On June 18, 2020, the U.S. Supreme Court issued a long-awaited decision regarding the Department of Homeland Security’s (“DHS”) choice to rescind the immigration program Deferred Action for Childhood Arrivals (“DACA”). The Court noted the question before it was not whether DHS may rescind DACA but rather, whether DHS followed proper procedure in rescinding the program. In a 5-4 vote, with Chief Justice John Roberts writing the opinion for the Court, the holding was narrow but pointed. The Court held that then DHS Acting Secretary violated the Administrative Procedure Act (“APA”) because the decision was arbitrary and capricious and, therefore, the decision to rescind DACA must be vacated.

Under the APA, federal agencies must engage in reasoned decisionmaking. In considering the narrow standard of review available under the APA, the Court made clear that it was not seeking to decide whether DACA or its rescission were “sound policies.”[1] Instead, the Court’s role was to assess whether the decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment.”[2]

The heart of the analysis focused on the fact that then Acting Secretary failed to consider “important aspects”[3] of the program. The Court stated that DHS was in no way required to consider all policy alternatives conceivable. The Court found, however, that while the Acting Secretary was bound by the Attorney General’s determination of the legality of DACA, she had discretion to continue forbearance and/or accommodate particular reliance interests even though the benefit eligibility would be removed. “She instead treated the Attorney General’s conclusion regarding the illegality of the benefits as sufficient to rescind both benefits and forbearance, without explanation.” In the Court’s view, the Acting Secretary’s failure to offer a reason for terminating forbearance and not consider whether to accommodate particular reliance interests of DACA recipients was arbitrary and capricious in violation of the APA. The Court stated that DACA could not be rescinded in full without giving “any consideration whatsoever” to a forbearance-only policy when the agency had previously stated that forbearance was “especially justified” for “productive young children . . . who know only this country as home.”[4]

The Government raised several arguments that the decision was outside of the Court’s jurisdiction. The Court rejected each one. Notably, the Court rejected the Government’s position that the agency’s decision could not be reviewed under the APA because it fell under the agency discretion exception under §701(a)(2). Generally, this exception has been read narrowly to protect an agency’s discretion in deciding not to prosecute or enforce. The Court, however, saw the agency’s action as reaching beyond a non-enforcement policy because it granted benefits to individuals. The agency, in addition to refusing to institute removal proceedings against certain individuals, had solicited applications, instituted a review process, adjudicated whether individuals met enumerated criteria, and granted qualifying individuals with benefits such as work authorization and eligibility for Social Security and Medicare.

The opinion remands to DHS to “consider the problem anew.”[5] All three underlying cases that led to this decision were also remanded for further proceedings consistent with the opinion.[6] Despite the Court’s opinion, the future of the DACA program remains unclear.

[1] Department of Homeland Security, et al. v. Regents of the University of California, et al., 591 U.S. _____, _____ (2020) (slip op. at 29).

[2] Regents, slip op. at 9.

[3] Regents, slip op. at 23.

[4] Regents, slip op. at 22.

[5] Regents, slip op. at 29.

[6] Id.