Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The current Supreme Court term is packed with “big” cases, but next week’s argument in the DACA cases promises to be one of the biggest.
It’s another confrontation over the Trump Administration’s hard line on immigration—the decision to shut down the Obama Administration’s Deferred Action for Childhood Arrivals program that deferred deportation and provided eligibility for work authorization to approximately 700,000 undocumented young people who came to the United States as children, lived here continuously since at least 2007, obtained at least a high school education, and passed a background check.
But this dispute has a unique twist.
The Trump Administration typically claims expansive executive branch authority regarding immigration-related actions—e.g., the travel ban, the reallocation of funds to build the wall on the border with Mexico, the attacks on state and local public safety laws, and the addition of the citizenship question to the census. For DACA, however, it asserts that the program had to be ended because it was unlawful: the Administration’s basic argument is that executive branch lacked the legal authority to adopt DACA.
It’s odd for any Administration to argue for limited Executive Branch power: the typical position is that it has the power, but also the discretion to decide whether and how to exercise it. And it’s particularly surprising for the Trump Administration to take that position on an immigration issue. What’s going on?
The DACA backstory shows that political imperatives forced the Administration to rely on the lack-of-authority argument, rather than invoking policy discretion—which then hobbled the Administration’s ability to defend its actions in court. Indeed, the Administration’s recent, eleventh-hour attempt to invoke policy discretion likely rests on the government’s recognition of the weakness of its position that DACA is unlawful.
The critical questions for the Justices are whether they will sanction administrative law arguments that allow the Administration to avoid accountability for its decision and shift the blame to “the law” and “the courts”; and whether they will require adherence to long-settled procedural rules governing agency action, or let the Administration avoid those rules in a rush to uphold its termination decision.
To understand the legal issues before the Court, it is first necessary to journey back to 2017, when the Trump Administration was trying to decide what to do about DACA.
The Decision to End DACA
Although candidate Donald Trump promised to end DACA if he was elected, President Donald Trump had a much harder time deciding what to do with the program.
In their just-published book Border Wars: Inside Trump’s Assault on Immigration, New York Times reporters Julie Hirschfeld Davis and Michael Shear provide a detailed account of the Administration’s decisionmaking process. There were two factions in the White House. Ivanka Trump, Jared Kushner, Paul Ryan, and a number of the President’s supporters in the business community argued in favor of continuing DACA. Steve Bannon, Stephen Miller, and Attorney General Jeff Sessions urged termination of the program. The President apparently was torn between sympathy for the DACA recipients—who he publically described as “incredible kids”—and pressure to keep his campaign promise.
To force the issue, Bannon worked with then-Kansas Secretary of State Kris Kobach (an ardent immigration opponent) to orchestrate a letter from a group of Republican Attorneys General threatening to file a lawsuit challenging DACA if the Administration did not rescind the program by September 5. Using that threat, they forced the decision to end the program.
Documents obtained through a Freedom of Information Act request (and quoted in the Supreme Court briefs) show that a White House “Principals Committee” meeting at the end of August 2017 concluded that the DACA program “is unlawful”; that the Justice Department would “send a message to [the Department of Homeland Security (DHS)] outlining the legal reasons that the DACA program is unlawful”; and DHS would produce a memorandum “withdraw[ing]” the
2012 memorandum creating the DACA program “in light of DOJ’s legal determination.” DHS would be allowed to wind-down the program, rather than terminating it immediately.
Getting President Trump to sign on to that determination was not easy. Davis and Shear say that President Trump “felt trapped by the September 5 deadline, much as Bannon and Kobach had intended.” He “reluctantly told advisors” that he would “end DACA with a six-month delay that would put pressure on Congress to save it or let it die. But he felt torn, trapped, and unsatisfied with the decision.”
DACA’s termination proceeded as outlined in the Principals Committee meeting. Attorney General Sessions sent a one-page letter declaring DACA “an unconstitutional exercise of authority by the Executive Branch,” and DHS Secretary Duke issued a memorandum rescinding DACA based on the Attorney General’s legal determination. (Indeed, a federal statute provides that the Attorney General’s legal determinations “with respect to all questions of law shall be controlling” on DHS.)
Importantly, in light of subsequent events, Davis and Shear report that Secretary Duke, who opposed terminating DACA, agreed to
issue the memo rescinding the DACA program, but she refused to sign on to the policy reasons Miller and Sessions were pushing for doing so. There would be no mention of the claim that the program encouraged illegal entry and disrupted the normal, legal channels for immigrating to the United States. In other words, no policy rationale would be given for ending the program. Duke would simply refer to prior court decisions and Sessions’s assertion that it was unconstitutional.
DoJ’s Litigation Conundrum
Not surprisingly, the decision to end DACA was challenged by multiple lawsuits, which were consolidated in four federal district courts—in San Francisco, Brooklyn, Washington, D.C., and Maryland.
But the “no legal authority” rationale used to force the termination decision within the Administration ended up hamstringing DoJ’s legal defense. Courts held that the fact that the decision rested on a legal determination weighed heavily in favor of judicial review. And they rejected the claim that DACA was unlawful based on the longstanding executive branch practice of granting deferral from deportation, the Reagan Administration regulation making individuals with deferred action eligible for work authorization, and Congress’s recognition of these practices in the immigration laws.
When it started losing, why didn’t the Administration simply issue a new decision rescinding DACA on policy grounds?
Probably because the termination decision had been sold to President Trump based on the assertion that DACA was illegal—which enabled him to state repeatedly that the Obama Administration had violated the law by setting up the program and that he wanted to work with Congress to protect DACA recipients, but needed a new law to do so. And, most importantly, such a “law made us do it” rationale let the President avoid political accountability for ending an extremely popular program.
In addition, negotiations with Congress did follow the termination decision. (As Davis and Shear explain, they fell apart notwithstanding Democrats’ willingness to fund in its entirety the construction of the Mexico border wall.) The Administration’s leverage in those discussions came from its position that a new law was needed to protect DACA recipients. If it admitted that the termination rested on policy discretion, then legislation wouldn’t be necessary to save DACA—Democrats could simply pressure President Trump to reverse his policy position.
But DoJ was forced to consider a new termination decision as a result of rulings by Judge John Bates in the DACA cases pending in the District of Columbia.
Judge Bates—a highly respected jurist who Chief Justice Roberts had appointed to serve for two years as head of the Administrative Office of the United States Courts—granted summary judgment to the plaintiffs, holding that the DACA termination was “arbitrary and capricious” in violation of the Administrative Procedure Act, because Secretary Duke’s termination memorandum “failed adequately to explain its conclusion that the program was unlawful”—referring to the legal reasoning as “meager,” “barebones,” and “inapposite.” That was particularly true given that the Administration was reversing the Obama Office of Legal Counsel determination that DACA was lawful—a judgment that the Solicitor General had vigorously defended in the Supreme Court during the Obama Administration.
Judge Bates also addressed DoJ’s argument that the termination could be upheld based on “litigation risk”—the possibility that DACA could be invalidated by a court resulting in a nationwide injunction and “chaotic” end to the program. He found the possibility of such a result “implausible” and any reliance on that factor therefore arbitrary and capricious.
As a remedy, Judge Bates “vacated DACA’s rescission,” but stayed that order for 90 days. He stated that “[d]uring that time, the Secretary of Homeland Security or her delegate may reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” Judge Bates made clear in the order accompanying his opinion that DHS could issue a new rescission decision, directing the parties to report after the 90 days “whether DHS has issued a new decision rescinding DACA.”
Two months later, in June 2018, DHS Secretary Kristin Nielsen issued a memorandum addressing the DACA termination that expressly responded to Judge Bates’ request for a further explanation: “[b]ecause the D.C. district court has requested further explanation, I am providing such explanation here.” Secretary Nielsen “decline[d] to disturb the Duke memorandum's rescission of the DACA policy” and stated her “understanding that the Department of Justice will continue to seek appellate review of preliminary injunctions that restrict DHS from implementing the Duke memorandum and rescinding the DACA policy.”
Nielsen reaffirmed the Duke memorandum’s determination that DACA was unlawful (which, she acknowledged, she was “bound by” because it rested on the Attorney General’s legal determination), and also reiterated the concern about “serious litigation risk.”
But Nielsen also went on to state that “regardless of whether these concerns about the DACA policy render it illegal or legally questionable, there are sound reasons of enforcement policy to rescind the DACA policy”—citing her view that DHS “should not adopt public policies of non-enforcement of [the immigration] laws for broad classes and categories of aliens under the guise of prosecutorial discretion.”
The Nielsen memorandum is a strange document. It purports to explain Secretary Duke’s decision and expressly leaves that decision in place. But it includes a paragraph reciting policy justifications that do not appear in the Duke memorandum and differ from the Duke memorandum’s exclusive reliance on DACA’s illegality—indeed, the reporting in Border Wars (discussed above) indicates that Secretary Duke expressly refused to include policy-based justifications in her memorandum.
Did Secretary Nielsen make a new termination decision—which would have allowed consideration of these new reasons—or did she simply explain the Duke decision, which would place these new reasons off-limits in assessing the agency action under the Administrative Procedure Act? Or did DoJ, in trying to craft a memorandum that did a little bit of both, fail to accomplish either?
DoJ’s filing before Judge Bates took the position that the Nielsen memorandum was not a new agency action: rather than asking Judge Bates to assess the Nielsen memorandum as a new DHS decision, it asked Judge Bates to revise his prior order and “leave in place DHS’s September 5, 2017 decision to rescind the DACA policy”—the Duke decision. DoJ stated that “[g]iven her agreement with both the decision and its reasoning, Secretary Nielsen appropriately left then-Acting Secretary Duke’s decision in place as her own.”
Judge Bates recognized that the government had left the prior decision in place and had not made a new one: “Instead of issuing a new decision rescinding DACA, as the Court’s order had contemplated, Secretary Nielson simply ‘declin[ed] to disturb’ the earlier decision to rescind the program by then-Acting Secretary of Homeland Security Elaine C. Duke.” And he pointed out the flaw in the government’s approach, stating that the government had:
placed itself in a dilemma. On the one hand, it cannot rely on the reasons it previously gave for DACA’s rescission, because the Court has already rejected them. On the other, because “an agency’s action must be upheld, if at all, on the basis articulated by the agency itself,” DHS also cannot rely on new reasons that it now articulates for the first time. The government’s attempt to thread this needle fails.
He therefore entered an order invalidating the termination decision.
One has to have some sympathy for the DoJ lawyers who almost certainly were involved in crafting the Nielsen memorandum—they were asked to undertake an impossible task.
The best legal course for the Administration would have been to issue a new agency decision based on the exercise of policy discretion. That is what the Trump Administration did, for example, in the travel ban litigation (issuing three successive executive orders) and in the litigation challenging the exclusion from the military of transgender individuals.
But there were significant obstacles to following that approach in the DACA context. First, it would require the Administration to take responsibility for eliminating DACA, and prevent it from invoking the blame-shifting argument that the Obama Administration put in place an unlawful program. Second, a new policy rationale would that have undermined all of the prior statements by President Trump and others claiming that they wanted to protect DACA recipients but needed Congress to act in order to do so.
In addition, a new agency action would have required the lawsuits to go back to square one, with DoJ required to file the administrative record on which the new agency action was based and the lower courts obliged to consider whether the new agency decision violated the APA. That would have delayed these cases’ arrival at the Supreme Court, the forum that the Administration considered most likely to upheld the termination.
But without a new agency action, considering Nielsen’s policy points as new justifications for the Duke decision is precluded by settled administrative law principles—as Judge Bates held. So the DoJ lawyers had to know that their efforts to smuggle policy-based reasons into the Duke decision were doomed to fail. (And were particularly disingenuous given the Border Wars reporting that Secretary Duke explicitly refused to include such reasons in her memorandum.)
In any event, DoJ took the same position regarding the Nielsen memorandum in all of the DACA cases that it took in its filing before Judge Bates (discussed above): that the Nielsen memorandum was an explanation of the Duke decision, not a new agency action.
The Challenge for the Supreme Court
In a time of intense polarization and suspicion of government institutions, the courts’ role in reviewing administrative agency decisions is more important than ever—the entire purpose of the Administrative Procedure Act is to promote accountability for agency actions. For example, the Court explained in last term’s census decision that “[t]he reasoned explanation requirement of administrative law . . . is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.”
Issues of accountability are at the center of this dispute—in particular whether an agency should be able to assert that its action is compelled by the law, but insulate that conclusion from a judicial determination of whether the agency’s view of the law is correct. That of course would be a recipe for avoiding accountability because an agency could claim its decision was legally required—based on a patently erroneous legal determination—but avoid correction of that error by the courts, and therefore successfully insulate itself from accountability.
Certainly the DACA termination backstory shows that the entire purpose of the Administration’s approach was to avoid accountability—to say that “the law” required DACA’s termination as well as to enable the Administration to use the harm to DACA recipients as a bargaining chip with Congress. Will the Court permit that gambit, which not only avoids accountability but sanctions a politically-motivated disclaimer of executive authority that could bind future Administrations?
Another important value, embodied in the APA as well as in the Constitution, is procedural regularity, and here too the DACA dispute poses significant issues for the Court.
As Judge Bates concluded, the Duke and Nielsen memoranda fail the threshold requirement of a reasoned explanation for the termination decision—a fundamental prerequisite for any administrative action. The Court could rest its decision on that ground alone, reaffirming the public’s right to a justification for agency action, especially an action involving a 180-degree change in position.
These questions of accountability and procedural regularity are heightened by the quite surprising reply brief filed by the Solicitor General last week, which reverses position on the Nielsen memo, urging the Court to consider it a new agency action and to uphold DACA’s termination based on the policy explanations offered by Secretary Nielsen.
Will the Court entertain this argument, advanced for the first time before the Supreme Court and reversing the position the government took in the lower courts? (And raised in a reply brief, depriving the opposing parties of any opportunity to address the argument in their briefs.) Usually the Justices require lower courts to address issues first—and that would be especially appropriate here, because a new agency action requires the government to file a new administrative record, and the government’s change in position raises questions about reviewability and substantive validity not addressed by any lower court.
This litigation tactic creates the appearance of an Administration that believes that a majority of the Justices are “on its side,” and willing to uphold a termination decision based on an argument that would be rejected out of hand, given the procedural irregularities, if it were advanced by any other litigant or in any other federal appellate court. A decision by the Court to overlook those irregularities here creates a precedent that will simply encourage more such litigation tactics in the future.
And the Solicitor General’s about-face raises accountability questions as well. A decision by the Court upholding the termination decision in this murky procedural context will be claimed by the Administration as an endorsement of its no-legal-authority position—something that would be impossible if the Court required adherence to settled procedural rules by requiring the agency to issue a new decision resting solely on policy grounds, and then allowing the lower courts to apply the APA’s standards to that very different agency action.
With a divided Congress unable to agree on most substantive legislation, administrative decision-making has become the principal means of federal government action. The decision in the DACA cases will reveal much about the Court’s willingness to enforce the important norms that govern administrative actions and that are now more important than ever in ensuring accountability and procedural regularity for decisions that have a huge impact on Americans’ lives.
Andrew Pincus is a partner in Mayer Brown LLP and a Visiting Clinical Lecturer in Law at Yale Law School. He filed an amicus brief in the DACA cases on behalf of business groups and individual businesses, but the views expressed here are his own and not those of his clients or his law firm. You can reach him by email at apincus at mayerbrown.com.