The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court issued only one decision today, but it was another big one: Department of Homeland Security v. Regents of the University of California - the DACA case. In what was largely a 5-4 decision, the Court held that the Trump Administration's decision to rescind the Obama Administration's Deferred Action for Childhood Arrivals policy was subject to judicial review and was arbitrary and capricious under the Administrative Procedure Act. The Court also rejected, by an 8-1 vote, the claim that the DACA rescission violated the Equal Protection Clause, though there is no majority opinion on that point.
Chief Justice Roberts wrote the opinion for the Court (and a four-justice plurality opinion on the Equal Protection Claim), joined by the Court's four liberal justices (save for Justice Sotomayor on the that latter claim). Justice Thomas wrote a dissent, joined by Justices Gorsuch and Alito. Justice Kavanaugh also wrote a dissent. Note that both dissents were, technically, dissents in part and opinions concurring-in-the-judgment in part, as the dissenters all agreed with the Chief Justice's ultimate resolution of the Equal Protection claim.
The balance of this post will provide some highlights and initial reactions to the decisions. I am confident that my co-bloggers Ilya Somin and Josh Blackman will have more to say about this decision as well (and I suspect they will disagree with each other, so be sure to read them both).
The threshold decision by the majority holding that the DACA rescission is subject to judicial review is significant. While the Administrative Procedure Act (APA) has long been understood to embody a presumption of judicial review, it has also long been understood that exercises of enforcement discretion are generally immune from such review. So the Obama Administration argued its immigration policies (DACA and DAPA) were unreviewable (and also reversible at any time) and the Trump Administration argued that its decision to end DACA was likewise unreviewable. A consequence of this holding could be to narrow the range of administrative actions that are outside of judicial review.
On the merits, the majority opinion by Chief Justice Roberts appears to be quite narrow, and focuses on the paucity of the Trump Administration's initial explanation for why it was ending the policy The Chief Justice explains that the Trump Administration's decision must be evaluated based upon the rationale that was provided at the time the decision was made. According to Roberts, this means that the Court should only look at the Duke memo, and not the subsequent memorandum offered by Secretary Nielsen that later expanded and elaborated on the decision to rescind.
According to Roberts, Acting DHS Secretary Duke was bound by the Attorney General's conclusion that DACA was unlawful, but was nonetheless obligated to consider various approaches to DACA's purported illegality and whether ending DACA would disturb settled expectations. This is a dramatic conclusion, and has the potential to constrain a range of future administrative actions. Among other things, it seems to suggest that when the Executive Branch concludes an existing policy is illegal, it can't simply stop the policy, but has to publicly examine a range of alternatives even if the action in question is not an agency action with the force of law (such as a duly promulgated regulation). So even though the Obama Administration created DACA with the stroke of a pen, more than the mere stroke of a pen was required to rescind it.
That said, the Roberts opinion is narrow in that it does not consider the subsequent Nielsen opinion and leaves open the possibility that the Trump Adminsitration could stil rescind DACA, provided it adequately examines the relevant considerations in whatever memo or explanation accompanies the decision. The Court's 8-1 rejection of the Equal Protection claim further clears away this potential obstacle to rescission. As noted above, Justice Sotomayor dissented in part in a separate opinion arguing that the Court "prematurely dispose[d]" of these claims, and that the plaintiffs should have had the opportunity to demonstrate that the DACA rescission was motivated by animus on remand.
Roberts opinion concludes:
We do not decide whether DACA or its rescission are sound policies. "The wisdom" of those decisions "is none of our concern." Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew. . . .
Though I plan to dig into the Roberts decision more thoroughly, I am unconvinced by his analysis on multiple levels. I believe DACA was lawful (given the decades-long practice of immigration law enforcement and implementation that allowed forbearance and the receipt of benefits), but I also believe the Trump Administration had no obligation to provide any explanation at all for its rescission, and that the conclusion that DACA was unlawful was more than sufficient to justify its rescission (and would be so even if courts disagreed as to that determination, as what matters is whether the decision was reasonable, not whether it was correct).
Chief Justice Roberts' decision here appears to be of a piece with what I've characterized as his "anti-disruption" approach to judging. He dislikes decisions that alter precedent, invalidate federal statutes, sweep too broadly or (as here) upset settled expectations or cause administrative disruptions. This is also a sufficient priority for him that his concern for disruption will trump his concern for adhering to statutory text or constitutional principle. In these respects, I see his decision today as fitting in with what we've seen from him in a range of cases, including (but not limited to) Bond, NFIB, and King.
Justice Thomas wrote the principal dissent, joined by Justices Alito and Gorsuch. According to Justice Thomas, DACA was unlawful from the inception, and that provides ample basis for the Trump Administration's to rescind the program. He writes:
DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency's policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency's determination of illegality is sound, our review should be at
Today's decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS' initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court's duty to apply the law according to neutral principles, and the ripple effects of the majority's error will be felt throughout our system of self-government.
Perhaps even more unfortunately, the majority's holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today's decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.
Justice Kavanaugh wrote a separate, more narrow, dissent, focusing on the APA question. He stresses that all nine justices accept that the Executive Branch has the legal authority to rescind DACA, and dissents on the ground that the explanation for the DACA rescission provided by the Nielsen memo was sufficient for this sort of action under traditional standards of judicial review. Justice Kavanaugh's opinion was confined to this claim, and assumed, for the sake of argument, that the decision to rescind DACA is properly subject to judicial review in the first place.
A final note: While I largely agree with Justice Kavanaugh, I think it is fair to note that here (as in so many cases) the Trump Administration adopted a sloppy and incautious approach to policy implementation. As I stress to my administrative law students, government lawyers should be in the habit of dotting every "i" and crossing every "t", and checking such things twice, so as never to give a court that dislikes a policy decision an excuse to invalidate the action on procedural grounds. Though I think the Court today got the legal question wrong, the Trump Administration made it easier for the Court than it should have - and that's something we've seen from this Administration quite a bit.