U.S. Supreme Court Finds the Department of Homeland Security Improperly Terminated DACA Program

In 2012, the Department of Homeland Security (DHS) established the Deferred Action for Childhood Arrivals (DACA) program. The DACA program is for noncitizens brought to the United States as children. It protects recipients from removal, or deportation, from the United States for two-year periods. It also permits them to apply for work authorization. Since its establishment, 700,000 noncitizens have applied for and received protection under DACA.

In September 2017, DHS terminated the program. DHS permitted those with DACA benefits expiring within six months to apply for one more two-year period. However, DHS precluded all others previously granted DACA relief from applying for renewals at the end of their two-year period.

DACA holders brought challenges to this decision in federal courts in California, New York and the District of Columbia. They claimed the program’s termination was “arbitrary and capricious” in violation of the Administrative Procedure Act (APA). The APA governs the process by which federal agencies, including DHS, develop and issue regulations.

The courts in California and in New York issued nationwide injunctions preventing the termination of DACA. In the D.C., the court ruled in favor of the DACA holders, finding DHS had not adequately explained its decision. However, the court stayed its order for 90 days to permit DHS to provide a fuller explanation of its conclusion DACA was unlawful. DHS, however, chose to stand by its prior explanation. DHS also provided new justifications for its rescission of DACA and asked the D.C. court to reconsider its order. The D.C. court, however, concluded that the new justifications also failed to adequately explain DHS’s claim that DACA is illegal. DHS appealed all of these court orders to the Second, Ninth, and D.C. Circuit Courts. DHS then appealed to the U.S. Supreme Court before decisions were issued. The U.S. Supreme Court agreed to hear the case after the Ninth Circuit affirmed.

In a highly anticipated decision, the U.S. Supreme Court held, 5 – 4, that DHS’ decision to rescind DACA was “arbitrary and capricious” under the APA.

First, the Court noted a court’s review of agency action is limited to the grounds that the agency provided when it took the action in question. Where a court believes the grounds stated are insufficient, it can order the agency to offer a fuller explanation of its reasoning at the time it took the action. Or it can order the agency to take new action. In this case, DHS chose not to take new action. Therefore DHS was only permitted to elaborate on its original reasons, not assert new justifications. The Court acknowledged the importance of the APA in promoting agency accountability. Permitting DHS to rely on reasons it asserted nine months after its decision to terminate DACA, and after three different courts identified flaws in its original explanation, would undermine this purpose.

Second, the Court noted DHS improperly used a rationale that applied to only part of a policy as sufficient to rescind the entire policy. The Attorney General, without any justification, simply declared DACA to be illegal and unconstitutional. DHS relied on the Attorney General’s opinion. DHS also relied on a Fifth Circuit case finding the extension of benefit eligibility violated the Immigration and Nationality Act (INA). The Fifth Circuit, however, distinguished that portion of DACA from the decision to defer deportation. DHS also failed to consider, as it was required to do, the fact that thousands have relied on the program since 2012. DHS was not required to keep DACA in place solely because of that reliance. But it was required to consider that and to weigh those interests against competing policy concerns.

Finally, the Court noted that DHS may rescind DACA and it made no decision on whether its rescission is “sound policy.” Therefore, nothing in the Court’s ruling precludes DHS from issuing a new order rescinding DACA, assuming it follows the guidelines set forth by the Court. In response to the decision, DHS maintains its termination of DACA was proper.  Also, President Trump has indicated he will renew his efforts to terminate the program. Any permanent solution would require Congress to pass legislation.