The Supreme Court has ruled that President Trump cannot unilaterally end the Deferred Action for Childhood Arrivals program begun by President Obama. President Trump had sought to use his executive authority to end the program which exercised “prosecutorial discretion” in delaying deportation of illegal immigrants who arrived as children and met certain other requirements. An obvious question is how the Supreme Court could overrule an executive decision to end a program that had its origins in another executive decision.
The answer lies in the Administrative Procedures Act. This is the same federal law that tripped up the Trump Administration’s attempt to add a citizenship question to the census last year. Readers may recall that the requires courts to strike down government actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Today’s decision was written by Chief Justice Roberts and joined in full by Justices Ginsburg, Breyer, and Kagan. Justice Sotomayor joined in all but Part IV of the opinion, which yielded a 5-4 decision against the president.
The ruling stemmed from the fact that Elaine Duke, former United States Deputy Secretary of Homeland Security at the time of Trump’s decision to end DACA, and former Secretary of Homeland Security Kirstjen Nielson provided inconsistent and incomplete explanations of why the DACA rule was being rescinded.
Writing for the Court, Roberts explained, “Duke treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm— treating a rationale that applied to only part of a policy as sufficient to rescind the entire policy.”
“In failing to consider the option to retain deferred action, Duke ‘failed to supply the requisite ‘reasoned analysis,’”Roberts further explains.
The Court also found that Duke failed to determine whether there was “‘legitimate reliance’ on the DACA Memorandum.”
“DHS has flexibility in addressing any reliance interests and could have considered various accommodations,” Roberts explained for the Court. “While the agency was not required to pursue these accommodations, it was required to assess the existence and strength of any reliance interests, and weigh them against competing policy concerns.”
Roberts added that Nielson’s explanations for the rescission added “several new justifications” to the rescission while taking no new actions. The Court determined that since no additional steps were taken, Nielson “was limited to elaborating on the agency’s original reasons. But her reasoning bears little relationship to that of her predecessor and consists primarily of impermissible ‘post hoc rationalization.’”
The Court found that Duke’s two errors were “arbitrary and capricious” and thus were in violation of the Administrative Procedures Act.
In Part IV of the ruling, the majority less Sotomayor found that “respondents’ claims fail to establish a plausible inference that the rescission was motivated by animus in violation of the equal protection guarantee of the Fifth Amendment.”
“The appropriate recourse is therefore to remand to DHS so that it may reconsider the problem anew,” Roberts wrote.
Justice Thomas filed an opinion that concurred in part and dissented in part. This opinion was joined by Justices Alito and Gorsuch. Justices Alito and Kavanaugh also wrote opinions that both dissented and concurred in part.
The conservative wing of the Court took issue with the majority opinion that DHS should try again. Alito wrote, “The Court still does not resolve the question of DACA’s rescission. Instead, it tells the Department of Homeland Security to go back and try again.”
Thomas attacked DACA’s legal status, writing, “No party disputes that the immigration statutes lack an express delegation to accomplish either result. And, an examination of the highly reticulated immigration regime makes clear that DHS has no implicit discretion to create new classes of lawful presence or to grant relief from removal out of whole cloth. Accordingly, DACA is substantively unlawful.”
“This conclusion should begin and end our review,” Thomas continued, adding, “The majority’s contrary holding—that an agency is not only permitted, but required, to continue an ultra vires action—has no basis in law.”
“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas wrote. “The Court could have made clear that the solution respondents seek must come from the Legislative Branch.”
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