding a citizenship question were a pretext. But even if Roberts is swayed similarly in this case, the Dreamers might not be better off for long.
“Then Trump could simply say, ‘I’m ending the program now because of my policy decision,’” Chapin said.
“It’s just a temporary reprieve anyway. And really what we need is congressional action.”
— Jessica Folker