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-judgement 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.
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.
As for the dissents . . .
Developing . . . . post being updated