Will the Supreme Court resurrect DACA? A 73-year old federal law will decide
By Martin Robles-Avila
The Supreme Court will hear arguments on Nov. 12 about whether the Trump administration acted lawfully when it terminated Deferred Action for Childhood Arrivals, the Obama-era program that has benefited roughly 700,000 Dreamers. Courts have kept DACA on life support and have required the government to continue accepting renewal applications while the case proceeds.
Will the Supreme Court resuscitate DACA or deliver the coup de grace? The outcome hinges on a federal law called the Administrative Procedure Act. Passed in 1946, the APA requires all federal agencies, including the Department of Homeland Security, to follow certain steps when promulgating rules and regulations. Since Congress is the branch of government authorized to make laws, these agencies, which are extensions of the executive branch, are only authorized to pass rules needed to implement those laws.
Because the APA limits how agencies implement rules and policies, it is often used to challenge immigration decisions, such as denials of visa petitions, and is the reason for many of the Trump administration’s losses in court. Several ongoing lawsuits invoke the APA to challenge policies such as the elimination of Temporary Protected Status, restrictions on asylum eligibility, the public charge rule, and the Optional Practical Training (OPT) program.
In what is known as notice-and-comment rulemaking, federal agencies must publish proposed rules in the Federal Register and allow the public to comment before they become final. Courts may invalidate rules deemed “arbitrary and capricious,” as they often do when they deem the agency’s stated reasons insufficient. This is why lower courts blocked DACA from termination. Importantly, no court has said that DACA cannot be rescinded—only that the process must result from reasoned decision-making. Exceptions to the notice-and-comment requirement exist, but courts tend to take a hard look at them.
A twist in the case is that President Obama introduced DACA through executive action without a notice-and-comment period. (Another lawsuit is challenging the legality of DACA.1) DHS will argue that if Obama had the authority to create DACA, Trump has the power to undo it, also without notice-and-comment, or as Trump has tweeted: “how can [Obama] have the right to sign and I don’t have the right to ‘unsigned’ [sic].” They will also argue that DHS’s decision to wind down DACA is not judicially reviewable at all, which is the other issue the Supreme Court has agreed to consider.
DACA advocates will counter that the government must follow the APA’s requirements even when repealing a rule crafted by a prior administration, and that the government never acknowledged “the devastating consequences of the rescission on the hundreds of thousands of DACA participants and the countless other stakeholders who have come to rely on the policy.”2 This “wholesale disregard” of the impact on DACA beneficiaries, “their families, their employers, and their communities renders the decision to rescind DACA arbitrary and capricious decision making.”
Dreamers represent a sympathetic population making substantial economic and educational contributions. Their fate depends on how nine justices, two appointed by Trump, interpret this septuagenarian law, whose full title is an “Act to improve the administration of justice by prescribing fair administrative procedures.” Of course, fairness is in the eye of the beholder—and difficult to adjudicate. A decision is expected by June.
Martin R. Robles-Avila is Senior Counsel in the San Francisco office of Berry Appleman & Leiden LLP.
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1 Texas v. Nielsen, U.S. District Court for the Southern District of Texas, 1:18-CV-00068, in which seven states challenge the legality of the introduction of DACA, remains pending.
2 DHS v. Regents of the University of California et al., No. 18-587, Brief of Regents of the University of California, et al., In Opposition to the Petition for Writ of Certiorari to the United States Supreme Court, https://www.supremecourt.gov/DocketPDF/18/18-587/76442/20181217133718115_18-587%20Regents%20Brief%20in%20Opposition.pdf.