The Supreme Court recently ruled that the U.S. Department of Homeland Security’s 2017 decision to rescind the Deferred Action for Childhood Arrivals (DACA) program violated the Administrative Procedure Act (APA), and thus, the rescission must be vacated. Although the case focused on DACA, it may have important implications for review of administrative decisions in other areas as well.
DACA was established by a Department of Homeland Security (DHS) memorandum issued in 2012, and is an immigration relief program which allows certain unauthorized immigrants who arrived in the United States as children to apply for a renewable two-year forbearance of their removal from the United States. In 2017, following a change in Presidential administration and public statements from the then-Attorney General of the United States advising that the program was unlawful, DHS issued a memorandum announcing the department’s decision to terminate the DACA program.
Several plaintiffs challenged the DHS decision, claiming that (1) because DHS’s memorandum had not adequately explained the department’s reasoning for determining DACA to be unlawful, it was arbitrary and capricious in violation of the APA; and (2) it infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause. District courts in California and the District of Columbia all ruled for the plaintiffs. The California district courts entered nationwide preliminary injunctions regarding the rescission. The D.C. district court deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, finding that DHS’s rescission decision was inadequately explained. The Court then stayed its order for 90 days to allow DHS to reissue a rescission memorandum, which more fully explained its conclusion that DACA was unlawful. Ultimately, the government sought and obtained certiorari review of all three cases before the Supreme Court.
The Supreme Court, in a 5-4 decision, found that DHS’s rescission of DACA was “arbitrary and capricious” in violation of the APA. Although all of the parties conceded that the Administration had the authority to rescind DACA, the Court found that DHS had failed to supply the requisite “reasoned analysis” for the exercise of administrative authority because it had failed to consider the policy at the heart of DACA—protection from deportation. The Court also refused to consider new justifications that had been asserted in response to the D.C. Circuit’s invitation. The Court held that whether an administrative action was proper under the APA had to be determined based on the reasons for the decision at the time it was made. Although an agency could elaborate on and explain its existing reasons at a later date, the Court held that the agency could not add new reasons. An agency could and often will issue a new decision based on new reasons, which may moot the existing challenge, but DHS had not done that here.
In considering the details of DHS’s decision, the Court cast doubt as to whether every aspect of DACA had been illegal and found that even if the provision of some of the benefits of DACA was illegal, DHS could have considered the strengths and weaknesses of other remedies, such as revoking certain of DACA recipients’ benefits while retaining their protection from deportation. Additionally, the Court found that DHS had not properly considered DACA recipients’ legitimate reliance on the existence of the program. Although DHS was not required to pursue accommodations other than rescission, it should have assessed their existence and the strength of any reliance interests, and weighed them against competing policy concerns. DHS’s failure to consider these issues was arbitrary and capricious, in violation of the APA.
DHS will now have the opportunity to “consider the problem anew.”