US Supreme Court rules DACA rescission was unlawful [pdf]
supremecourt.gov
supremecourt.gov
I haven't yet read the entire majority opinion, and maybe it will change my mind, but right now I tend to agree with Thomas:
> 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. I respect-fully dissent in part.
Because both implementing it and rescinding it are potentially lawful. SCOTUS hasn't ruled on that.
The Court simply says rescinding it in a particular manner that violates the Administrative Procedures Act is not lawful. It's a technicality; "go back and try again". The administration didn't dot their Is and cross their Ts, so they got a smack on the wrist for it.
The Supreme Court declined to review the lawsuit that challenged DACA as a violation of the APA (probably because the plaintiff didn't have standing). It seems like the States that challenged DAPA will now challenge DACA on the same grounds, so this decision is just the Supreme Court intentionally stalling - the majority opinion is that the rescission is not sufficiently justified, and it seems like whether the implementation was unlawful is pretty important to decide whether the justification was sufficient.
This decision explicitly says otherwise; that they created a specific program with specific requirements that follow the APA's rules.
> Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process,and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively “adjudicat[ions].”
> In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief.The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832. The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Secu-rity and Medicare. See supra, at 3. Unlike an agency’s refusal to take requested enforcement action, access to these types of benefits is an interest “courts often are called upon to protect.” Chaney, 470 U. S., at 832. See also Barnhart v. Thomas, 540 U. S. 20 (2003) (reviewing eligibility determination for Social Security benefits).
The sections you quoted are from the section in which the Court is deciding whether the APA applies to the rescission of DACA. This is the introduction to that section:
> But before determining whether the rescission was arbi-trary and capricious, we must first address the Govern-ment’s contentions that DHS’s decision is unreviewable under the APA and outside this Court’s jurisdiction
and this is the conclusion:
> Because the DACA program is more than a non-enforce-ment policy, its rescission is subject to review under the APA
The argument there is not that the implementation is legit, it's that the APA applies to DACA as implemented.
After deciding that APA applies to DACA, they went on to find that the rescission was in violation. I don't believe that they had any finding on whether the implementation was in violation, because that wasn't the question at hand I guess.
SCOTUS is basically saying, "nope, you can't just declare your predecessor's work illegal and null and void and call it a day, you need to actually provide good reasons for why each part is illegal and should be undone."
https://freebeacon.com/politics/study-obama-worst-record-sup...
> Duke was bound by the Attorney General’s determination that DACA is illegal. [...] The Attorney General concluded that the legal defects in DACA mirrored those that the courts had recognized in DAPA. The Fifth Circuit [...] found that DAPA violated the INA because it extended eligibility for benefits to a class of unauthorized aliens. But the defining feature of DAPA (and DACA) is DHS’s decision to defer removal, and the Fifth Circuit carefully distinguished that forbearance component from the associated benefits eligibility. Eliminating benefits eligibility while continuing forbearance thus remained squarely within Duke’s discretion. Yet, rather than addressing forbearance in her decision, Duke treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm— treating a rationale that applied to only part of a policy as sufficient to rescind the entire policy.
In short, even if you take the Trump administration's rationale at face value, the only portion of DACA which has been determined to be illegal by either a court or the administration was the extension of SS & Medicare benefits to illegal aliens. The "deferred action" part of DACA has never been considered illegal.
This is the level of legal incompetence that the administration uses in almost every arena where they make lots of noise.
It should be no surprise that they fail at very basic levels before any grander legal question can be debated.
As somebody who believes that this court is more motivated by partisan political concerns than legal reasoning, it seems likely to me that Roberts ruled against this not out of true legal principle, but because it would be so wildly unpopular in an election year that he doesn't like the consequences.
There are many realities that seem plausible here.
https://www.govinfo.gov/content/pkg/USCOURTS-txsd-1_18-cv-00...
States challenged DACA as a violation of the APA and the Take Care clause of the Constitution. The judge argued that it probably was illegal, but denied their request for a preliminary injunction because of all the negative consequences. I haven't been able to find a final ruling on this case, not sure if it has been decided or is still pending.
EDIT: yep, still pending. It was apparently waiting for this Supreme Court ruling before moving forward:
https://www.courtlistener.com/reca/gov.uscourts.txsd.150168/...
So the cart's a bit ahead of the cart I suppose - the Trump administration's rescission was unlawful, but the legaity of the original creation is still not decided.
Btw, since you bring up this topic, I'll say that one thing that courts, legislatures simply cannot seem to get right is the use of graphics, charts, and important data figures when they would do wonders to clarify about some issue. The most a SCOTUS opinion ever has is a map. See also the Federal Register. It's like the typewriter still rules our discourse for these things.
But for many more modern issues, where graphics and explanatory visual data would clarify things immensely, our legal/legislative system only seems to be able to handle 12-point double spaced words.
This is sometimes a big hindrance to understanding.
They ruled that the White House didn't follow the existing legislation.
I quoted this below from Justice Clarence Thomas, but it also directly responds to your point;
> 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.
That’s from the dissent. The majority ignored this like it doesn’t matter. Rules for thee but not for me.
> On November 9, 2015, a divided panel of the Fifth Circuit Court of Appeals upheld the district court’s order granting the preliminary injunction. The majority accepted the lower court’s findings that Texas has standing to bring this lawsuit based on the additional costs it would incur to issue driver’s licenses to beneficiaries of expanded DACA and DAPA. The court acknowledged that judicial review is unavailable under the APA where a matter is committed to agency discretion and that the government’s immigration enforcement priorities fall squarely within this category; nonetheless, the majority also found that the plaintiff states were likely to prevail on their claim that the federal government should have pursued notice-and-comment rulemaking because DAPA and expanded DACA determinations are non-discretionary. In addition, the majority held that the new deferred action initiatives are arbitrary and capricious because the federal government did not have authority to promulgate them under the Immigration and Nationality Act.
[1] - https://www.americanimmigrationcouncil.org/research/legal-ch...
"He started it" isn't really a legal doctrine, either.
Did the Court have an opinion on this in this ruling? I thought it didn't, in which case the creation of DACA has never been held to this "arbitrary and capricious" standard.
EDIT: it was filed, not sure if it's still pending or what, see https://news.ycombinator.com/item?id=23565025
The Court said the procedure for revoking that order didn't follow the Administrative Procedure Act. They didn't rule at all on the legality of the order itself, in either direction.
Honestly the court copped out of addressing the issue. The correct ruling would be to uphold the rescinding of DACA and force Congress's hand to act on the issue. Just because the intermediate outcome is not pretty does not mean an action is wrong.
To a point.
The SCOTUS opinion here decides that DACA constituted a new program, and that the APA establishes legal requirements when canceling a program that the Trump administration did not follow.
They didn't decide either way on whether the Trump administration can rescind the program - it's likely they'd decide Trump can. They just decided he didn't follow the rules properly when he did it.
That's why this is such a terrible decision. They went out of their way to find a reason to not address the case itself.
If the precedent this sets is that subsequent President's executive actions will take more than a full term to work through the courts to rescind, you can be damn well sure that Trump will take advantage of that on the way out.
I wouldn't put this on the Court. They're not supposed to rule on questions that aren't before them.
DACA opponents are welcome to file suit against DACA alleging it was illegally created/implemented. That they relied on Trump to just rescind it, and got burned by the administration's incompetence in doing so, is on them, not the Court.
There is literally nothing stopping the DHS from actually following the rules, but in order to do so they're going to have to detail the affects of their proposed rule change on the DACA recipients.
Congress has acted as a deliberative body and discussed wide-ranging immigration reform packages several times over the last two decades. They couldn't come to an agreement specifically because the legislature's makeup correctly reflects the disagreements among their respective constituents.
Not-a-bug / working-as-intended.
https://law.lclark.edu/live/files/9581-lcb111peabodypdf
"I recognize without hesitation that judges do and must legislate, but the legislatures should be hampered by limitations only if they are found in the plain words of the constitution."
-- Chief Justice Oliver Wendell Holmes.
> Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law. On the contrary, this is anything but a standard administrative law case.
> 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 an end.
If they gave everyone say an extra year to get one more renewal in, and allowed even more time for specific cases (people serving a tour of duty in the military, or people who are in college, or people going through medical treatment), would that be sufficient?
The majority opinion suggests it would be sufficient (pages numbered 25-26). After all, a program created by the administrative branch can be ended by the administrative branch.
Additionally I'm not sure if "DHS can terminate or renew deferred action at any time at the agency’s discretion" is as open ended as all Thomas seems to imply. Certainly that discretion itself has to be legal. ex. They couldn't just decide to deport people who don't donate to a political candidate. It has to follow some legal process.
IMO it is a failure of the Legislative branch to deal with this.
Trump said he wanted “the good immigrants” (yes this in an of itself is cringeworthy) that added value to America. DACA does exactly that. The administration is just pandering to the worse part of his constituency.
Trump's justification was "creating or maintaining the program was beyond the legal power of any president."
The SC wants a better justification.
If there was even a basic level of competence from Trump and appointees, we would be living in a far different nation by now.
Rick Perry met with coal execs, and ended up proposing extremely bone-headed rules for require long certain amounts of stored fuel (or something)which he thought would benefit coal. However the whole ordeal was too poorly defined to go forward. Fortunately, as it would have raised electricity prices for the benefit of more COPD deaths in the US.