How rule of law saved DACA, for now

The COVID-19 pandemic has left millions of Americans suddenly grappling with uncertainty. Uncertainty was nothing new for Maria Valencia.

She arrived in the U.S. at age 6, when her mom brought her to be with family. After losing her job at Best Buy this spring due to the pandemic, and not being able to volunteer as a nurse – the college student’s chosen career – any good news is welcome.

The U.S. Supreme Court, with its second major ruling in a matter of days, gave her more than that yesterday when it voted to block the termination of the Deferred Action for Childhood Arrivals program (DACA), a program that has allowed her to work and study in America despite being unauthorized, because she was brought here at a very young age.

“It’s definitely a relief,” she says. “If it was canceled I don’t know if I’d want to continue [college], because would I be able to get job?”

The 5-4 ruling also represents the second surprising decision this week from the majority conservative court – although, like the landmark LGBTQ rights ruling earlier this week, on closer examination it may not be that surprising.

The decision yesterday didn’t touch the long-debated question of DACA’s legality, but it did strike a blow against the Trump administration, holding that the U.S. Department of Homeland Security (DHS) had not followed the proper procedures when it decided to wind down the Obama-era program in 2017.

The narrow ruling only prolongs the uncertainty for the roughly 650,000 DACA recipients living in the country, critics say. The program could still be declared unlawful sometime in the future, and while members of Congress came out after the decision and called for a legislative solution, the legislators have said that before and not followed through.

For now, it stands as an unusually significant, narrow ruling about administrative law. But that itself is of great import for the Supreme Court and America in the Trump era.

“It’s saying [the government] didn’t follow the proper procedures to do so. It’s a [win] for rule of law,” says Jonathan Masur, a professor at the University of Chicago Law School.

“The court is grappling with the Trump administration’s efforts to skirt the law and not follow the standard rules of law,” he adds, “and the court is pushing back on that. Particularly [Chief Justice John] Roberts is pushing back on that.”

No “cutting corners”

In seeking to terminate DACA, the Trump administration made two critical errors, said Chief Justice Roberts, who wrote the majority opinion, joined by the court’s four liberal justices.

The first error came when then-Secretary of Homeland Security Kirstjen Nielsen chose to affirm and further explain the initial reasoning the DHS had given for rescinding DACA – reasoning that a federal district court had ruled inadequate.

Because she didn’t choose to issue new reasons for rescinding DACA, Chief Justice Roberts wrote in yesterday’s ruling, “she was limited to the agency’s original reasons,” and her further explanations “can be viewed only as impermissible post hoc rationalizations and thus are not properly before us.”

It’s a small, technical issue – “an idle and useless formality,” argued the Trump administration and, in a dissent, Justice Brett Kavanaugh.

Disregarding Ms. Nielsen’s memorandum sets a precedent in which it will be almost impossible for agencies to further explain decisions to courts, Justice Kavanaugh argued. “It would make little sense for a court to exclude official explanations by agency personnel … and then to turn around and remand for further explanation by those same agency personnel.”

But restricting these post hoc rationalizations serve important values, Chief Justice Roberts wrote. They ensure orderly review of agency decisions, promote agency accountability, and instill confidence that agency reasonings are genuine and not just language to win a lawsuit.

“Each of these values would be markedly undermined were we to allow DHS to rely on reasons offered” by Secretary Nielsen, the chief justice wrote.

“This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision,” he added.

Particularly “when so much is at stake,” he continued, quoting a 1961 dissent from Justice Hugo Black, “the Government should turn square corners in dealing with the people.”

The narrow path

This ties into what the chief justice saw as the government’s second error. DHS is within its discretion to rescind DACA, but in doing so it has to consider, among other things, reliance interests – the degree to which people have come to rely on a law.

Ms. Valencia has spent most of her life in Houston, and her decisions to stay there to work, go to college, and pursue a career are the kinds of reliance interests, the kind of stakes, that the court’s majority opinion is discussing.

“DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests,” Chief Justice Roberts wrote.

“Making that difficult decision was the agency’s job, but the agency failed to do it,” he added. “That failure was arbitrary and capricious.”

The Trump administration’s efforts to wind down DACA thus violated the Administrative Procedure Act.

“The victory is huge for those with DACA, those who might request it for a first time in the future, and their families,” says Shoba Sivaprasad Wadhia, a professor at Penn State Law. “There’s a validation just to the integrity of the court, and the illegality of how DACA ended that is restorative I think to people, to the rule of law.”

It’s a narrow and technical ruling, the kind of ruling that the Supreme Court is supposed to favor over more sweeping decisions. And it echoes another contentious 5-4 ruling from the high court where Chief Justice Roberts voted in favor of the administration.

His opinion upholding President Donald Trump’s travel ban in 2018 avoided bigger questions about the order’s constitutionality, focusing instead on a clause in federal immigration law that, he wrote, “exudes deference to the President.”

The two cases are “really different legal questions. [But in both] he chose to not accept an animus challenge, or a constitutional one, and instead look at reason,” says Professor Wadhia.

His opinion yesterday “was less surprising as a positive outcome [for DACA] that was also narrow, [with] a reliance on administrative law as opposed to trying to answer some of these bigger questions,” she adds.

Unlawful? Unconstitutional?

While Chief Justice Roberts largely ignored those questions, some of his colleagues were happy to call him out on them. And they may preview where the issue goes from here.

“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” wrote Justice Clarence Thomas in a dissent joined by Justices Samuel Alito and Neil Gorsuch.

Accusing the majority of “timidity,” he added that the opinion “has given the green light for future political battles to be fought in this Court rather than where they rightfully belong – the political branches.” The court shouldn’t have reviewed the DHS decision to rescind DACA at all, he believes, because DACA was unlawful from the start. Going forward, he continued, all agencies “will be compelled to treat an invalid legislative rule as though it were legitimate.”

His dissent echoes many of the arguments made by then-Attorney General Jeff Sessions, who had first advised DHS to rescind DACA. For some legal scholars, however, those arguments ignore decades of history in which deferred action has, lawfully, been taken.

“There was no real analysis or understanding for the role of discretion in immigration,” in the dissent, says Professor Wadhia.

“No one else is talking about whether DACA is lawful. No court has found it to be unconstitutional. It was not the question that was before this court, and that was the air time we got from Justice Thomas,” she adds.

At the other end of the ideological spectrum, Justice Sonia Sotomayor – who joined almost all of the majority opinion – scolded the majority for dismissing the claim that the DHS acted with racial animus.

The majority countered that allowing such a challenge would mean “virtually any generally applicable immigration policy could be challenged on equal protection grounds.”

That approach echoes the approach the Supreme Court, and Chief Justice Roberts in particular, has taken in cases like the travel ban and the decision to block the Trump administration from adding a citizenship question to the 2020 Census.

Generally, the court “has decided to largely ignore the extracurricular things Mr. Trump says, and focus on the language of the policies themselves,” says Professor Masur.

“I was surprised by Chief Justice Roberts’ vote,” he adds. But at the same time, “Roberts seems to care about rule of law and procedural regularity.”