On May 17, 2019, the Fourth Circuit Court of Appeals voted 2-1 that the Trump administration could not rescind the DACA program protecting young undocumented immigrants from deportation. The ruling, by Judge Robert Bruce King and Judge Albert Diaz states that the government’s removal of protections for immigrants who came to the United States as children violates the Administrative Procedure Act (APA). Judge Julius N. Richardson cast the dissenting vote.
The Court stated:
“[W]e agree with the district court that Plaintiffs’ challenges are subject to judicial review. We also agree with the district court that the government’s decision to rescind DACA did not require notice and comment under the APA. But the decision nonetheless violated the APA because—on the administrative record before us—it was not adequately explained and thus was arbitrary and capricious.”
The Court, however, “decline[d], under the doctrine of constitutional avoidance, to decide whether Plaintiffs’ Fifth Amendment rights were violated.” Specifically, the Court said that “[t]he point is that the Department [of Homeland Security] had before it at the time it rescinded DACA a reasoned analysis from the office tasked with providing legal advice to all executive branch agencies that supported the policy’s legality. Yet the Department changed course without any explanation for why that analysis was faulty.” (Opinion, 32)
Judge Richardson in his dissent argued that:
“Enforcement discretion lies at the heart of executive power. The Executive may decide to prosecute, or not prosecute, an individual or a group so long as the reasons for that decision are constitutionally sound and the decision does not violate or abdicate the Executive’s statutory duties. Here, the Executive’s proper exercise of that discretion to rescind DACA is judicially unreviewable under the Administrative Procedure Act, regardless of one’s view of the policy questions underlying DACA. To hold otherwise permits the Judicial Branch to invade the province of the Executive and impair the carefully constructed separation of powers laid out in our Constitution.” (Opinion, 37)