Dept. of Homeland Security vs. UC Regents
A five member majority of the Supreme Court this morning issued a very narrow, entirely temporary, reprieve for people protected under the DACA program: it said that the currently litigated attempt by the Trump administration to revoke DACA violated the rules governing the process for changes to government agency actions, in that *in the government’s own description of its process* it failed to consider important issues when making its decision, and it sent the question back to the Department of Homeland Security for consideration of those issues.
This is not, contrary to some press reporting, a confirmation of the legality of DACA. It is not even a permanent voiding of the currently litigated attempt to revoke DACA. It is kicking the can down the road by asking DHS to answer a few questions and write up an order explaining its answers.
In some ways, it’s a smackdown of the Trump administration’s utter inability follow basic procedural rules governing government agencies — — the administration could have avoided this outcome if it had followed proper procedure on at least two different occasions, but it either didn’t know what the proper procedure was *or* decided to ignore the rules.
But it’s not really in any way an actual protection for recipients of DACA. The procedural bar to revoking DACA remains low, and any competent administration who wants to revoke it should be able to clear the bar with no problem.
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Government agencies are required, by law, to follow a set of procedures set out in the Administrative Procedures Act, a law passed by Congress in 1946 which serves as the basic mechanism for regulating agency actions. The APA requires agencies to engage in “reasoned decisionmaking” and authorizes courts to void agency actions if those actions are “arbitrary or capricious”.
The majority opinion says that the revocation of DACA promulgated on September 2017 was arbitrary and capricious.
It was arbitrary and capricious, they say, for two reasons.
To understand those reasons, a bit of background is needed.
When Acting Secretary Duke revoked DACA, she said that she was doing it because the Fifth Circuit had concluded that DAPA (the related program for parents of children protected under DACA) was unlawful because it conferred benefits (namely, access to medicare and social security) in violation of the Immigration and Naturalization Act, and the AG had concluded that DACA was unlawful for the same reason.
The revocation of DACA *in its entirety* was arbitrary and capricious for two reasons:
[1] the Fifth Circuit and the AG said the *benefits* were unlawful. But they didn’t say anything about the *suspension of removal*. The Acting Secretary was *not required by the court or the AG to end the suspension of removal*. That was a discretionary decision. But nowhere, in any way, does she explain the reason for exercising her discretion in that way, what factors she considered in choosing that exercise of her discretion, or show any attempt at considering (and then rejecting) a suspension-of-removal-only policy. She certainly wasn’t required to adopt a suspension-of-removal-only policy, but she was required to *consider it*, and explain her reasons for rejecting it.
[2] people protected under DACA relied on it, made decisions in their lives in the expectation that it would proceed along certain lines, and in many cases had a large financial interest tied up in its operation. The Acting Secretary, in her announcement of the policy change, did not consider these reliance interests. Again, she was allowed to end DACA even in the presence of such interests, but she had to at least consider them, consider the effect that ending DACA would have on them, and have a reasonable basis for infringing on such interests. She did *none* of that, and in fact argued that she wasn’t required to do so.
These two failures-to-consider-something render the revocation arbitrary and capricious. The *exact same policy* would have been fine if she had explicitly considered these questions. But she couldn’t be bothered to consider them, and so the current policy is invalid. DHS is free to try again, considering these questions.
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Justice Kavanaugh, in dissent, thinks this is ridiculous. Nine months after the policy was promulgated by Acting Secretary Duke, the District Court sent the policy back to DHS pointing out *these very flaws*. Newly appointed Secretary Nielsen responded by saying “we thogught that suspension of removal was legally questionable and we wanted to avoid legal fights going forward, and that’s why we revoked suspension of removal.” That should end the matter — — that shows thinking and analysis about a suspension-only policy, and makes it a reasonable excercise of discretion.
But, the majority responds, there’s no evidence whatsoever that this is actually what the decision makers thought *in 2017 when the policy was promulgated*. It’s a different actor, nine months later, saying something that there’s no evidence of being considered nine months previously; it really looks like a post hoc rationalization rather than an actual reason, and we cannot allow the government to justify past behavior via post hoc rationalizations. What Secretary Nielsen should have done is withdraw the nine month old revocation policy and issued a new one, setting out the reasons she was considering at the time of the new action. If she’d done that, we wouldn’t be here.
That’s ridiculous, Kavanaugh maintains. First off, while the *government’s lawyers* aren’t allowed to use post hoc rationalizations, *the government itself is*. [The majority opinion spends half a page ridiculing this assertion, as well it should]. Second off … this whole thing is a convoluted and silly procedural dance. The only practical difference between accepting Secretary Nielsen’s posthoc rationalization and making her withdraw the existing order and issue a new one is that accepting the posthoc rationalization saves lots of court time and government expenditure on lawyers. Why do we need to tie the government up in these absurd procedural knots?
Because, the majority argues, an agency must defend its actions *based on the reasons it gave when it acted*. [They might say, but do not, that anything else opens the door to a disaster: government agencies constantly shifting their alleged reasons for policies, making it impossible for courts to hold government agencies accountable under the administrative procedures act at all.] [They might also say, but do not explicitly say it: we have to tie the government up in these absurd procedural knot because Congress said so and Congress gets to make that decision.]
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Justice Thomas, joined by Justices Alito and Gorsuch, have a different objection: DACA is *clearly illegal* under the immigration and naturalization act, and since it’s clearly illegal under the immigration and naturalization act, there is no process necessary in ending it. It was illegal from the get-go, and so it’s perfectly appropriate for the government to just end it.
The majority responds that it would be one thing if the Attorney General had said “every major aspect of this program is illegal”, but it didn’t; it said “this part of the program is illegal”. Maybe the other parts of the program are illegal, but neither the AG nor the Acting Secretary said that. They abolished an entire program based on the argument that part of it was illegal.
Justice Thomas also objects that the process by which DACA was adopted *itself* violated the APA, because it didn’t follow the APA’s notice and comment procedures. Because DACA was procedurally deficient, enforcing procedural rules on its revocation would set up a horrible problem: outgoing administrations could willy-nilly adopt procedurally deficient rules that would then be locked in until incoming administrations went through the process to revoke them, which clearly isn’t what Congress intended.
The majority doesn’t address that argument from what I can tell.
That said, I think it has any easy answer: nobody is saying that revoking DACA required the notice-and-comment process which wasn’t used in DACA’s adoption. All that was required here was a clear statement that in the opinion of the Acting Secretary, because the adoption of DACA violated the APA, it was being withdrawn. The Acting Secretary *didn’t do that*.
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This is an incredibly narrow decision that has minimal actual effect on people protected by DACA; it protects them for a little bit longer. We should push Congress to fix the situation.
At the same time, this is an incredibly important decision for administrative law: it reiterates a clear minimum standard for agency action. The government *cannot* simply announce policy changes without showing that they’ve done the work to think the situation through.
That said, as a citizen, I find it incredibly disturbing that four Supreme Court Justices don’t think the government should be held to even the minimum standard set forth in this decision.