Seyfarth Synopsis: The Supreme Court allows DACA to proceed on the grounds that DHS did not meet the regulatory Administrative Procedures Act requirements in rescinding the program. The Court did not rule on the legality of the DACA program itself.

In the Supreme Court’s June 18th decision on Department of Homeland Security v. Regents of the University of California,  the Court rejected an attempt to dismantle the Deferred Action for Childhood Arrivals (DACA) program on the grounds that the Administration failed to abide by regulatory procedures.

As we reported in our September 6, 2017 post, the Trump administration quickly moved forward with plans to wind down the DACA program following challenges to its legality by the attorneys general of several states. The program originally went into effect in 2012, when the Department of Homeland Security (DHS) announced the immigration program to protect qualified young immigrants from deportation, or “Dreamers”.  DACA allows certain individuals who entered the United States as minors to apply for a renewable two year forbearance of removal from the U.S. and obtain work authorization.  It did not provide a path to legalization; for that legislative action would be necessary.

The saga of the DACA rescission has been a long one that started with a simple memorandum. The Regents case reached the Supreme Court not on the question of DACA’s legality, but instead on the question of the legality of the method the Administration used to rescind the program first implemented in June 2012.  The rescission was announced and made effective immediately through a DHS memorandum issued on September 5, 2017  by the DHS Acting Secretary Elaine C. Duke.  Litigation quickly followed the announcement with claims filed in three different district courts, each of which rejected the Administration’s actions.  These cases led to a 2018 federal district court order requiring USCIS to accept and process renewals of DACA applications pending the outcome of the cases, discussed in our January 18, 2018 post. The Administration subsequently appealed to higher courts and ultimately the case landed before the Supreme Court with Regents and the decision issued on June 18th.

The dispute in the case is not whether DHS can rescind DACA, but whether DHS followed the proper administrative procedure in doing so. In particular, the issues the Court addressed in its decision included:

  1. whether DACA claims were reviewable under the Administrative Procedure Act (APA);
  2. whether DACA’s rescission was “arbitrary” and “capricious” in violation of the APA; and
  3. whether an equal protection claim was stated.

The Court confirmed through its majority opinion that rescission of the DACA program is subject to judicial review under the APA. The Court also held that DHS’ decision to rescind DACA was “arbitrary” and “capricious” under the APA because DHS must defend its actions based on the reasons it gave when it acted. Writing for the Court, Chief Justice Roberts stated “”[w]e do not decide whether DACA or its rescission are sound policies…We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”  In other words, Regents does not acknowledge the legality of DACA, but rather allows the program to proceed based on regulatory grounds. Moreover, the majority’s decision does not foreclose the Administration from again attempting to either rescind or modify DACA were it to avoid the process failures cited by the Court.

While the saga is bound to continue for DACA until Congress acts with legislative changes, key to the Court’s ultimate decision and Chief Justice Roberts majority opinion is the standard clearly upheld and reinforced whereby federal agencies are required to abide by the APA.  The message is clear, and DHS is on notice that it is required to engage in “reasoned decision-making” and agency decisions can be set aside if its actions are “arbitrary” or “capricious”. [1]

As we await presidential proclamations, executive orders and agency regulations that are expected to change how a number of employment based visa programs (including the H-1B visa program) are administered, this latest Supreme Court case and Chief Justice Roberts majority decision timely reaffirms the critical and inherent nature of our legal system which requires adherence to  a deliberative process governed by the rule of law.

[1] 5 U.S.C.  § 706(2)(A); Michigan v. EPA, 576 US 743, 750.