The U.S. Supreme Court blocked the rescission of the Deferred Action for Childhood Arrivals program on June 18, 2020, finding that the Department of Homeland Security’s actions in retracting the immigration relief program were “arbitrary and capricious” and violated the Administrative Procedure Act (APA). However, the Court held that the actions of DHS did not violate the Fifth Amendment’s Equal Protection Clause. While the splintered decision allows the DACA program to continue for now, the decision left the door open to future challenges.

What is DACA?

Created in 2012 by the Obama administration, the DACA program shields from deportation undocumented children who were brought to the United States by their parents. Commonly called “Dreamers,” these people can apply to live, work, and receive some benefits in the United States for a renewable two-year period, though they do not have official legal immigration status or a path to citizenship. Though attempted over the years, Congressional efforts to legislate a program to provide more permanent and defined benefits have not materialized.

In 2017, acting Homeland Security Secretary Elaine Duke decided to wind down DACA, relying on the opinion of the U.S. Attorney General that said providing benefits to Dreamers was unlawful. Duke stated that DHS would no longer accept new applications, though it would allow existing DACA recipients whose grants would expire within the next six months to apply for a two-year renewal, while the grants to other DACA recipients would expire with no prospect for renewal.

Multiple groups challenged this decision, arguing (among other things) that the decision was arbitrary and capricious in violation of the APA and infringed the equal protection guarantee contained within the Fifth Amendment’s Due Process Clause. Two federal courts enjoined the administration from rescinding the program nationwide and allowed DACA recipients to renew their enrollments, but no new applicants were able to apply for the DACA benefit. Another federal court granted partial summary judgment to the challengers on their APA claim. However, that court gave DHS time to provide a fuller explanation of why it believed DACA was unlawful, which the new acting secretary did two months later. That new memorandum not only expanded on the original rationale but also offered two additional reasons for the rescission.

The government appealed the various district court decisions to the Second, Ninth, and D.C. Circuit Courts of Appeal and also filed for certiorari before the Supreme Court. The Court granted certiorari and consolidated the appeal.

The Supreme Court’s Decision

In a splintered 5-4 opinion written by Chief Justice Roberts, the Supreme Court considered three primary questions: whether the claims are reviewable; if so, whether the rescission of DACA was an arbitrary and capricious violation of the APA; and whether the plaintiffs stated an equal protection claim under the Fifth Amendment.

Chief Justice Roberts was joined by Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Elena Kagan, and joined in part by Justice Sonia Sotomayor, who also filed a separate opinion. Justice Clarence Thomas dissented, joined by Justice Samuel Alito and Justice Neil Gorsuch. Justice Alito and Justice Brett Kavanaugh also filed separate opinions concurring in part and dissenting in part.

As an initial matter, the Court rejected the government’s argument that the DACA program was a non-enforcement policy and thus that its rescission was within the agency’s discretion and not subject to judicial review. In rejecting that argument, the Court explained that both the creation and rescission of the DACA program are reviewable actions. The government also argued that two provisions of the Immigration and Nationality Act barred judicial review, but the Court rejected those arguments, too.

More substantively, the Court held that DHS’s decision to rescind DACA was arbitrary and capricious under the APA. The Court found that the DHS rescission memorandum failed to consider important aspects of the program and treated the Attorney General’s conclusion about the illegality of providing benefits to Dreamers as sufficient reason to revoke both the benefits and the forbearance, without any explanation. By failing to consider the option to retain the central aspect of the program—forbearance—the Court said that DHS did not engage in a “reasoned analysis.” Similarly, the Court noted that DHS failed to consider the reliance interests of the DACA recipients and weigh them against the competing policy concerns, which was also arbitrary and capricious.

In reaching that decision, the Court declined to rely on the additional information and rationale offered by DHS nine months after the rescission of the program, stating that an “agency must defend its actions based on the reasons it gave when it acted,” rather than using “post hoc rationalization.” However, the Court repeatedly stated that DHS does have the legal authority to rescind DACA.

Finally, the Court found that there was no equal protection claim because there was no plausible inference that the decision was unconstitutional or motivated by a racially discriminatory purpose.

Who are DACA recipients?

U.S. Citizenship and Immigration Services reported that there were about 652,880 active DACA recipients as of September 30, 2019. As of 2018, the Center for Migration Studies reported that the following numbers of DACA recipients work in essential industries across the country:

• 43,500 DACA recipients work in the health care and social assistance industries, including 10,300 in hospitals and 2,000 in nursing care facilities.

• 21,100 work in transportation and warehousing.

• 32,800 work in retail trade, including 12,400 in supermarkets, 3,200 in pharmacies, and 5,200 in merchandise stores.

• 14,500 work in the manufacturing sector, which includes food and beverage, pharmaceutical, cleaning products, and medical equipment manufacturing.

• 13,300 work in support and waste management services, including 10,100 who work in building services and 1,000 in waste management; and

• 76,600 DACA recipients work in restaurants and other food services.

What does this decision mean for DACA recipients and their employers?

The Supreme Court’s decision means that DACA recipients across the country can continue to renew their work authorizations under the program and maintain temporary protection from deportation. However, the future of the DACA program remains uncertain. While the Supreme Court’s decision is a temporary victory for DACA recipients and the supporters of the policy, the Court made clear that the decision was not based on whether DACA is a “sound policy” or whether DHS has the authority to rescind DACA, but rather whether the DHS’s actions met the procedural requirements and provided a reasonable basis for rescission. Absent Congressional action, DHS could attempt to rescind the program again in the future.

We will continue to follow developments with the DACA program and keep you up to date.