Benjamin Eidelson
This post offers preliminary analysis of DHS v. Regents, last Thursday’s Supreme Court decision invalidating the 2017 rescission of the Deferred Action for Childhood Arrivals (DACA) policy. I’ll focus mainly on Chief Justice Roberts’ approach to the merits, which closely tracks a theory developed in a brief that I co-authored on behalf of the “D.C. Respondents” (as well as an op-ed that I published in the fall).[1] I’ll also flesh out the Court’s sound reasons for refusing to consider post hoc justifications articulated by the Department of Homeland Security (DHS) in a 2018 memo. Along the way, I’ll respond to some emerging criticisms of the Chief Justice’s approach and note some of the ways in which the Regents decision should shape further litigation over the DACA policy in the coming months.
Because this post will be long enough already, I’ll assume general familiarity with the DACA policy and the Trump administration’s decision to rescind it, as well as the earlier litigation over the related Deferred Action for Parents of Americans (DAPA) policy. Adam Cox, Marty Lederman and Cristina Rodriguez provide a thorough primer on those issues here. And I’ll discuss the Court’s holding on the threshold question of reviewability only in passing (and the equal protection issue not at all).
I. Forbearance, Benefits, and Reasoned Decisionmaking
If the Regents decision makes one thing clear, it’s that reasoned analysis of the legal issues surrounding DACA requires first understanding what “DACA” actually is. So that is the natural place to start.
Adopted in 2012, the DACA Memorandum established a process and agency-wide criteria for granting “deferred action” to certain childhood-arrivals who lack a lawful immigration status. As the Court explained in Regents, “deferred action” is a term of art for “the decision to defer removal (and to notify the affected alien of that decision).” Such decisions first entered public view in 1975, when a FOIA suit (brought, as it happens, by John Lennon) showed that the government had long designated many noncitizens as “nonpriority”—a “euphemism for an administrative stay of deportation.” The government relabeled the same status as “deferred action” in the late 1970s and has continued to view it as “an informal administrative stay of deportation … bestowed as a matter of prosecutorial grace.” At its core, then, DACA simply embodied then-DHS Secretary Janet Napolitano’s judgment that—at least in the absence of any countervailing facts identified on a case-by-case basis—many undocumented young people who were brought to the country as children warranted that exercise of enforcement forbearance.
But while deferred action itself is just a nonenforcement decision, DHS has also long treated its deferred-action decisions as relevant to other matters. Most notably, the statute prohibiting employment of any “unauthorized alien” defines that term to exclude persons “authorized to be so employed … by the [DHS Secretary],” 8 U.S.C. 1324(a)(h)(3)—and the longstanding DHS regulation exercising that power authorizes employers to hire, among others, most “alien[s] who ha[ve] been granted deferred action.” 8 C.F.R. 274a.12(c)(14). (Marty has laid out the history of that regulation in detail here.) Similarly, Social Security benefits are limited to those “lawfully present in the United States as determined by the [Secretary],” 8 U.S.C. 1611(b)(2) (emphasis added), and the government has interpreted that statute to authorize the DHS Secretary to extend eligibility to individuals who are granted deferred action (while stressing that it does not regard such individuals as “lawfully present” in any broader sense).
So, seen one way, there are two parts to “DACA”: (1) a policy for granting deferred action (i.e., enforcement forbearance); and (2) benefits that flow from such grants under separate regulations. Seen another way, “DACA” itself is just the first of those two components—although, of course, the fact that DACA triggers additional consequences remains important. The choice between these descriptions is semantic, but the underlying point is crucial. Whatever “DACA” means, there are two, independently significant policy effects of the DACA Memorandum (and hence also of rescinding it). First, that agency policy provided life-changing practical assurances against removal to hundreds of thousands of people—allowing them to live without fear that one wrong move or police encounter could trigger their expulsion from the country. Second, it also cleared the way for nearly all of those people to obtain work authorization and Social Security benefits.
Once all of this is understood, the error in the rescission decision is fairly clear-cut. As Regents explains, Attorney General Jeff Sessions and Acting DHS Secretary Elaine Duke rested the decision to rescind the DACA Memorandum on a legal conclusion—specifically, a judgment that “DACA” suffered from the same legal defects identified by the Fifth Circuit in litigation over the later DAPA policy. But, even accepting the Fifth Circuit’s reasoning as gospel, nobody in the administration undertook a serious analysis of which aspects of “DACA” that reasoning might call into question. As Regents explains, such an analysis would have revealed that the Fifth Circuit “was careful to distinguish th[e] forbearance component from eligibility for benefits.” It condemned the large-scale provision of work authorization and so-called “lawful presence,” but it made clear that “the Secretary’s forbearance authority was unimpaired.”
Pointing to the Fifth Circuit’s reasoning thus did nothing to explain why the administration rescinded the DACA Memorandum—thereby ending both the immensely significant deferred-action policy and cutting off its allegedly problematic downstream consequences—rather than attacking those consequences directly. “Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients,” the Chief Justice explains, “that conclusion supported only disallowing benefits.” Indeed, “[t]he three-page memorandum that established DACA is devoted entirely to forbearance, save for one sentence directing [the agency] to ‘determine whether [DACA recipients] qualify for work authorization.’”[2] Making changes to the benefits triggered by deferred action (whether in general or in DACA-based cases) thus would not even have required a conforming amendment to the DACA Memorandum—let alone its wholesale rescission. The choice to rescind the DACA policy was therefore a paradigm case of “failing to consider important aspects of the problem.”
Josh Blackman faults Chief Justice Roberts for “cook[ing] up [this approach] in his chambers” and taking the parties by surprise. Others will have to judge, but I do not see how the majority’s argument based on State Farm and the distinction between forbearance and benefits differs in any material respect from the analysis detailed in the D.C. Respondents’ brief. (I certainly agree, though, that this approach got discouragingly little attention until the Court’s decision.)
More substantively, some early commentary criticizes this analysis as “essentially ad hoc”—a contrivance to get to a desired outcome—and as somehow elevating the “arbitrary and capricious” standard. Both criticisms seem misplaced. Suppose that A is valuable and important, B is problematic, and eliminating A will also have the effect of destroying B. Surely the fact that B is problematic is not, standing alone, a sufficient explanation for attacking that problem by eliminating A. Any rational decisionmaker would at least consider whether the problem with B could instead be addressed while preserving the unquestioned value of A. That proposition is neither novel nor demanding; as Chief Justice Roberts points out, it was the central holding of State Farm. But the administration never came close to meeting this modest requirement. It is hard to imagine a more appropriate use of arbitrary-and-capricious review than correcting that kind of blunder in an agency decision with life-altering consequences for hundreds of thousands of people.
Another line of criticism holds that, so long as the administration reasonably believed that continuing DACA was unlawful, that belief should suffice for purposes of arbitrary-and-capricious review. I’m inclined to agree with Daniel Deacon that this “little bit wrong” rule is unsound. But even if that rule were correct, it wouldn’t really furnish an objection to Regents. Here, the administration did not form any reasonable belief that the action it took—rescinding the DACA Memorandum—was legally required. To the contrary, as Chief Justice Roberts explains, “the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy.” The Solicitor General likewise declined to take the position that DACA’s enforcement forbearance was illegal. So the same failure to engage with the distinction between forbearance and benefits vitiates any defense of the rescission based on deference to reasonable legal judgments as well.
It would be a mistake to take from Regents, however, that if the administration had drawn that distinction and simply revoked all benefits from DACA recipients—without offering any explanation beyond Sessions’ and Duke’s—its action would have survived review. Likewise, it would be a mistake to infer that the government could simply do that now. If such a change were based on a claim about what the law requires, that claim would have to be reasonably explained. Thus, for example, a decision to revoke work authorization for DACA recipients based on alleged illegality would require a reasoned explanation of why, and in what set of applications, the Reagan-era work-authorization regulation mentioned above is actually unlawful. The same goes for the distinct question of “lawful presence” for purposes of Social Security. Thus far, the government has skirted those delicate questions in favor of conclusory assertions about the threat to the “rule of law” posed by “DACA.” But Regents is reasonably read to require a coherent and disaggregated approach that engages with the actual regulatory regime. Again, that does not seem like too much to ask of agency decisionmakers even in their routine decisions—let alone when hundreds of thousands of livelihoods hang in the balance. But it is vastly different from anything the administration has done in this area so far.
A similar point will be key for the ongoing litigation, in the Southern District of Texas, in which several states have affirmatively challenged DACA’s legality. Some have suggested that the Regents opinion is a boon to the challengers in that case because, in addressing the reviewability question, the Court explained that “DACA is not simply a non-enforcement policy” (using “DACA” in the more encompassing of the two senses noted above). But, again, we shouldn’t be misled by the confusing semantics of the term “DACA.” The point the Court was making—that grants of deferred action based on the DACA Memorandum also trigger benefits eligibility—has never been in doubt. Far more important is that Regents should finally dispel the widespread and longstanding confusion about how to analyze legal questions regarding deferred action and its various regulatory consequences.
In particular, the district court in the Texas case will now need to analyze “DACA” (in the broad sense) as the bundle of sticks that it actually is. The challengers will need to persuasively develop particular, as-applied objections to specific regulations and policies. And the administration will need to do that as well. Although the Justice Department has sided with the challengers from the outset, it has so far mostly avoided articulating any granular legal theory about why any individual sticks in the DACA bundle are unlawful—instead keeping to the kinds of obfuscatory generalities that the Solicitor General tried but failed to make work in Regents. The administration has thereby also avoided articulating exactly which of the Justice Department’s longstanding positions—articulated, for instance, in the Obama administration’s briefs defending DAPA—were wrong. Now that the Supreme Court has squarely held that “that forbearance and benefits are legally distinct and can be decoupled,” that approach will be untenable.
Perhaps most importantly, any relief that the district court may order will likewise need to be tailored to redress particular legal violations. Accordingly, an order that simply declares “DACA” unlawful should now be off the table unless the court either (1) becomes the first to hold that the large-scale provision of enforcement forbearance is unlawful in itself, or (2) embraces the notice-and-comment objection to the DACA Memorandum (with which the administration has so far “respectfully disagree[d]”). Regents may thus invite a greater focus on the notice-and-comment issue in the months ahead. But it also bears noting that, were the court to hold the DACA Memorandum unlawful on either of these grounds, Regents’ discussion of reliance (to which I turn next) would form the basis of a powerful argument for a stay pending appeal or remand-without-vacatur.
II. Reliance and Costs
After holding that the failure to distinguish forbearance from benefits “alone” sufficed to invalidate the rescission, Regents goes on to hold that Secretary Duke also impermissibly “ignore[d]” the “serious reliance interests” engendered by the DACA policy. Here I will just note three points.
First, I do not think Regents is fairly read (as Zachary Price suggests) to impose new, “meticulous standards” in this area that could obstruct reasonable changes in enforcement policy. To be sure, the Court credited the challengers’ assertion “that there was much for DHS to consider” in this case. And there undoubtedly was. But that fact just reflects the extraordinary practical significance of the DACA policy, which has touched the lives of hundreds of thousands in ways that cut across all spheres of American life. Most agency policies—even most significant nonenforcement policies—pale in comparison. And even with respect to a policy of DACA’s exceptional importance, the Court did not prescribe a rigid standard for the form that an agency’s weighing of reliance must take. As the Court explained, Secretary Duke’s abject failure to acknowledge any such considerations made that unnecessary.
Second, Chief Justice Roberts’ reliance argument is particularly persuasive in tandem with the forbearance/benefits argument set out above. Consider Justice Thomas’s objection that “[n]o amount of reliance could ever justify continuing a program that allows DHS to wield power [unlawfully].” Even if it is true that reliance is irrelevant to an agency’s decision whether to follow the law, the whole point of the forbearance/benefits argument is that the choice facing the agency was far more complex than that. As noted above, the Trump administration itself never claimed that DACA’s core policy of enforcement forbearance is unlawful. So, even from the administration’s point of view, the problem was how to respond to an untenable status quo in which the conjunction of deferred action and benefits gave rise to a legal violation. And once the problem is understood in that way, it is obviously a problem to which reliance interests are relevant. Any rational decisionmaker would take account of the real-world effects of different ways of curing the illegality.
Third, as that line of argument suggests, approaching these issues through the lens of “reliance” is probably more distracting than helpful. That framing gives unwarranted salience to claims (such as Justice Thomas also makes) that reliance by DACA recipients was not justified. The real problem cuts deeper than that debate. As Justice Scalia wrote for the Court in Michigan v. EPA, “reasonable regulation ordinarily requires paying attention to the advantages and the disadvantages of agency decisions.” Whatever one makes of the disclaimers associated with the DACA policy, there were surely disadvantages to wholesale rescission of DACA that merited consideration. These include harms to DACA recipients (harms that would surely count for something even if all reliance had been imprudent), but they include much else as well. For instance, Regents highlights the “200,000 U.S.-citizen children” of DACA recipients—Americans who have much at stake, but who aren’t naturally described as have “relied” on DACA (whether justifiably or not). And Regents notes as well the many billions of dollars in economic activity and tax revenue that would be lost if DACA were rescinded—much of which, again, couldn’t be chalked up to “reliance.” The mandate to consider “reliance interests” is thus better seen as just one application of a broader and simpler rule that an agency should take account of significant harms that its action will inflict. And while Regents uses the language of “reliance,” its wide-ranging discussion of costs suggests that the Court understood and intended as much.
At bottom, Regents correctly held that the rescission was arbitrary and capricious because Secretary Duke misconceived the choice before her—indeed, because she failed to appreciate that she had a choice at all. And given that she acted without appreciating the existence of any other options, it should not be surprising that she also failed to weigh any costs of the particular option she chose.
III. Post Hoc Justifications, Agency Accountability, and Convenient Litigating Positions
Chief Justice Roberts’ second critical move in the Regents opinion is to dismiss Secretary Nielsen’s 2018 memorandum as an improper post hoc rationalization. That memorandum had furnished alternative, non-legal grounds for the rescission—ranging from a purported judgment that policies of DACA’s scale should only come from Congress, to an assertion that nonenforcement policies encourage unlawful immigration. The Court’s refusal to consider these reasons has been criticized as “splitting hairs” and, similarly, as resting on a “meaningless distinction” between new reasons for an old action, on the one hand, and new reasons for a “new,” superseding action, on the other. But as the majority opinion explains—albeit perhaps too briefly—the decision to disregard the Nielsen Memorandum in fact “serves important values of administrative law.”
There are really two distinct forms of the challenge to the Court’s approach. First, why require a “new” decision whenever the agency wants to defend the same course of action based on new reasons? Why not just let the agency head file a memorandum in court articulating those new reasons—at least when the relevant action could be taken without satisfying any formal procedures regardless (and when the administrative record would be unchanged)? Second, even assuming that an agency is required to make a “new,” superseding decision, why didn’t the Nielsen Memorandum qualify as exactly that? Both challenges are raised in the Regents opinions and the early commentary—tracking two distinct arguments made by the Solicitor General before the Court—and each warrants separate discussion.
1. Why require a “new” agency decision?
Chief Justice Roberts focuses mainly on the first of these two objections: Why require a new agency action at all? He answers by pointing to three “important values of administrative law” served by that rule: (1) promoting “agency accountability”; (2) discouraging the adoption of “convenient litigating positions”; and (3) facilitating “the orderly functioning of the process of review.” These track the “three central values of administrative law” identified in the D.C. Respondents’ brief (pp. 51-55). But despite asserting that “here the rule serves [those] values,” Regents does relatively little to spell out how so. That omission—particularly in conjunction with the opinion’s ode to “turning square corners”—makes Regents an easy target for the “mere technicality” critique. So it’s worth appreciating just how sharply the cited values actually were threatened on the facts of this case. (Given the length of this post, I will comment on just the first two of the three.)
Start with agency accountability. Regents explains that “[r]equiring a new decision before considering new reasons promotes ‘agency accountability’ by ensuring that parties and the public can respond fully and in a timely manner to an agency’s exercise of authority” (emphasis added). That language is abstract and general, but it points to a concrete concern about this particular case. As the Court was well aware, when the administration announced the rescission in September 2017, it went to great lengths to persuade the public that its action was legally compelled. The White House Press Secretary insisted that the President supported DACA as a matter of policy. But “[i]t was a legal decision,” she said, “and that would fall to the Attorney General.” Remarkably, the administration then maintained this same public messaging even after Secretary Nielsen filed her in-court memorandum asserting alternative, policy-based grounds for the rescission. To this day, in fact, President Trump’s campaign website frames the action solely in legal, not policy, terms. All of that has an obvious explanation: A discretionary rescission based on policy grounds would have had very different political implications, and it would have been far less effective as leverage to extract immigration concessions from Democrats in Congress.
That context is critical to understanding Regents’ point about the need for the public to be able to “respond fully and in a timely manner” to the administration’s reasons. If the Court had upheld the rescission last week based on alternative policy grounds articulated only in a 2018 court filing—without forcing the public reckoning that would have accompanied (or may yet accompany) a new rescission action—that decision would have facilitated the administration’s effort to obscure its reasons and mislead the public about the actual scope of its discretion. Many observers would understandably have concluded (and the administration would surely have claimed) that the “legal decision” advertised to the public all along had been vindicated by the courts—even as a majority of the Court may well have believed that, at least with respect to the core policy of forbearance, preserving DACA was a perfectly lawful policy option.
The consequences of a “new” decision are materially different in this regard. To make the point concrete, imagine the likely political and media reaction if the administration now moves to rescind DACA again—and this time clearly states, in its decision memorandum, that it would take that course even if it were freed of any legal constraints. Now compare that hypothesized reaction to the essentially nonexistent public reaction to Secretary Nielsen’s filing of her June 2018 memo asserting “separate and independently sufficient” reasons for her predecessor’s choice. The difference seems obvious.
Of course, if the administration had rendered a new decision at the time of the Nielsen Memorandum, that would not have prompted the same reckoning as such a decision would now. But, still, it would have made a far greater impact than the actual Nielsen Memorandum did. Such a decision could well have required a new six-month wind-down period. And regardless, it would likely have mooted the various pending cases, sending the litigation back to square one. The government in fact argued that it shouldn’t be required to issue a new decision precisely because that would “reset this protracted litigation.” But such a reset—of the kind that has now taken place—has the virtue of making clear to the world that the administration has abandoned its first effort and made a distinct decision worthy of equal attention and scrutiny as the first. (Compare, for instance, the successive iterations of the President’s travel ban, each of which provoked a great deal of public engagement.)
Regents also reasoned that, quite apart from concerns about political accountability, “[c]onsidering only contemporaneous explanations for agency action . . . instills confidence that the reasons given are not simply ‘convenient litigating positions.’” In other words, the Court lacked confidence in the fairness and integrity of the Nielsen Memorandum in light of the circumstances of its creation. The Court thus implicitly held that any “presumption of regularity” (which the Solicitor General had invoked on this issue) was either inapplicable or rebutted.
And once again, that was hardly a matter of enforcing the rules for the rules’ sake given the facts of this case. Secretary Nielsen’s assessment of the reasons for and against rescinding DACA in June 2018 would obviously have been colored by the fact that she was still actively litigating the merits of her agency’s existing decision to rescind DACA. And the contents of the Nielsen Memorandum did nothing to dispel that concern; if anything, they underscored that the document was contrived to meet the litigation needs of the moment. By contrast, one could reasonably hope that forcing an agency to take a new action—thereby abandoning any hope of vindicating its original decision in further litigation—would mitigate some of the gravitational pull of the existing decision on the agency’s thinking.
To be sure, it’s hard to believe that this administration will approach DACA’s merits with anything like fair and considered judgment even in the context of a new decision. But that is just because we take for granted that all of the administration’s asserted reasons in this sphere are post hoc rationalizations for decisions based on political calculation, palace intrigue, and personal whim. That bleak reality is hardly an argument for accepting the Nielsen Memorandum as the best one could expect and so relieving the administration of the burdens that would apply to more reasonable decisionmakers.
Indeed, there is real irony in the suggestions—first by the Solicitor General, and now by Justice Kavanaugh as well—that further proceedings are pointless here because they will just amount to “writ[ing] a few more words” and so will result only in “some delay.” This line of thought would have the courts presume that all past decisionmaking was undertaken with care and good faith, but also that, if there were any lapses or omissions, any future decisionmaking to correct those would surely be an empty exercise of rationalizing a preordained result. Regents was right to reject that approach and insist that DHS make its decision under conditions that would, at least for a reasonable decisionmaker, conduce to reasoned decisionmaking.
2. But wasn’t the Nielsen Memorandum a “new” decision?
That brings us, finally, to the second form of the formalism charge: Even if a new, superseding decision was needed, why wasn’t the Nielsen Memorandum itself one? Justice Kavanaugh leveled that objection in dissent, and Ilan Wurman suggests that the majority “had no response.”
But the Chief Justice’s position was straightforward and correct. As the Court explained, “the Nielsen Memorandum was by its own terms not a new rule implementing a new policy.” The memorandum “declined to disturb” Secretary Duke’s decision, but it did not purport to supplant or supersede it. Nor did the Nielsen Memorandum suggest that DACA would remain rescinded in the administration’s eyes even if Secretary Duke’s action were vacated.
To be sure, the majority did not delve deeply into the debate over the proper characterization of the Nielsen Memorandum. That was probably because the issue is of little consequence or wider interest beyond this case—a good reason for me not to delve too deeply either. Still, two points are worth understanding, if only to forestall any inferences that the majority distorted the memorandum to reach a desired result.
First, whatever ambiguity the Nielsen Memorandum contains was the result of a transparent litigation gambit by the government, and the Court was right to see through it. As explained above, a new, superseding action would likely have mooted the existing cases and, in the Solicitor General’s words, “reset the litigation.” And it might have required a new six-month wind-down period as well. Accordingly, the government carefully crafted the memorandum not to read as a superseding rescission (which, after all, would have been easy to write clearly if that were the goal). This is also why, as Regents notes, the government specifically asked Judge Bates to amend his earlier order of vacatur so as to “leave in place [Duke’s] September 5, 2017 decision to rescind the DACA policy.” Indeed, if the Nielsen Memorandum were operative as a rescission action in its own right, there would have been no need to ask Judge Bates to revisit his order vacating the Duke Memorandum at all.
It was only once the government had gotten to the Supreme Court—and even then, really only in the reply brief—that the Solicitor General took the position that the Nielsen Memorandum was actually operative as its own action rescinding DACA. (I’m reminded of the Golden Snitch, in the Harry Potter books, that “opens at the close” of a long quest to reveal its true nature and save the day.) If the Court had accepted that characterization at that late stage—after the government had already exploited its prior characterizations to get a faster path to Supreme Court review, and despite the more natural reading of the memorandum itself—it would have made itself complicit in the government’s effort to manipulate the courts for tactical benefit.
Second, and more simply, allowing the Nielsen Memorandum to be recast in this way would have subverted the very same values that are served by requiring a new decision in the first place. With respect to both political accountability and the fairness of the agency’s reasoning, it matters that the new decision comes at the cost of abandoning efforts to vindicate the old one. Here, the government’s deliberate treatment of the Nielsen Memorandum as just another step in the legal dispute over the original rescission forestalled the public reckoning that would accompany a second rescission decision, and it made it impossible to have “confidence that the reasons given [we]re not simply ‘convenient litigating positions.’” Once that damage was done, it would have been just as inappropriate to treat the Nielsen Memorandum as a “new” action as it would have been to consider its arguments in support of the old one.
* * *
In practical terms, the Court’s decision in Regents is a tremendous victory for the countless people whose lives have been touched by DACA. But taken together, the two aspects of Regents that I’ve described and defended here—the arbitrary-and-capricious holding, and the reinforced prohibition on post hoc rationalizations—represent an important reaffirmation of core principles of rationality and accountability in government decisionmaking as well.
Benjamin Eidelson is an Assistant Professor of Law at Harvard Law School. You can reach him by e-mail at beidelson at law.harvard.edu.
[1] I am speaking here only for myself.
[2] As the D.C. Respondents’ brief explained, the DAPA Memorandum differed in this respect. Rather than limiting itself to deferred action, that memorandum arguably invited the characterization of “DAPA” as a unified package or status—including enforcement forbearance, work authorization, and an ill-explained form of “lawful presence.” That poor drafting partly explains why the courts in the DAPA litigation responded to their concerns about benefits by enjoining the DAPA Memorandum itself—despite efforts by Marty and by Anil Kalhan to point out at the time that the challengers’ real beef was not with DAPA’s deferred-action policy, but with the pre-existing regulatory scheme.