Yesterday, June 18th, the United States Supreme Court held that the Trump Administration’s attempt to rescind the Deferred Action for Childhood Arrivals (DACA) program through administrative action violated the Administrative Procedures Act (APA). DACA was created by the Obama Administration through a Department of Homeland Security (DHS) memorandum in 2012. The program allows certain foreign nationals who arrived in the United States before the age of 16 and meet certain criteria protection from deportation, a means to obtain work authorization, and eligibility for certain public benefits. The program does not provide a path towards lawful permanent residency, or legal status per se.
Shortly after Trump was elected, Attorney General Jeff Sessions determined that the DACA program was beyond the authority of the Obama Administration to create, and violated the separation of powers clause of the Constitution. He instructed the then-acting Director of Homeland Security to issue a memorandum “winding down” the program. In yesterday’s 5-to-4 decision, Chief Justice Roberts sided with Justices Ginsburg, Breyer, Sotomayer, and Kagan in finding that the DHS memo rescinding DACA did not adequately demonstrate that it had considered all of the implications of its decision, and was therefore arbitrary and capricious, in violation of the APA. As stated in Robert’s opinion: “[T]he agency failed to consider the conspicuous issues of whether to retain forbearance [from deportation] and what if anything to do about the hardship to DACA recipients.” The Court remanded the matter to the DHS, which will presumably issue a new memorandum taking into consideration these issues.
Justice Thomas, joined by Justices Gorusch and Alioto, issued a dissenting opinion stating, in essence, that the creation of the DACA program was “illegal” on its face, and because it was illegal, the Trump Administration was not required to consider the hardship to DACA recipients or provide any justification whatsoever for rescinding it.
Justice Kavanaugh offered a separate dissent, on a more nuanced basis. While not taking a position as to whether the Obama Administration was within its authority in creating DACA, he disagreed with the majority on the technical issue as to whether the Court should have looked at subsequent agency memoranda from the DHS that more fully considered the “conspicuous issues” identified by the majority. In his view, remanding to the DHS would result in lifting form over substance, and merely protract the litigation.
What This Means for DACA Recipients and Their Employers
Yesterday’s ruling is good news for the over 700,000 persons who are currently living and working in the United States pursuant to DACA. The uncertain future of this program has loomed over DACA recipients since Trump was elected president in 2016. A major component of the President’s campaign platform focused on curtailing all forms of immigration, and DACA in particular. The decision is also good news for the many employers that rely on DACA recipients who serve in critical positions.
The Court’s ruling does not, however, assure the long-term viability of the DACA program. The ruling was based solely on what the Court found to be a procedural violation of the APA. The Trump Administration can remedy this violation by simply issuing a new memorandum addressing the “conspicuous issues” identified by the Court. Unfortunately, as Justice Kavanaugh states in his dissent, the ruling will not “eliminate the broader uncertainty over the status of the DACA recipients.”