The Volokh Conspiracy

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Assessing the administrative law claims against rescinding DACA


On Sept. 6, immigration activists in Newark, N.J., protest the Trump administration's decision to end the Deferred Action for Childhood Arrivals (DACA) program. (Eduardo Munoz Alvarez/Getty Images)

President Trump's decision to rescind the Obama administration's Deferred Action for Childhood Arrivals (DACA) immigration policy has prompted substantial critical commentary and is already the subject of legal challenges.

Some, such as the University of Chicago's Daniel Hemel, have argued that rescission of DACA requires notice and comment. Others of us disagree. For some of the same reasons I believed the Obama administration's immigration initiatives were lawful, I think little stands in the way of the Trump administration's decision. (See also my co-blogger Ilya Somin's post making the case for DACA here.)

William Funk of the Lewis & Clark Law School is among those skeptical of the administrative law claims against the DACA rescission. As he is one of the nation's foremost administrative law scholars, I asked Funk to explain his position. His comments follow below.

There are currently two separate complaints filed against the Trump administration's rescission of the Deferred Action for Childhood Arrivals (DACA). One is by the attorneys general from sixteen blue states filed in the Eastern District of New York; the other is by the Regents of the University of California filed in the Northern District of California. Both claim the rescission is a violation of Due Process and the Administrative Procedure Act (APA). The APA claim is two-fold: that the rescission is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" and that, by failing to provide advance notice and comment, the rescission violates Section 553 of the APA. The complaint from the attorneys general adds a claim based on Equal Protection and the Regulatory Flexibility Act.

The first issue is likely to be whether any of these plaintiffs have standing to challenge the rescission, but in light of the ease by which a DACA recipient or applicant could be added to either suit or a new one, standing should not be an insuperable barrier in any case.

The acting secretary of homeland security justified the rescission on the basis that the attorney general had concluded that DACA was adopted "without proper statutory authority." The attorney general reached this conclusion because of his belief that DACA is not distinguishable in its legal justifications from the Deferred Action for Parents of Americans (DAPA), and DAPA was declared unlawful by the Fifth Circuit, and affirmed by an equally divided Supreme Court, as being "manifestly contrary" to the Immigration and Nationality Act (INA). If the attorney general is right, the government should win in these cases. In other words, if DACA was never lawful, its rescission, like the rescission of DAPA in June, would be a ministerial act that would not violate the Constitution or any statute.

But what if the attorney general is wrong, and DACA is not unlawful, would the rescission be unlawful? Probably not under most of the claims raised by the plaintiffs. The Due Process claims are likely to fail because none of the current plaintiffs have liberty or property interests that courts have recognized as protected by the Due Process Clause.

The attorneys general's Equal Protection claim is premised on the assertion that the rescission discriminates against Mexicans because of their national origin, relying on various statements made by Donald Trump before he became President regarding Mexico and Mexican unlawful immigrants. While the court decisions overturning the President's Executive Order on immigrants from specified nations relied in part on such unofficial statements by the President, this was rather extraordinary, and there it was the President who took the legal action. Here, it is the secretary of homeland security and the attorney general who have taken the action, albeit in accord with the president's wishes, and they have made no such statements. It is highly unusual to attribute the reason for an agency action to unofficial statements contrary to the official explanation, and it is virtually unknown to attribute the reason for an agency action to unofficial statements made by someone outside the agency when the person was a candidate.

The Regulatory Flexibility Act claim is that the rescission was made without a Regulatory Flexibility Analysis. This will almost definitely fail. The courts have been consistent in holding that such analyses are required only when an agency action directly regulates small entities (like small businesses). Here, the rescission would not appear to regulate anyone other than the DACA-affected individuals.

The APA notice-and-comment claim is a bit complicated, but in any case it is likely to fail as well. If DACA is authorized by statute and was properly adopted as a policy statement as claimed by the Obama administration at the time, then unlike the Fifth Circuit's decision with respect to DAPA, adoption of DACA did not need prior notice and public comment.

The APA has an exception from the notice-and-comment requirements for general statements of policy. However, if DACA was properly adopted as a policy statement without notice and comment, then the Supreme Court's recent decision in Perez v. Mortgage Bankers Ass'n would seem to say that rescission also could be done without prior notice and comment.

On the other hand, if DACA is authorized by statute, but it was not properly adopted as a policy statement, and instead required prior notice and comment, as the Fifth Circuit held was the case for DAPA, then again it would seem that rescission of an unlawful rule would not require prior notice and comment.

There is case law suggesting that an agency cannot generally rescind a rule that was adopted after notice and comment without the rescission also going through notice and comment just because the agency now thinks the rule is unlawful, but those cases are distinguishable. First, they involve rescission of a rule that had been adopted after notice and comment, and second, they did not involve rescission of a rule indistinguishable from a rule that a court had already found unlawful.

Finally, the APA claim that the rescission is arbitrary, capricious, an abuse of discretion, or contrary to law might have legs, if DACA is not itself unlawful. The reason is that the only justification given by the Department of Homeland Security (or the attorney general) for rescinding DACA is that it is unlawful. If that conclusion is incorrect, then there is no agency justification provided for rescinding DACA.

Normally, the lack of any justification would doom the decision as arbitrary and capricious. Here, however, if DACA is lawful, it may be because it was exercise of prosecutorial discretion, as the Obama administration maintained. But the APA precludes judicial review of actions "committed to agency discretion by law," and the Supreme Court has said that the exercise of prosecutorial discretion falls within that exception to judicial review. Thus, it could be that the rescission of DACA, if done as an exercise of prosecutorial discretion, would itself be exempt from APA review. But this would require the Department of Homeland Security to claim that it was rescinding DACA as an exercise of prosecutorial discretion, which it has not done. Of course, this would not preclude the department from subsequently making such an assertion to avoid judicial review.

In short, if DACA itself is unlawful, as asserted by the attorney general, the government should win. But, if DACA is lawful, then one APA claim might possibly succeed. Before any of these cases would reach a final conclusion, however, they would likely go to the Supreme Court, and that would take a long time. Thus, whether the plaintiffs can obtain a preliminary injunction against the rescission would be critical. It is perhaps ironic that if the plaintiffs succeed in obtaining such a preliminary injunction, it would take the heat off Congress from having to find a solution, and its solution would likely be better for the Dreamers than a win in court.

I would add to Funk's post that it is possible that individual DACA beneficiaries may have specific claims, such as if the Department of Homeland Security used information submitted as part of DACA applications in deportation proceedings, but any such claims would be as-applied challenges to specific actions, not challenges to the underlying policy decision.