The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I have been writing about DACA since I began teaching in 2012. For nearly eight years, I have had to explain a single fact over and over and over again: the deferred action policies were unlawful because they conferred federal benefits; not because they deferred deportations. Early on in the DAPA litigation, Texas conceded that DHS could issue "do not deport" cards. Texas's objection concerned the fact that DACA, and later DAPA, allowed the federal government to grant a host of federal benefits, such as work authorization.
Yet, this simple fact has always been ignored–with good reason. It is far more powerful to raise the specter of deporting Dreamers, then merely taking away their work authorization. Most Dreamers were never a priority for removal. As we are often reminded, the federal government can only deport about 400,000 a year. DACA was always about granting the Dreamers work authorization.
Over the past five years, I have filed several briefs on behalf of the Cato Institute drawing this distinction: DHS had the authority to defer the deportations, but not to grant the benefits. (See pp. 18-21 of our Supreme Court brief). And this argument has consistently fallen on deaf ears.
Now, the most unlikely candidate has breathed life into our position: Chief Justice Roberts. He recognized that the benefits element of DACA was separate from forbearance of removal. And he did not agree with the 2nd, 9th, and D.C. Circuits that the conferral of these benefits was lawful. Instead, he seemed to agree with the 5th Circuit that the conferral of benefits was unlawful. (More on that point later).
But then we get the John Roberts special: because the forbearance of removal provision was permissible, the Secretary acted arbitrarily and capriciously for rescinding the entire DACA policy. In effect, Roberts applied a severability analysis: the unlawful portion of DACA (conferral of benefits) should have been severed from the permissible portion (forbearance). And because the Secretary did not sever the DACA memo appropriately, the entire rescission was unlawful. (If this sort of analysis is applied to the ACA case, Congress's failure to properly repeal the individual mandate would render all of Obamacare unconstitutional–mostly joking.)
The Chief's standard exceeds even the strictest scrutiny I have seen in equal protection cases. Every government gets some degree of latitude, even when dealing with fundamental or enumerated rights. But the failure to adopt the precise legal analysis Chief Justice Roberts adopted, which had been heretofore unknown, renders the policy arbitrary and capricious. We saw a similar mode of analysis last year in the Census case. But here, the A&C standard was upgraded to an electron microscope–a single molecule out of place, and the Chief orders a remand.
I will write a subsequent post that analyzes these points in some detail. But this post should provide a high-level overview of my thoughts.