What the Supreme Court’s Ruling on DACA Means for Its Future

I heard on a television show once (I forget which one) that an attorney’s job is to distort the law beyond all recognition. While I found it funny at the time, and didn’t think too much about it, that is the quote that has stuck in my head when it comes to this recent Supreme Court decision. The following blog post is not an in- depth discussion of immigration law, or even really an attorney’s take on how to use the decision to your advantage. Rather, this post is more on the lines of a brief that one would have written in law school.

My Thoughts

After reading the decision, the conclusion to my question above is fairly evident and can be answered with the standard “it depends.” But to explain that answer, the background and the law discussed by the justices needs to be mentioned as well. Deferred Action for Childhood Arrivals (DACA) has been under attack since its inception. In 2012, former President Obama entered an executive order providing a relief program for immigrants who came to the United States as children; known as the Deferred Action for Childhood Arrivals or DACA. Under that program, these immigrants are able to apply for a two-year forbearance of removal, and are also eligible for work authorization and other governmental benefits. The goal was to provide immigration relief and, by virtue of the program, over 700,000 immigrants became beneficiaries. Several groups opposed DACA, claiming President Obama did not have the authority to issue such an order. Indeed, even the former President himself admitted at one point that he “probably” did not have the authority to implement DACA as he viewed it as new law, which can only be passed by Congress. Nonetheless, it was allowed to survive. In September 2017, under the direction of then Attorney General Jeff Sessions, DACA began a “wind-down process” and no new applications were being accepted. Those existing recipients whose benefits were expiring within six months, however, could apply for a two-year renewal. All others would expire on their previous terms.

US Supreme Courts Decision

This time, the attacks came from the groups who supported DACA and multiple lawsuits were filed to prevent the rescission. On June 18, 2020, the US Supreme Court posted their decision, noting that the “dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.” The Court ruled that the Administrative Procedures Act (APA) “requires agencies to engage in reasoned decision-making…and directs that agency actions be ‘set aside’ if they are ‘arbitrary’ or ‘capricious’” (quoting Michigan v. EPA, 576 US 743, 750 (2105); 5 USC §706(2)(A)). The Court goes on to point out it cannot substitute its own judgment for that of the Department of Homeland Security (DHS), but rather its decision must be “based on a consideration of the relevant factors and whether there has been a clear error of judgment.” It was under this premise that the Court based its decision. In a 5-4 decision, the Court determined DACA is not a “non-enforcement” policy, ie. not prosecuting and deporting undocumented immigrants, but rather a directive to act by providing employment authorization and government benefits. By viewing it in that manner, DACA’s rescission is subject to review by the Court and, after that review, the Court was not satisfied with the reasons provided by DHS for the rescission. Rather, it agreed with the respondents’ argument that the rescission “failed to consider…important aspect[s] of the problem…” Quoting Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 US 29, 43 (1983). While DHS determined DACA was illegal, since it created a new class of immigrants that it was not authorized to create and it provided benefits to immigrants who are not lawfully in the United States under the Immigration and Naturalization Act (INA), the Court determined this conclusion only supported disallowing benefits, not a forbearance decision on deportation or other immigration proceedings. Interestingly, the Court did “not decide whether DACA or its rescission are sound policies.” It only addressed whether DHS complied with procedural requirements providing a “reasoned explanation for its action.” That statement alone provides an avenue for new and continuous debate and litigation over this program. In his dissent to the ruling, Justice Thomas viewed the decision from the viewpoint that the majority ignored. He pointed out that President Obama unilaterally created DACA in a memorandum, with no statutory or other delegation of authority from Congress, after no less than two-dozen failed bills in Congress to grant lawful status to the DACA recipients. As a result, the program was unlawful from the moment it was created. The DHS under President Trump rescinded the DACA memorandum in the same manner that President Obama created it, and under the language of the Obama memorandum, which stated it “may be terminated at any time at the agency’s discretion.” He also noted that under the majority’s ruling, “DHS was [supposedly] required to provide additional policy justifications in order to rescind an action that it had no authority to take. This rule ‘has no basis in our jurisprudence, and support for [it] is conspicuously absent from the Court’s opinion.’” Quoting Massachusetts v. EPA, 549 US 497, 536 (2007). In short, he points out that, under the precedents of the Court, DHS can only exercise the authority granted it by Congress. He sees DACA as being an over-reach of DHS’s authority and “wield[ing] power that neither Congress nor the Constitution gave it.” Justice Thomas called the majority’s ruling “an effort to avoid a politically controversial but legally correct decision.” Setting my own views aside as an immigration attorney who wants every tool he can get to help his clients, I do have to agree with his assessment. Can there be any question that DACA, or immigration as a whole these days, is politically controversial? This decision, to me, feels like an attempt by the Court to avoid discussing the legality of DACA because it is a politically charged issue, and “kicking the can down the road” for as long as they can. In the end, DACA’s fate is unclear. The proponents of DACA appear to have won this round, and recipients can continue to maintain their residential status and benefits. However, this is far from over in my personal opinion. There is still a lot of pushback that it was created without any authority, and therefore it is an unlawful program. In what appears to be support of Justice Thomas’ dissent, and noting the slippery slope this decision goes down, Ilya Shapiro of The Federalist wrote that this decision “set a precedent that one president’s executive action can’t be rescinded by the next president unless he jumps through hoops that his predecessor didn’t have to [; t]hat’s a recipe for ever-expanding federal and executive power, to the detriment of our constitutional system of government.” My personal prediction…whether next month, next year, or ten years from now, another attempt will be made to rescind DACA and more lawsuits will be filed. At some point, the Supreme Court is going to have to go back to the beginning, ignore the politically charged nature of this issue, and rule on its legality.

What the Supreme Court’s Ruling on DACA Means for Its Future

My Thoughts

US Supreme Courts Decision

We’re Here To Help

(978) 685-8777