Today, the Supreme Court issued a 5–4 ruling that the Trump administration’s rescission of the DACA program was unlawful. The opinion of the Court was delivered by Roberts, with Ginsburg, Breyer, and Kagan joining in full, and Sotomayor concurring as to the result. You can read the ruling here.
Last year, I correctly predicted how the justices would vote. Now it’s time to give some further comments about the ruling.
First, the Court did not rule on whether DACA is actually legal. In fact, the Court held that Attorney General’s finding that DACA is illegal provides a justification for rescinding the associated benefits such as work authorization (but not the grant of deferred action itself). However, DHS still must consider reliance interests
before promulgating the rescission of benefits. DHS also did not provide adequate justification for the rescission of the entire program, as there had not been a finding of illegality of the deferred action itself.
Second, the Court did not rule that DACA rescission needs to go through the notice-and-comment rulemaking procedure. In fact, it noted that such claims were already raised in the lower courts and rejected there. For example, the 9th circuit concluded in DHS v. Regents of UC that both the creation of DACA, and its rescission, are general statements of policy
and are thus exempt from notice-and-comment. This fact is very important, because notice-and-comment requires at least a 30 day period for the public to submit comments, and the agency is required to review every single comment and address the substantive subject matter of those comments in its rulemaking. In practice, this is usually done by categorizing the comments according to their key points and responding to each point identified, as obviously, it would not be practical to provide a response to each comment separately. Still, given that a hypothetical notice of proposed rulemaking regarding DACA would likely attract hundreds of thousands of public comments, it would take DHS several months to review and categorize all the comments. Because the Court ruled that this procedure is not required, DHS could potentially move much faster.
Third, the Court also did not specify the detailed requirements that a rescission would need to satisfy in order to be lawful. It notes that DHS should consider reliance interests in determining how the wind-down should be performed—for example, in considering the reliance interests, DHS could have decided on a longer transition period or provided for case-by-case discretion. But after balancing all relevant considerations, DHS is not required to arrive at any particular conclusion.
Fourth, as the Court did not rule today on whether DACA is legal or not, I believe that if an entity had standing to challenge DACA itself, arguing that it’s unconstitutional for the executive branch to grant deferred action in such a form and that the plaintiff were injured by this action, then there’s still some possibility that the Court could make such a ruling in the future. The kind of entity with the strongest claim to standing would be a State, as in the United States v. Texas case regarding DAPA and the DACA expansion. I don’t think it’s likely that a State will actually mount such a challenge against DACA, because even a majority of Republicans support DACA now. But there could potentially be other entities with standing, such as workers alleging that DACA unlawfully increases competition for jobs (cf. the Save Jobs USA lawsuit regarding the H-4 EAD program).
Where does this leave us? Basically, it means DHS could issue a new memo rescinding DACA, but they must provide sufficient justifications for both the rescission of the deferred action itself and the associated benefits. DHS could potentially act quickly to issue a new memo, in which it makes a finding, based on law, that it lacks the authority to grant deferred action, and, after considering reliance interests and other relevant considerations, determines that DHS will end DACA. But what form would that take?
DHS could move to immediately end the DACA program and revoke all existing EADs granted under it, rendering all current DACA beneficiaries potentially subject to immediate deportation and making it illegal for their current employers to keep them on the payroll.
Or, DHS could announce that they will stop accepting new applications and renewals after some transition period (maybe 6 months, maybe more, maybe less). In that case, some grants of deferred action would begin to expire within 6 months (as one can renew up to 6 months in advance of expiration), which gets us almost to the end of Trump’s term. In that case, if Biden wins the election in November, the damage done to DACA will have been minimal.
Between the two options, I think the latter is much more likely. This is for two reasons. First, the former option would make the administration more vulnerable to further legal challenges based on allegations that the rationale provided was not sufficient to justify such extreme action (notwithstanding the fact that the administration might ultimately prevail in that case). Second, by taking the latter option, Trump can emphasize that he’s doing as much as he can to fulfill his promise of enforcing the immigration laws, but his efforts will prove futile unless he is elected to a second term. This would be a smart political strategy for him.
In conclusion, if you support DACA, then be sure to do your part in getting Biden elected in November and flipping the Senate. (While non-citizens cannot vote and cannot legally spend money on or donate for the purpose of electioneering communications, we can still do our part in raising awareness and advocating for what we believe in.) If Trump is re-elected, then not only does he have more than enough time to end DACA legally, but he could also potentially replace Justice Ginsburg, without whom today’s ruling would not have been possible. If Trump loses but the GOP manages to keep 51 seats in the Senate, then Mitch McConnell will block any efforts at immigration reform and the future of DACA recipients will remain uncertain. There would also be a small risk that SCOTUS would revisit DACA and end it for good, over the objections of the Biden administration. In that case, the administration could still do a lot to delay deportations, but would be enjoined from issuing work permits, which would severely limit the options for DACA people to support themselves.
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