In June 2012, the Department of Homeland Security established the Deferred Action for Childhood Arrivals (DACA) policy, which authorizes the temporary deferred removal of “certain young people who were brought to this country as children.”  Over the past seven years, almost 800,000 people have obtained protections under DACA, which also allows qualified recipients to apply for work permits.  In September 2017, however, the Trump Administration announced that it was ending DACA, citing the policy’s supposed “legal and constitutional defects.”  Soon after, Respondents in these cases filed three separate federal lawsuits in California, Washington, D.C., and New York, arguing that the decision to terminate DACA violates, among other things, the Administrative Procedure Act (APA), a law that prohibits agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  In November 2018, after the three district courts each concluded that the decision to end DACA was unlawful, the Trump Administration asked the Supreme Court to review the cases, even before any court of appeals had ruled on the issues.  The Ninth Circuit subsequently upheld the lower court’s decision in one of the cases, and in June 2019, the Supreme Court agreed to hear all three cases together before the other two courts of appeals reached decisions.

CAC filed a friend-of-the-court brief on behalf of current members and bipartisan former members of Congress (172 in all), arguing that DACA was a lawful exercise of executive discretion and that the Trump Administration’s decision to terminate DACA on the ground that it was unlawful therefore violated the APA.  Our brief made two main points.  First, we argued that DACA was a valid exercise of executive authority.  Congress has long delegated significant discretion to the executive branch to implement the nation’s immigration laws and set enforcement priorities.  And the executive branch has repeatedly exercised this broad discretion by granting deferred action on both an ad hoc basis and by establishing categorical threshold criteria for deferral, and Congress has consistently affirmatively approved of this practice.  Accordingly, DACA was a lawful exercise of executive discretion.

Second, we explained that the Trump Administration’s decision to rescind DACA because it concluded that the policy was unlawful was itself in violation of the APA.  The Trump Administration made clear in 2017 that it was ending DACA because it believed that the policy had “legal and constitutional defects.”  It also asserted that a court would likely strike down DACA because the Fifth Circuit had enjoined another program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) in a case called Texas v. United States, and the Supreme Court had affirmed that decision by an equally divided vote.  But we explained that DACA is materially distinguishable from DAPA, and because DACA was a permissible—and, indeed, essential—exercise of the executive branch’s discretion in implementing the nation’s immigration laws, the Trump Administration violated the APA by rescinding DACA on the erroneous ground that the policy was unlawful.

The Supreme Court ruled that the Trump Administration’s decision to rescind DACA was arbitrary and capricious in violation of the APA.  After determining that it could review the Administration’s decision, the Court turned to the merits and concluded that the DACA rescission was unlawful because the Acting Secretary of Homeland Security did not consider certain important matters in deciding whether to terminate the policy.  Specifically, although the Administration had concluded that it was unlawful for DACA recipients to receive certain benefits, the Acting Secretary “offer[ed] no reason for terminating forbearance” as well.  In other words, the Acting Secretary failed to consider the possibility of retaining the part of DACA that allows individuals to apply for temporary deferred action, which is distinct from the other benefits DACA recipients may receive.  This critical shortcoming, paired with the Acting Secretary’s failure to address the “legitimate reliance” interests associated with DACA, led the Court to conclude that the Trump Administration’s decision to end the policy was “arbitrary and capricious in violation of the APA.”