Understanding Chief Justice Roberts's DACA Decision

CJ Roberts rejects the A&C analysis of the 2nd, 9th, and D.C. Circuits, and tentatively embraces the 5th Circuit's analysis about DACA's benefits


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.

NEXT: "Assessing the Government’s Lawsuit Against John Bolton"

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  1. I still wonder how DACA authorizes in-state tuition.

    1. Isn’t that up to each state?

  2. Here’s a question.

    Since the forbearance on being deported was prosecutorial discretion being utilized, if it stood on its own, would it be reviewable?

  3. “In effect”

    Why do I get the feeling these two words are doing overtime on a holiday work?

  4. What the courts are doing is letting the “chicken” game between Congress and Trump continue. Trump has rightly said that Congress should pass legislation dealing with the DACA arrivals, then he will sign the concensus legislation. The House won’t pass legislation because they know they can’t get everything they want and they want to use it as a campaign issue. The Senate won’t pass a bill because it needs 60 votes, and there isn’t any 60 vote concensus in the Senate.

    This decision actually helps Trump because it removes DACA as a high profile campaign issue.

    But I do think the courts are increasing the disfunction in government by allowing presidents to circumvent Congress and the law by executive order, but I’m pretty sure Trump’s executive won’t recieve the same deference after he leaves office.

    1. I agree that it may help Trump. If he leaves it alone. technically this decision is just telling the Trump administration you can end the program just do it correctly. I have a feeling they may begin the process of ending the program which will become a campaign issue. Plus if he likes the program and wants to sign it into law why then push to have it end? It may very well be that he is attempting to use this to limit Asylum, fund his border wall, and limit legal immigration as a whole. No way democrats ever take that poison pill.

  5. I am no admin law scholar, but it sure looks like it was arbitrary and capricious because the only justification originally offered was that DACA was illegal. If only half of DACA was illegal, that doesn’t work. The later justifications were post hoc and were not supposed to be considered.

    That has zero to do with severability or the Obamacare case. It’s just a requirement that you have to offer a justification that actually justifies what you do, and not something else you could have done but didn’t.

    1. If half of it was illegal, and the other half was purely an exercise of discretion, and neither half was adopted with APA procedures,, why wouldn’t the whole thing be subject to being discontinued?

      Trump: “OK, we’re just discontinuing the illegal part, and as for the discretionary part, we’re exercising our discretion differently now.”

    2. If a policy is illegal and violates the law, that’s an excellent justification to end the policy.

      If only “half” the policy is illegal, then the proper course of action is for the courts to either strike down the entire policy, or if its severable, strike down the illegal half.

      If half the policy is illegal, it seems very odd not to allow the administration to strike down the illegal half, because it didn’t justify the part that wasn’t illegal.

      1. One problem is that the Court wasn’t asked to affirm striking down the illegal half. But I agree with your first point. Arbitrary and capricious is a stretch here. Government shouldn’t have to say or do more than point to some (here a large) part of the action that is unlawful, to avoid A&C.

      2. Sure – but you need to show your work as to why it’s illegal.

    3. I agree. Furtheremore, Roberts let stand the work authorizations and the Social Security benefits. If Josh was right he would have struck down these benefits as unconstitutional.

    4. If the Obama adminsitration didn’t have the authority to issue the policy—and as best I can tell, the opinion concludes that such a conclusion would have been reasonable—it’s hard for me to see why they were required to evaluate alternatives to scrapping the policy altogether. I also have a lot of trouble seeing how the half that was not illegal is subject to the APA at all. (That was, in my view, by far the least persuasive part of the opinion.) And if it is, then it seems like the Obama administration’s failure to follow the APA is itself a basis for the Trump adminsitration to conclude that that part was illegal as well.

      1. Or, alternatively, politicians who want to reverse policies should provide a memorandum saying their actual reasons for doing so. So a court can then review them.

        A lot of the problems in these sorts of cases come from agencies not getting their stories straight. Getting them straight is not an onerous requirement.

        1. The agency got their story straight. The agency’s boss said the agency action was unlawful. Some parts of it might have been lawful but so what? Arbitrary and capricious is a high standard.

          Practically speaking what are you asking the agency to do? If an agency action has 100 components, 50 of which are unlawful and 50 of which aren’t, does the agency have to explain away abandonment of all 50 lawful? Why? If they hit 49 out of 50 what happens? Where would you cut off arbitrary and capricious? Here it feels like 50%, which should be enough.

          DHS should be allowed to shit the bed. I don’t even think they shit the bed here. This is not respect for a coordinate branch, in my view, and the APA doesn’t require this much scrutiny.

          1. There were only a few components here. Nothing onerous at all.

            1. Arbitrary and capricious is not about whether the standard unmet by the government was onerous. Courts should not casually substitute their own judgment for the agency. As an example, substantial evidence (the typical factual standard of review for agency actions) is incredibly low.

        2. Accidentally flagged this. Really pissed off at mobile site.

    5. “but it sure looks like it was arbitrary and capricious because the only justification originally offered was that DACA was illegal. If only half of DACA was illegal, that doesn’t work.”

      Why not? DACA was a single policy. How is it wrong to stop enforcement of a policy because it’s only half illegal?

      “That has zero to do with severability”

      It’s more like selective-severability, where whether the DACA is treated in whole or in part depends on what’s needed to get the desired result.

      “It’s just a requirement that you have to offer a justification that actually justifies what you do”

      So why aren’t the parts that Trump did justify terminated?

  6. 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.

    Worth noting is that the dissent had its own “special”: that, because the federal benefits could be removed, so could forbearance. It seems at least as much worth noting – although of course your brief did take the opposite position.

  7. If half the policy is illegal, it seems very odd not to allow the administration to strike down the illegal half, because it didn’t justify the part that wasn’t illegal.

    If’ I’m reading the decision correctly, it didn’t say that either were necessarily illegal (although it suggested that the benefits might be); it was more about the process that the Trump administration went through on both issues being insufficient.

    1. Yea the decision seemed to state that the illegal portion which was the expansion of DACA and the implementation of DAPA which have already been struck in prior decisions.

  8. I think he is reading too much into benefits. In immigration law an individual that has been barred from deportability almost always gets work authorization. Which by extension it should mean that the DACA kids would get work authorizations.

    1. DACA wasn’t passed through immigration law though. It was passed through a version of prosecutorial discretion (we just won’t deport these people for now)

      1. There is a Non-Lpr cancellation of removal. Essentially if you have been here 10 years you can stay and they will give you work authorization. It has been going on for ages. Usually an immigration judge grants it.

    2. Not being deported isn’t being barred from deportability.

      1. yet we have been giving people benefits that have been deferred the oldest example is John Lennon. Reagan popularized the work benefits and Clinton expanded on them by giving them acess to medicaid and social security. In the DAPA case the conservatives were just concerned it wasnt case by case like it had been in the past.

  9. Prof. Blackman you’re being a little harsh. It’s arbitrary and capricious because the agency did not consider the alternatives. The agency had to consider the alternatives since the rule was severable. It’s potentially irrelevant that the agency did not know the rule should have been severed. As long as the rule is in fact severable, the agency has failed to contemplate reasonable alternatives. Just throwing that out there, with the full knowledge that I may not completely understand severability.

  10. It’s all a bit odd. Let’s turn this on its head for a second.

    Let’s say Biden is elected, and on January 1st, Trump puts the “Family separation order” into effect, which mandates family separations for illegal immigrants and returns illegal immigrant families to normal discretion for law enforcement.

    Then Biden comes in on January 4th, and says “Separating families is so illegal. Reverse that, and return non-violent children to the lowest level of priority for ICE”

    But someone sues the Biden order, keeping the Trump order (family separations) in effect for 3 years. Then it finally gets to SCOTUS, and SCOTUS says…”Yeah, family separations are illegal and wrong. But you didn’t put the prioritization change through the APA process, so it’s arbitrary. So the Trump policy stands”.

    1. Or: Trump issues an executive order declaring that illegal immigrants arrested for any federal offense must be held without bail, and that DOJ needs to create a website listing all the arrests. Biden (or Attorney General Schiff) rescinds the order, saying that it violates the Bail Reform Act. After three years of stays, the Supreme Court says the order has to stay, because they didn’t explain why they were also taking down the website.

      1. I think the court meant your reason was bullshit which is why it was Arbitrarely and Capricious. I think if the adminisration attempts again it will be upheld.

  11. “Most Dreamers were never a priority for removal. ”

    If you’re making some claim about Texas, Ok, but that should be made clear.

    Because since 2016, the head of the federal executive has been ranting about it and otherwise making it pretty plain that he considers it a priority. (He started ranting about them well before he became the head, in case there was any confusion.)

    If we’re supposed to assume this is a “Donsion”, that still seems to fly in the face of what actually happened:


    One wonders what Blackman thinks a priority looks like.

    1. Repealing DACA wouldn’t have made them priorities for removal any more than they were priorities for removal before DACA.

      1. Except that unlike before DACA, ICE knows exactly where they live and work.

        1. That just makes them easier to remove. It doesn’t make them priorities. But that is a good reason for not participating in the program in the first place.

          1. That’s the chief justice point you have to do more. You led these people to rely on the program.

  12. Roberts has become the reliable 5 th vote for the left wing of SCOTUS. His colleagues on that half are pleased to have him write the opinion, because he has demonstrated a special skill in contrived reasoning. Roberts hopes that his ploy will save SCOTUS from being packed with two more left-wing justices once Biden wins in November.
    But he is naive if he thinks that even one 5-4 decision he makes against the leftist branch will not bring out strident calls for court-packing.

  13. I agree the opinion makes no sense.

    If DACA was a lawful exercise of discretion, then undoing it was also a lawful exercise of discretion.

    And if undoing a lawfully promulgated DACA required notice and comment, then promulgating it in the first place required notice and comment, and doing it without those procedures was unlawful.

    I think Chief Justice Roberts simply started emeith the result he wanted and worked backwards.

    He could have gotten the same result without damage to the law simply by relisting to the next term in hopes an election would intervene in the meanwhile. I’m surprised he didn’t.

    1. are you sure promulgating required notice and comment? I have only heard the ending of it to require notice and comment.

  14. Always great to see another meeting of Libertarians For Authoritarian, Bigoted, Cruel Immigration Policies And Practices conducted at an “often libertarian” blog.

    1. It is less than interesting to read your oft repeated papp. You’re the king of the clingers.

  15. “… which had been heretofore unknown…”

    What about State Farm 463 U. S. 29? I think that case (like this one) is also wrong, but it’s the same ballpark. Failure to consider an alternative is fatal.

  16. Just as Dred Scott was one more step toward civil war, these decisions will be remembered in a similar vein.

    1. I hope so. I don’t know why more conservatives aren’t giddy about the idea of a civil war.

    2. Dred Scott, right, you’re a completely reasonable person. Great comparison. I thought the Supreme Court got NCAA v Board of Regents wrong and can’t believe the Republic has survived this long. If they issue one more decision I disagree with, we are inching closer to rebellion.

      1. WOW the conservative movement is willing to start a civil war over so little.

    3. idk I mean bush v. gore was a trash decision were 5 conservatives betrayed everything they believed in. Yet that didn’t lead to a civil war. But sure Justice Roberts telling the administration to end the program correctly is gonna be the straw that broke the camels back. I am sure in 300 years my ancestors will be fighting to tear down a statute of you down, because let’s be honest last time your side got its ass beat.

  17. The court determined that DACA is illegal but the process to rescind DACA was improper so the illegal order remains in place. Sane people lose more ground every day.

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