Administrative Law and the DACA Decision | Opinion

In the recent DACA decision in DHS v. Regents of the University of California, the Supreme Court held that the Trump administration's rescission of the DREAM-er program was "arbitrary and capricious" under the Administrative Procedure Act (APA) and effectively required the administration to explain its reasoning better in a future attempt at rescission. There has been much commentary on the case, both before and after the decision. Several of my libertarian friends maintain that DACA is good policy, but that it was unconstitutional as implemented. I'm not convinced that DACA is bad policy or that it's unconstitutional; I think the constitutional question is tougher than many let on, and my views aren't fully thought out on that issue.

But I did think that DHS v. Regents was an easy administrative law case. On basic administrative law principles, the Supreme Court should have easily upheld the Trump administration's rescission. Here's why.

First, the Supreme Court should not have ignored Secretary Kirstjen Nielsen's memo, which contained a more elaborate explanation of the rescission than did her predecessor's memo. Her predecessor's memo simply stated that the attorney general, based on a prior Fifth Circuit Court of Appeals case, concluded that DACA was likely unconstitutional, and so the program would be rescinded. A district court remanded the question back to the agency for a fuller explanation, and Secretary Nielsen then elaborated: She refused to disturb the prior rescission because, even if the courts were to conclude DACA is lawful, there's still a serious question as to its lawfulness. Nielsen also then added some other policy arguments.

Chief Justice Roberts held that Nielsen's explanation was not a "new" agency action, and that it's a fundamental principle of administrative law (the famous case on point is called Chenery I) that courts review agency decisions based on the reasons given for them at the time. Hence, the chief justice said the Court had to ignore the Nielsen memo.

This is a shocking holding. What, exactly, does an agency do after remand from a district court for a further explanation? Well, exactly what Secretary Nielsen did. The implication of the chief's holding is that Secretary Nielsen's explanation would have been considered if she had said, "I hereby rescind DACA," instead of saying, "I decline to disturb the prior decisions to rescind DACA." That's a meaningless distinction.

Not only that, but, as Justice Kavanaugh explained, the APA defines a "rule" as any "statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy." Secretary Nielsen's memorandum was precisely such a "statement." It was a "rule" under the APA—indeed, it was the rule under review. The chief had no response to Justice Kavanaugh, on this point.

Second, when focusing solely on the predecessor memo on illegality, the Court held that the agency could still have considered the lawfulness of forbearance—withholding of removal—because the attorney general and Fifth Circuit had not concluded that forbearance was unlawful. They had only concluded that the granting of additional benefits to the DREAM-ers was unlawful.

But it's hard to see why an analysis of forbearance was required. After all, the Fifth Circuit explained that the decision not to deport any particular DREAM-er was still a matter of prosecutorial discretion. If forbearance is a matter of prosecutorial discretion, then refusing forbearance is also an act of prosecutorial discretion for which the executive need provide no explanation. The executive has never had to justify its enforcement priorities to any court; indeed, as Justice Alito explained, such discretion is unreviewable because it is "committed to agency discretion by law" under the APA.

Chief Justice John Roberts and Justice Ruth
Chief Justice John Roberts and Justice Ruth Bader Ginsburg JIM WATSON/AFP via Getty Images

Third, the majority should have addressed, in a manner of speaking, the question of DACA's legality. The principal dissent argued that DACA was unlawful because it rewrote a congressional statute and, in any event, did not go through the notice-and-comment process. Hence, the dissent claimed that it necessarily couldn't be arbitrary and capricious to rescind the policy. No amount of policy explanation is necessary when undoing an otherwise unlawful administrative action.

I'm not sure, however, that the Court had to determine the lawfulness of DACA, which might explain why Justice Kavanaugh did not join the principal dissent. I suspect it should have been enough that the executive believed this discretionary policy would be unconstitutional.

This point is tricky. The question is: Can it ever be arbitrary and capricious for the executive to refuse to undertake a discretionary decision that it thinks would be unconstitutional, if the courts disagree and think the policy would in fact be constitutional? If the statute compels agency action, and the executive thinks the statute is unconstitutional, whether or not the executive can refuse to enforce that law is a great unanswered question in constitutional law. But here, the statute did not compel agency action; it (hypothetically) merely allowed it. If the executive says, "we respectfully disagree with the courts, and believe the program would be unconstitutional," it's not clear that that is "arbitrary" under the APA. As the Court has said repeatedly, the purpose of "arbitrary and capricious" review is not for the Court to substitute its own policy judgment, but rather to ensure the agency shows it work and "considers the relevant factors." If the Court can't substitute its own policy judgment in evaluating a discretionary policy, why should it substitute its own constitutional judgment, so long as the executive's constitutional judgment is reasonable and made in good faith?

It's true enough that often the Trump administration has failed to dot its i's and cross its t's, and so several of its administrative decisions are stymied in court on administrative law grounds. But here, the administration did what it was supposed to do, and the Supreme Court still found a way to rule against it. The short-term results may be good (at least for the many out there who support a policy like DACA), but the long-term damage to administrative law principles may be serious. Unless, as Justice Thomas said last year about the U.S. Census citizenship question case, this administrative law case is for this time and place—and for this president—only.

Ilan Wurman is an incoming associate professor of law at the Sandra Day O'Connor College of Law at Arizona State University, where he teaches administrative law and constitutional law. He is the author of A Debt Against the Living: An Introduction to Originalism (Cambridge 2017).

The views expressed in this article are the writer's own.