By Lisa Soronen
In Department of Homeland Security v. Regents of the University of California the Supreme Court will decide whether the Department of Homeland Security’s (DHS) decision to end the Deferred Action for Childhood Arrivals (DACA) program is judicially reviewable and lawful. Three lower courts have concluded ending the policy is both reviewable and likely unlawful.
DACA was established through a DHS Memorandum during the Barack Obama;s presidency. The program allowed undocumented persons who arrived in the United States before age 16 and have lived here since June 15, 2007, to stay, work, and go to school in the United States without facing the risk of deportation for two years with renewals available.
DHS rescinded DACA in September 2017 after receiving a letter from the Attorney General stating the program was unconstitutional and created “without proper statutory authority.”
The United States argues that a court can’t review DHS’s decision to rescind DACA because the federal Administrative Procedures Act (APA) precludes review of agency actions “committed to agency discretion by law.” According to the United States, DHS’s decision to discontinue the DACA policy “falls comfortably within the types of agency decisions that traditionally have been understood as ‘committed to agency discretion’”—particularly because this decision arose in the immigration context.
While all lower courts considering the rescinding of DACA concluded the decision is reviewable, the District Court for the District of Columbia took the United State’s argument head on. It held that the rescission of DACA was not “committed to agency discretion by law,” because this provision of the APA does not apply to an agency’s rescission of “a general enforcement policy predicated on [a] legal determination that the program was invalid.”
The APA prevents federal agencies from taking actions which are not “otherwise in accordance with law.” Regarding the merits, the Ninth Circuit noted the Attorney General’s “primary bases for concluding that DACA was illegal were that the program was ‘effectuated . . . without proper statutory authority’ and that it amounted to ‘an unconstitutional exercise of authority.’”
While the United States dropped its constitutionality argument before the Ninth Circuit it argued DACA was unlawful because it is a legislative rule which should have been promulgated through notice-and-comment rulemaking and is “substantively inconsistent” with the Immigration and Nationality Act (INA). The Ninth Circuit disagreed holding that notice-and-comment procedures are not required where an agency pronouncement is a “general statement of policy.” Regarding the INA, the court notes it doesn’t define “how immigration status may be derived by undocumented persons who arrived in the United States as children.”
Numerous states and local governments have participated in the DACA litigation as parties and amici. See NCSL's information page on DACA.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.