Until the Supreme Court’s June 18 decision in Dep’t of Homeland Security v. Regents of the University of California (Regents) there has been little confidence among immigrants and their advocates that any case challenging an action by the Trump Administration directed at non-citizens stood much chance of resulting in a positive outcome. The 5-4 decision authored by Justice Roberts either indicates that the Court is changing or is an aberration for the present Court. The decision sets aside the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (“DACA”) program – holding that the rescission was an arbitrary and capricious violation of the Administrative Procedure Act (“APA”) in that it failed to take into consideration the adverse impact on the DACA recipients (referred to as “Dreamers”) and their communities. Although the complaints questioned the conclusion that the initial DACA program created by President Obama was without legal authority, the Court never reached this issue. While the decision comes as a welcome reprieve to Dreamers and allows them, at least in the short term, to continue to enjoy their current status, one should be cautious about what to extrapolate from the decision.
The decision emphasizes the importance of complying with procedural requirements. While the majority decision reflects awareness of the large number of Dreamers and notes how they have become integrated into their communities, it does not immunize DACA from all future attacks. In this case, the justifications of rescission provided by the Trump Administration were largely grounded in its political rhetoric that DACA was without legal authority. Also, as noted, the Trump Administration failed to consider the consequences and impacts of its rescission, which numerous amicus briefs explored in great depth. Thus, the majority held, the rescission decision was arbitrary and capricious. As the Court held, “[w]e do not decide whether DACA or its rescission are sound policies . . . [w]e address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”
Though DACA is not safe, there is reason to believe Regents could have a broad and positive impact, despite its relatively narrow framing. Since his inauguration in January 2017, the Administration has issued a series of executive orders, directives, policy initiatives, interpretations, and regulations which have reversed nearly every Obama-era immigration effort, and have dismantled benefits and rights written into immigration law going back decades. In addition to the infamous travel ban, the Administration has by executive action re-written asylum law, the rules of who may be admitted to this country as well as how permanent residents can become citizens. Many of these efforts share the same characteristics as the DACA rescission and one can only speculate how the Court will deal with them. In countless lower court decisions, federal judges have found the Trump Administration acting in violation of the APA and other statutes, and in one series of cases to have acted with racial animus. Here I am referring to Trump’s use of the term “shithole country” to describe countries in Africa and including Haiti, just prior to the Administration’s revocation of Temporary Protected Status for nationals of those very same countries. One hopes that the Court will apply equivalent scrutiny to these actions as it did in this case and will force the Administration to go back to the drawing board and bring its actions into compliance with the requirements of the APA.
In the end, Regents may say more about administrative rather than immigration law and how agencies make their decision. Certainly this is a good thing, and can be viewed as a milestone in the Court’s interaction with this Administration on its immigration decisions.
Professor of Law Richard Boswell has written extensively in the field of immigration law and is the author of 10 books and more than 15 articles. His books include Immigration Law & Procedure: Cases and Materials (4th ed. 2010), Refugee Law & Policy: a Comparative and International Approach (4th Ed. 2011) (coauthored with Karen Musalo and Jennifer Moore) and Essentials of Immigration Law (3rd ed. 2012). He has testified on numerous occasions before congressional committees and is a frequent lecturer on immigration law both nationally and internationally.