The Volokh Conspiracy

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Biden v. Nebraska and the DACA Litigation

Is the longstanding deferred action policy a major question?


In a 2015 amicus brief, I contended that President Obama's executive action known as DAPA was not supported by statutory authority. And in a footnote, I made an alternate argument, hinting at what would become known as the major questions doctrine:

[F]inding the wholesale authority in these provisions that the government claim would be akin to discovering the "elephants in mouseholes" that the Supreme
Court has described as indicia of an implausible delegation from Congress. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133–35 (2000).

To this day, the Supreme Court has somehow managed to avoid resolving this issue. In 2016, after Justice Scalia's death, the Court split 4-4 on the validity of DAPA. And in 2020, the Court ruled that the Trump Administration's rescission of DACA failed to adequately consider reliance interests. Last month, Judge Hanen heard oral argument in Texas's challenge to the DACA policy. Yes, this case is still going on.

Last week, I wrote about how U.S. v. Texas affects the standing inquiry in the DACA case. Here, I will discuss the impact of Biden v. Nebraska on the merits of the DACA litigation.

DACA turns on two sources of statutory authority:

6 U.S.C. § 202(5): "The Secretary shall be responsible for . . . Establishing national immigration enforcement policies and priorities."

8 U.S.C § 1103(a): "The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens…"

That's it.

In Nebraska, Chief Justice Roberts's majority opinion found that the HEROES Act did not support the Secretary's loan forgiveness policy. A few elements seem relevant to the DACA litigation.

First, the Chief Justice found that the government's reading of the HEROES Act grants the Secretary the power to "rewrite" the statute.

Under the Government's reading of the HEROES Act, the Secretary would enjoy virtually unlimited power to rewrite the Education Act. This would "effec[t] a 'fundamental revision of the statute, changing it from [one sort of] schemeof . . . regulation' into an entirely different kind," West Virginia, 597 U. S., at ___ (slip op., at 24) (quoting MCI, 512 U. S., at 231)—one in which the Secretary may unilaterally define every aspect of federal student financial aid, provided he determines that recipients have "suffered direct economic hardship as a direct result of a . . . national emergency." 20 U. S. C. §1098ee(2)(D).

So too with the immigration two statutes cited above. If those provisions grant the Secretary the power to implement DACA, he would have the authority to rewrite the laws. (Curiously, Justice Kavanaugh's concurrence in Moore v. Harper focused on the state supreme court's ability to "rewrite" election law, so this standard is in the air.)

Second, the Chief Justice looked to "past practice under the statute."

So too here, where the Secretary of Education claims the authority, on his own, to release 43 million borrowers from their obligations to repay $430 billion in student loans. The Secretary has never previously claimed powers of this magnitude under the HEROES Act. As we have already noted, past waivers and modifications issued under the Act have been extremely modest and narrow in scope. The Act has been used only once before to waive or modify a provision related to debt cancellation: In 2003, the Secretary waived the requirement that borrowers seeking loan forgiveness under the Education Act's public service discharge provisions "perform uninterrupted, otherwise qualifying service for a specified length of time (for example, one year) or for consecutive periods of time, such as 5 consecutive years." 68 Fed. Reg. 69317. That waiver simply eased the requirement that service be uninterrupted to qualify for the public service loan forgiveness program. In sum, "[n]o regulation premised on" the HEROES Act "has even begun to approach the size or scope" of the Secretary's program. Alabama Assn., 594 U. S., at ___ (slip op., at 7).

Way back in 2014, I explained how there was no past practice to support DACA. People disagreed with me then, and now. In any event, the language here is quite helpful to Texas.

Third, the Chief Justice stressed the fact that Congress chose not to enact student loan forgiveness:

The dissent is correct that this is a case about one branch of government arrogating to itself power belonging to another. But it is the Executive seizing the power of the Legislature. The Secretary's assertion of administrative authority has "conveniently enabled [him] to enact a program" that Congress has chosen not to enact itself. West Virginia, 597 U. S., at ___ (slip op., at 27). Congress is not unaware of the challenges facing student borrowers.

Likewise, there have been many attempts to legislate status for the DACA recipients, but those bills have not passed. It is often considered bad form to look at unenacted bills, but the Chief did so here without qualification.

Fourth, Chief Justice Roberts cited statements from the Speaker of the House who contended that President lacks the authority to implement student loan forgiveness:

As then-Speaker of the House Nancy Pelosi explained: "People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress." Press Conference, Office of the Speaker of the House (July 28, 2021).

Many moons ago, President Obama said that he lacked the power to implement relief for the Dreamers through executive action. But then after Congress declined to enact immigration reform, he discovered the power that he previously lacked. The Chief's analysis here suggests he would be sympathetic to this argument.

Fifth, the Chief Justice goes out of his way to discuss executive action policies that grant "benefits."

The Secretary, for his part, acknowledges that West Virginia is the law. Brief for United States 47–48. But he objects that its principles apply only in cases concerning "agency action[s] involv[ing] the power to regulate, not the provision of government benefits." Reply Brief 21. In the Government's view, "there are fewer reasons to be concerned" in cases involving benefits, which do not impose "profound burdens" on individual rights or cause "regulatory effects that might prompt a note of caution in other contexts involving exercises of emergency powers." Tr. of Oral Arg. 61.

The DACA litigation has always turned on the provision of government benefits–specifically, the granting of "lawful presence" and the attendant benefits that flows from the status. Texas has never actually challenged the decision not to deport DACA recipients.

In Nebraska, he government argued that the major question doctrine rule from West Virginia v. EPA should not apply where the government is providing benefits. The Supreme Court rejects that line:

This Court has never drawn the line the Secretary suggests—and for good reason. Among Congress's most important authorities is its control of the purse. U. S. Const., Art. I, §9, cl. 7; see also Office of Personnel Management v. Richmond, 496 U. S. 414, 427 (1990) (the Appropriations Clause is "a most useful and salutary check upon profusion and extravagance" (internal quotation marks omitted)). It would be odd to think that separation of powers concerns evaporate simply because the Government is providing monetary benefits rather than imposing obligations.

This conclusion could be quoted verbatim in a decision concerning DACA.

Sixth, the Court questioned whether the student loan forgiveness policy was in the "wheelhouse" of the Secretary of Education. The Chief Justice disagreed, finding that in fact the proper "wheelhouse" would be Congress.

The dissent insists that "[s]tudent loans are in the Secretary's wheelhouse." Post, at 26 (opinion of KAGAN, J.). But in light of the sweeping and unprecedented impact of the Secretary's loan forgiveness program, it would seem more accurate to describe the program as being in the "wheelhouse" of the House and Senate Committees on Appropriations.

Under the Chief's analysis, the Secretary of DHS would not be acting in his "wheelhouse" by granting extensive benefits to the DACA recipients. That role belongs to Congress.

Justice Barrett's concurrence also considered the "wheelhouse" element. But she seemed to suggest (contra the majority) that the student loan forgiveness policy is in the Secretary of Education's "wheelhouse." For example, she found that the Attorney General was not within his wheelhouse when he regulated controlled substance use in Gonzales v. Oregon, and the Commissioner of Internal Revenue was not within his wheelhouse when he regulated health care tax credits in King v. Burwell. But wouldn't the Secretary of Education be in his wheelhouse to regulate student loans? In dissent, Justice Kagan highlighted this apparent disagreement:

And second, is the agency official operating within or "outside [his] wheelhouse"? . . . And as JUSTICE BARRETT agrees, "this is not a case where the agency is operating entirely outside its usual domain." Ante, at 15. So I could practically rest my case on JUSTICE BARRETT's reasoning.

Justice Barrett may find that the Secretary of DHS is acting in his wheelhouse.

It is risky to apply the language of a Chief Justice Roberts decision to other contexts, as he can always change his mind. But on its face, Nebraska should be helpful for Texas in the DACA case.