The Supreme Court ruled Thursday that the Trump administration’s attempt to end the Deferred Action for Childhood Arrivals program is “arbitrary and capricious” and cannot proceed.
Chief Justice John Roberts, joined by the four liberal judges, ruled that Trump’s decision to rescind DACA violated the Administrative Procedure Act. DACA, which was instituted in 2012 by President Obama, allowed 700,000 illegal aliens who were brought to the United States as children to apply for a two-year deportation deferral. The deferral, which comes with work eligibility, may be renewed, but does not provide a path to citizenship.
“Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients,” the court wrote, declining to rule on the legality of DACA itself. “That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”
In dissent, Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, wrote that DACA was illegal from its inception.
“Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda,” Thomas wrote. “Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration un- less the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”
In his own dissent, Justice Brett Kavanaugh argued that the court was misapplying the APA’s “arbitrary-and-capricious standard” by focusing only on a memorandum issued in 2017 by then-acting DHS secretary Elaine Duke, rather than also analyzing a follow-up issued in 2018 by former DHS secretary Kirstjen Nielsen.
“The question under the APA’s deferential arbitrary-and-capricious standard is not whether we agree with the Department’s decision to rescind DACA. The question is whether the Nielsen Memorandum reasonably explained the decision to rescind DACA,” Kavanaugh explained. “Under ordinary application of the arbitrary-and-capricious standard, the Nielsen Memorandum—with its alternative and independent rationales and its discussion of reliance—would pass muster as an explanation for the Executive Branch’s action.”