Supreme Court Rules Against DHS, Calls DACA Termination “Arbitrary and Capricious”

By Aryana Swanson

On June 18, the Supreme Court ruled against the Department of Homeland Security in the legal battle over the termination of the DACA program, which protects immigrants who came to the United States as children from immediate deportation. The court’s 5 to 4 vote in favor of the Regents of the University of California, found that DHS’s decision to end DACA was “arbitrary and capricious” under the Administrative Procedure Act (APA). Justice John G. Roberts, Jr. wrote the majority opinion in the decision.

In 2012, the U.S. Department of Homeland Security (DHS) adopted the “Deferred Action for Childhood Arrivals” (DACA) program. DACA allows undocumented immigrants who came to the United States as children to apply for a two-year delaying of deportation and work permits. 700,000 people have made use of this program so far.

In 2017, the Trump administration began a phase-out of the DACA program because the Attorney General concluded that it was unlawful. Using the same conclusion, the Acting Secretary of the Department of Homeland Security announced that DHS would no longer accept new applications and would end the program.

When the Acting Secretary of DHS announced the end to the DACA program, she provided her considerations. “Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings” and the “letter from the Attorney General,” she concluded that the “DACA program should be terminated. Id., at 117a” (591 U.S. __ 2020). The Supreme Court wrote that “the basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted” (591 U.S. __ 2020).

All parties agree that the DHS can rescind DACA, but the plaintiffs argued that the way in which DHS terminated DACA violated the Administrative Procedure Act because the secretary failed “to adequately address important factors bearing on her decision” (591 U.S. __ 2020). They also argued that ending DACA was in violation of equal protection guaranteed by the Fifth Amendment.

The U.S. Court of Appeals for the Ninth Circuit granted a preliminary injunction which restored DACA because the plaintiffs were likely to win and they would suffer irreparable harm without relief. “By virtue of receiving deferred action, 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. Access to such benefits is an interest “courts often are called upon to protect. Ibid” (591 U.S. __ 2020).

The Court addressed three main issues in its review of this case: “(1) whether the APA claims are reviewable, (2) if so, whether the rescission was arbitrary and capricious in violation of the APA, and (3) whether the plaintiffs have stated an equal protection claim” (591 U. S. __ 2020). The Court found that the APA claims are reviewable, ending DACA was arbitrary and capricious, and that the plaintiffs do not have any plausible equal protection claim. Justice Sotomayor concurred on the first two findings, but dissented on the third, writing that the plaintiffs’ should be able to develop their equal protection claims.

Justice Clarence Thomas dissented from the majority, in which he wrote that DHS’s decision is “clearly reasonable” because “the program was unlawful from its inception” (591 U.S. __ 2020). Both the Government and Justice Thomas wrote that the DACA program “‘conferred no substantive rights’ and provided benefits only in two-year increments. Reply Brief 16– 17; App. to Pet. for Cert. 125a. See also post, at 23–24 (opinion of THOMAS, J)” (591 U.S. __ 2020). Therefore they contend that DACA recipients would have no “reliance interests.”

Justice Roberts responded to the dissent and stated: “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.”

Roberts added that when agencies change policies, like DHS did in this case, they must keep in mind that those old policies might have created “serious reliance interests” (591 U.S. __ 2020). To the majority, these serious interests are present when one considers that 700,000 people have relied on DACA benefits to date.