U.S. Supreme Court Blocks President Trump’s Attempt to Rescind DACA

Anna Marquardt

Elon University School of Law, J.D. Candidate 2021

On June 18, 2020, Chief Justice John Roberts delivered a 5-4 decision in Department of Homeland Security v. Regents of the University of California (consolidated with Trump v. NAACP) in which the United States Supreme Court ruled that the Trump administration’s actions to rescind DACA were “arbitrary and capricious” and thus a violation of the Administrative Procedure Act. The opinion can be found here. https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf

In the summer of 2012, after Congress failed to reach a potential legislative compromise on immigration, the Obama Administration announced, by executive branch memorandum, a program known as the Deferred Action for Childhood Arrivals, or DACA. The program, which does not provide a path to citizenship, allows certain undocumented people, who meet very specific criteria, to be granted renewable two-year deferrals on potential deportation. This program, a form of prosecutorial discretion, notably sought to deprioritize the deportation of many younger people who entered the United States under the age of 16 and had no real memory of any other home. There are a several other requirements that can be found here: https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca#guidelines.

In November 2014, DHS wrote a memorandum announcing it was expanding eligibility for DACA, as well as creating a related program, Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. The program would offer essentially the same benefits given to DACA recipients to their parents as well. 

However, a 26 state lawsuit, led by Texas, challenged DAPA by arguing that its expansion “violated the APA’s notice and comment requirement, the Immigration and Nationality Act (INA), and the Executive’s duty under the Take Care Clause of the Constitution.” This led to a nationwide preliminary injunction from DAPA and the DACA expansion. The decision was upheld by the Court of Appeals for the Fifth Circuit, and affirmed in an equally divided vote by the U.S. Supreme Court. United States v. Texas, 579 U. S. ___ (2016) (per curiam). 

In September 2017, Trump administration Attorney General Jefferson B. Sessions III advised DHS to rescind DACA, stating that DACA would “likely” share a similar fate as DAPA, as DACA shares “the same legal . . . defects that the courts recognize as to DAPA.” A memorandum terminating the program was issued by Acting Secretary Elaine C. Duke, based on the Attorney General’s advice, and was subsequently challenged by affected individuals and others who claimed the Acting Secretary had violated the APA by not adequately addressing essential factors in the memorandum. Several of the lawsuits challenging this recission of DACA were consolidated and were addressed by the Supreme Court in this most recent opinion.

Chief Justice Roberts, siding with the four more liberal members of the Court concluded that “[t]he Acting Secretary did violate the APA, and that the rescission must be vacated” on page 2 of the opinion. The Court reasoned that the dispute at hand was not about whether DHS could rescind DACA, but whether they had followed the proper procedure required by the APA in doing so. The Court majority, narrowing its holding to the limited issue of whether the Government had properly rescinded DACA under the APA, chose not to address the overall constitutionality of whether DACA could be issued in the first place.

“In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for ‘[e]stablishing national immigration enforcement policies and priorities.’ 116 Stat. 2178, 6 U. S. C. §202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.” 591 U.S. 19 (2020).

Chief Justice Roberts drew this conclusion by looking to a leading case in administrative law, Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. The case involved the National Highway Traffic Safety Administration (NHTSA), which required motor vehicles produced after a certain year to have either airbags or automatic seatbelts. However, before the requirement went into effect, NHTSA deduced that automatic seatbelts were not the most effective form of protection, and thus should be fully rescinded. The Supreme Court reasoned that “total rescission was arbitrary and capricious.” It did “not cast doubt on the efficacy of airbag technology or upon the need for a passive restraint standard” 463 U.S. 47 (1983). Given NHTSA’s prior judgment that “airbags are an effective and cost-beneficial lifesaving technology,” we held that “the mandatory passive restraint rule [could] not be abandoned without any consideration whatsoever of an airbags-only requirement.” Id., at 51. 

The Supreme Court applied this reasoning to the case at hand, stating that even if DHS cannot legally extend work authorization and other benefits to those who are DACA recipients, it can only be supported by “disallow[ing]” benefits. In other words, it does not “cast doubt” on the “legality of forbearance” on DHS’ original reasons for extending privileges to DACA recipients. Thus, given DHS’s earlier judgment that forbearance is “especially justified” for “productive young people” who were brought here as children and “know only this country as home,” App. to Pet. for Cert. 98a–99a, the DACA Memorandum could not be rescinded in full “without any consideration whatsoever” of a forbearance-only policy. 463 U. S., at 51. 

The ruling has temporarily prevented President Trump’s attempt to eliminate DACA, and thus nearly 700,000 DACA recipients have continued protection from deportation and denial of federal benefits and work permits. Because the holding in this case was limited, the Trump Administration may attempt to rescind DACA again, provided it complies with the requirements of the Administrative Procedure Act. Therefore, a more permanent resolution addressing the future of these DACA recipients may need to come from Congress.