DEPARTMENT OF HOMELAND SECURITY ET AL. v. REGENTS OF THE UNIVERSITY OF CALIFORNIA ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, No. 18–587. Argued November 12, 2019—Decided June 18, 2020* Together with No. 18–588, Trump, President of the United States, et al. v. National Association for the Advancement of Colored People et al., on certiorari before judgment to the United States Court of Appeals for the District of Columbia Circuit, and No. 18–589, Wolf, Acting Secretary of Homeland Security, et al. v. Batalla Vidal et al., on certiorari before judgment to the United States Court of Appeals for the Second Circuit.
Chief Justice Roberts delivered the opinion of the court except for Part IV. It was never clear to me what he thought about Part IV! Put into normal person’s language, the first question the court answered was whether the case was reviewable at all. The government argued that it was just an enforcement decision by an agency and the court does not have the right to review that. The court decided no that it was not just an enforcement decision (deport or don’t deport) because it also included the benefits of DACA (work permit, eligibility for benefits) and the reliance that so many people have put on it i.e. school, jobs, businesses, marriage, children etc. It is the court’s job to protect the interest of those people.
The second question was whether the Department of Homeland Security’s decision to end the program was arbitrary and capricious. When an agency makes a decision, it has to be based on “reasoned decision-making” and give some facts as to why it is being done and why it is a correct decision. That determination has to be made at the time the decision is made, not months later after three court decisions ruled it unconstitutional. The argument given by Nielson nine months later was very different from the reasons given at the time and so did not count.
The court said that there are two issues to be discussed: enforcement i.e. the agency could once again start deporting people (forbearance rather than deporting) and benefits i.e. those with DACA status can get a work permit and receive government benefits such as social security and Medicare. The agency only dealt with forbearance i.e. not deporting but did not consider the reliance by the DACA recipients on the benefits and how to deal with that reliance and interest by the beneficiaries.
Part IV said that those defending DACA did not prove racial animus in violation of the equal protection clause of the Fifth Amendment. Justice Sotomeyer disagreed and said in her concurring opinion that the DACA recipients should have been given the opportunity to make their case for discrimination since the case was remanded.
All parties and the court agreed that DHS can rescind DACA. The issue is the procedure for doing that. This particular procedure was inadequate i.e. arbitrary and capricious. Kavanagh in his dissent says that requiring an agency to do over is a needless formality but Roberts responded by saying that procedural requirements often feel like that but if you want accountability, then government agencies must follow certain procedures.
The dissent also argues that DACA was illegal in the first place and the attorney general said so and that should be the end of the question. The majority did not respond to that argument saying it had not been properly briefed. But they did say that even if the original DACA was illegal, the agency still has to deal with the aftermath of closing it down and they did not. People put serious reliance on this program and it cannot be yanked out from them without proper consideration.
An agency must defend its actions based on the reasons it gave when it acted. Since the agency never dealt with the “benefits” issue i.e. what would happen to those in DACA now, it was arbitrary.
The government argued that the program itself says it doesn’t create any substantive benefits but the court said that goes to the strength of the argument not the existence – and they never dealt with it. The court outlined information from the amicus briefs what the impact would be of ending the DACA program precipitously. They outlined the marriages and education and businesses started and the number of workers and even the cost to employers who have trained them, the drop in GDP, the drop in tax revenue, and certainly not least that 29,000 of DACA recipients are medical workers on the COVID front line and it would be devastating to force them all to leave. The court said in spite of all this, the agency could end DACA but they would have to talk about how to deal with these issues and they did not.
In his dissent, Justice Thomas with whom Alito and Gorsuch joined, argued that Obama created DACA by executive order and it was illegal. Therefore Trump can eliminate it by executive order and there need be no more questions to address. Thomas says it’s just political controversy and should not be decided by the court at all – only political questions he wants to answer his way should be dealt with by the court. He did agree it should be remanded.
In his separate dissent, Justice Alito basically repeated the same thing and agreed with the Kavanaugh dissent. Kavanaugh agreed to remand but argued some silliness that though lawyers cannot come up with ad hoc arguments, agencies can. Roberts shot that down as creating a moving target that would result in forever litigation. Kavanaugh also argued that Nielsen’s memo was sufficient reasoning i.e. not arbitrary and capricious.