Block on Trump's Asylum Ban Upheld by Supreme Court
The momentous Supreme Court decision preventing the immediate end of the Deferred Action for Childhood Arrivals program (DACA) has generated significant headlines, and for good reason. Yet the Supreme Court's narrow plurality decision did not say that the Trump Administration cannot end DACA. Indeed, the justices' disagreements on how to even approach the case mimic how complex the debate over U.S. policy for unauthorized childhood arrivals to the U.S. has become.
Instead, the Supreme Court issued a narrow ruling that means the battle over DACA will continue. As Chief Justice John Roberts, writing for the plurality, put it:
The dispute before the Court is not whether [the Department of Homeland Security] may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.
Below is a summary of the decision, including discussion of the dissents by Justices Sotomayor, Thomas, and Kavanaugh.
DACA is neither a law nor an executive order. It is instead a unique executive branch program created during the Obama administration. Under this policy, the DHS does not prosecute immigrants who came as children without documentation, provided they meet other eligibility requirements such as not having a criminal record. Immigrants to the U.S. under DACA, known as DREAMers, can get work permits and some federal benefits. There are approximately 650,000 DREAMers in the U.S.
Federal agencies such as the DHS cannot create laws. They can, however, create rules, either as directed by Congress or to “fill in the gaps" left by Congress. DACA is (arguably) one such rule.
Courts typically give deference to federal agencies when they create these rules. However, courts can invalidate the rule if the rationale behind the agency's decision is arbitrary or capricious. Put simply, courts are not supposed to second-guess or do the agency's job for it. Instead, courts simply ensure that the agency has some legitimate rationale for doing what it's doing.
That was what the Supreme Court was debating in it's June 18 decision.
A few years after its initial creation in 2012, the Obama administration attempted to expand the DACA program. However, this expansion was met with successful legal challenges. In 2017, under the Trump administration, the Department of Homeland Security attempted to rescind DACA, citing in part a Fifth Circuit holding that the expansion of DACA was unlawful. The DHS took this to mean DACA was itself unlawful. This perceived unlawfulness was then-acting Secretary Elaine Duke's stated reason why the Trump administration ended the program.
The new DHS enforcement policy was again challenged successfully in lower courts. The Supreme Court consolidated the cases to decide three things:
The justices disagreed over all three questions, ultimately reaching a narrow plurality that will allow the DHS to try again to rescind DACA if it chooses.
Chief Justice John Roberts wrote the opinion for the plurality. In a narrow 5-4 majority, the Supreme Court held that the APA did apply but the DHS did not offer enough rationale for ending DACA.
However, the majority did not allow the Equal Protection claim to proceed. Justice Sotomayor, in a lone concurring opinion, wrote that she would allow this claim to proceed based on President Trump's previous public statements regarding DACA. Had the court chosen to allow the Equal Protection claim to proceed, it could have made it much more difficult for the agency to rescind the program.
In a strident dissent, Justice Thomas wrote that “[t]he 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."
In other words, in Justice Thomas' view, DACA was illegal when it was created in 2012, and because of this, the APA's arbitrary and capricious standard does not apply. The DHS ended an illegal program, and that should be the extent of the court's analysis. Justice Thomas was joined in his dissent by Justices Alito and Gorsuch.
Justice Kavanaugh agreed with the plurality that the APA did apply. However, he wrote that the DHS offered sufficient rationale for its policy. Under Justice Kavanaugh's reasoning, a later memo written by the new Secretary of the DHS Kirsten Nielson regarding her decision not to touch the rescission of DACA was enough to meet the standard under the APA.
Because the opinion ultimately only holds that the DHS did not satisfy procedural requirements, it will be free to again attempt to rescind DACA by revising its stated reasoning. However, the DHS will have to create a new rule in order to do so and justify its rationale, which will take time. Further, that new rule will again likely be the subject of litigation, if the DHS does do so. That means people in the U.S. under DACA will have some time. However, uncertainty remains unless Congress passes a law clarifying the status of DREAMers. Which, as has been the case for the last 10 or more years, it is again threatening to do.