The DACA (Deferred Action for Childhood Arrivals) program was announced by issuance of a memorandum by the Department of Homeland Security in 2012. It allowed for certain undocumented immigrants who were brought into the U.S. by their parents to apply for deferred action enabling them to stay in the U.S. for two years at a time without fear of deportation. In addition, they could receive work authorization and complete their higher education courses of study. They also became eligible for certain other benefits, such as social security and Medicare.
About 700,000 eligible immigrants took advantage of this program.
In 2014 DHS expanded DACA and created a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents. or DAPA. If implemented, that program would have made 4.3 million parents of U.S. citizens and lawful permanent residents eligible for the same forbearance, work authorities and benefits as DACA recipients enjoyed.
Texas and 25 other states sued to enjoin implementation of DAPA and the expanded DACA program. The federal district court issued a nationwide injunction preventing implementation of DAPA and expanded DACA. Fifth Circuit Court of Appeals upheld the injunction, finding that the program violated the Immigration and Nationality Act (INA). The U.S. Supreme Court affirmed in a 4-4 decision and the litigation commenced in federal district court.
In the meantime, a new presidential administration was elected. In June 2017 the Department of Homeland Security (DHS) rescinded the DACA Memorandum. Acting DHS Secretary Elaine C. Duke explained that now new DACA applications would be accepted but that existing DACA recipients whose benefits were set to expire within six months could apply for a new two year renewal period.
Several groups of plaintiffs appealed Duke’s decision to repeal DACA, alleging that it was “arbitrary and capricious” under the Administrative Procedures Act (APA). They also alleged that Duke’s decision violated the equal protection guarantee of the Fifth Amendment’s Due Process Clause. There were three federal court cases. Each of the three courts rejected the Defendants’ arguments that Duke’s decision was not reviewable under APA. Two of the courts found that the plaintiffs had stated a claim for equal protection under the Fifth Amendment and issued coextensive nationwide injunctions, finding that Plaintiffs were likely to succeed on their claims. One of the federal courts held that Duke’s rescission of DACA was arbitrary and capricious but gave the DHS 90 days to come up with a better explanation. Duke’s successor, DHS Secretary Kirstjen M. Nielsen, wrote a more detailed memorandum explaining the decision and setting forth additional reasons for the DACA rescission.
The cases ended up before the United States Supreme Court. The Supreme Court first addressed the issue of whether or not DHS’ DACA rescission was subject to judicial review under DACA. The APA provides for limited exceptions to the general principle that administrative action is subject to judicial review. The exception relied upon in the Government’s argument was an agency’s decision not to institute an enforcement action.
But this exception did not really apply to DACA, because DACA is much more than immigration forbearance. It also conferred affirmative benefits on recipients, such as work authorization and social security and Medicare eligibility.
The Supreme Court held that acting Secretary Duke’s explanation for the DACA decision was inadequate, thus failing to pass the “arbitrary and capricious” standard. Her bare bones explanation that the program had been determined to be illegal in the first instance. Duke had also failed to address the legitimacy of DACA recipients’ reliance interests, among other things.
The Court also found that Secretary Nielsen’s subsequent detailed explanation was an improper post hoc rationalization of Duke’s original faulty explanation.
The Court remanded the cases to the federal courts for the litigation to continue.
Justice Thomas penned a dissent in which he opined that because DACA was an improper exercise of executive authority in the first instance, it was void an initial and required no detailed explanation to rescind it.
Justice Kavanaugh wrote a dissent in which he lauded the majority’s careful analysis of the APA but stated his opinion that Secretary Nielsen’s subsequent detailed explanation of the DACA rescission was sufficient and it would be wasteful to go through further proceedings when ultimately the government would still have the opportunity to issue a more carefully explained DACA rescission. He opined that the prohibition against post hoc rationalizations applied to agency attorneys making after the fact justifications for an agency’s decision during litigation. But he stated his belief that the agency itself can provide post hoc detailed explanations for their earlier decisions.
