In a stunning 5-4 decision, led by Chief Justice C.J. Roberts, the Supreme Court of the U.S. upheld Deferred Action for Childhood Arrivals (DACA) in Department of Homeland Security, et al. v. Regents of the University of California et. al. (No. 18-587, June 18, 2020). The court found the actions of DHS in rescinding DACA to be arbitrary and capricious, in violation of the Administrative Procedures Act; that their actions are reviewable by the court under the APA; and were a violation of equal protection of the Fifth Amendment to the U.S. Constitution. The court focused on two issues, jurisdiction to decide since immigration benefits were created with DACA (employment authorization, Social Security and Medicare) and not just “forebearance,” i.e., depriving by deportation, and “reliance” on DACA by DACA recipients, their employers and U.S. families, and was thus arbitrary and capricious. This last aspect is the most generous aspect of these two issues for the future of DACA. It must now be taken up by DHS in a proper manner, if it may destroy DACA lawfully.
“In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832.”
Justice J. Thomas concurred in part writing, DHS was “required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns…The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination. See ante, at 20. But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA.”
“We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “is none of our concern.” Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”
Given the recent penchant of the executive branch of the federal government, within which DHS sits, toward foreign nationals today, this writer doubts they can craft with reasons stronger than those of DACA recipients’ reliance to justify taking benefits away. The court would likely view those as spurious as they have other actions by this Executive.