The Solicitor General's Reply Brief Did Not "Reverse Position" on the Nielsen Memorandum

In the circuit courts, DOJ cited the Nielsen memorandum as providing an "independent" basis to rescind DACA

|The Volokh Conspiracy |

The DACA litigation turns, in part, on two separate memoranda issued by two Homeland Security Secretaries: (1) a memorandum from Secretary Elaine Duke, and  (2) a memorandum from Secretary Kirstjen Nielsen. The latter document was created after Judge John Bates (DDC) asked the government to provide a further explanation for its decision.

In a recent post, Andy Pincus was surprised at how the Solicitor General characterized the interplay between these memos. (I am grateful to Andy's company and camaraderie as we waited on the cold and rainy bar line together early Tuesday morning.) He wrote:

These questions of accountability and procedural regularity are heightened by the quite surprising reply brief filed by the Solicitor General last week, which reverses position on the Nielsen memo, urging the Court to consider it a new agency action and to uphold DACA's termination based on the policy explanations offered by Secretary Nielsen.

I don't see a reversal at all. I checked the government's briefs in the lower courts, and found very similar arguments. Specifically, DOJ argued that the Nielsen Memorandum provided an "independent" policy justifications to rescind DACA. The Court may find those rationales unpersuasive, or conclude that the Nielsen memo is outside the administrative record, but the government preserved the argument. Here are some excerpts (with my emphasis added).

D.C. Circuit Reply Brief:"[A]s DHS did not need to use notice-and-comment rulemaking to rescind DACA, the Nielsen Memo could stand as an independent basis to rescind DACA even if the Duke Memo were somehow insufficient on its own." (at 22-23)

Second Circuit Reply Brief: "The Nielsen Memo briefly elaborates on the Duke Memo, which the district court already considered, and this Court can and should assess that further explanation itself.  Indeed, the Court may consider the Nielsen Memo on its own terms, including insofar as its reasoning goes beyond the Duke Memo, given that, as the district court recognized, rescinding DACA does not require notice-and-comment rulemaking." (at 3-4)

These briefs were consistent with how SG Francisco presented his argument before the Court. Indeed, he used the phrase "independent" several times:

GENERAL FRANCISCO: Sure. For a couple of reasons, Your Honor. First, because she sets forth separate and independent bases justifying the rescission: first, her belief that it's illegal; second, her belief that there are serious doubts about its illegality; and, third, her conclusion that, as a matter of enforcement policy, the Department of Homeland Security is against these kinds of broad-based non-enforcement decisions.

GENERAL FRANCISCO: –that's precisely what Secretary Nielsen's memo did. It did two things. First, it explained the basis for Secretary Nielsen –Secretary Duke's decision, but, secondly, it set forth her own independent judgment.

GENERAL FRANCISCO: I –I simply disagree with that. When she specifically says that she is setting forth separate, separate and independent grounds justifying the rescission, I don't think that there's any fair way to read that but by saying that she would have rescinded it based on any of the independent grounds, which brings me

The SG's reply brief did not "reverse position" on the Nielsen memorandum.

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  1. “The Solicitor General’s Reply Brief Did Not “Reverse Position” on the Nielsen Memorandum”

    This headline should winnow out all but the most dedicated legal nerds.

    Those who just come to this blog for the fart jokes won’t be interested.

  2. Your not being an admin law person is getting you into trouble here, because you’re conflating a number of entirely distinct positions. First position: the Nielsen Memo says that a variety of reasons for rescinding DACA are independent and sufficient grounds for rescinding DACA, in her view. Second position, pretty closely related to the first: the Nielsen Memo provides a policy justification for rescission that is independent from its and the Duke Memo’s legal grounds, on which the rescission may be sustained. Third position, found by you in the government’s lower-court briefs: the Nielsen Memo is not just a post-hoc statement of reasons because rescinding DACA did not require notice-and-comment rulemaking. Note that the conclusion doesn’t follow; though the Nielsen Memo wouldn’t have violated the APA’s procedural requirements had it been labeled as a new agency action, it doesn’t follow that it was one because it would have been permissible to label it as one. Still less does it follow that its reasoning can be reviewed because it wouldn’t have violated notice-and-comment were it a new recission, whether or not it actually was one. This blatant non sequitur, to me, confirms Pincus’s claim that below the government went out of its way not to say that Nielsen’s memo was a new agency action. Fourth position: according to Pincus, the SG now says the Nielsen Memo is a new re-recission of DACA, and is therefore reviewable, in response to the respondents’ clever argument that if all it is is a statement of new reasons in support of its author’s predecessor’s decision, the Court can’t look to it. That is very different from position 3. Of course the government has always maintained that the courts can review Nielsen’s reasons, and Pincus doesn’t deny that, but what he does claim is that the government’s theory for why the courts can has changed in a fundamental way.

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