By Atty. Emmanuel S. Tipon
“Judges are like umpires. Umpires don’t make the rules; they apply them. . . . . it’s my job to call balls and strikes, and not to pitch or bat.”
– John G. Roberts’s (now Chief Justice) Opening Statement at his confirmation hearing before the Senate.
“We actually won DACA,” exclaimed President Trump during the Trump rally in Tulsa, Oklahoma on June 20, “there’s just some additional paperwork we have to do.”
President Trump is right. The Supreme Court recognized that the Order issued by President Obama’s Department of Homeland Security (DHS) in 2012 creating the Deferred Action for Childhood Arrivals (DACA) program was illegal and that all the parties agreed that President Trump may rescind DACA. The dispute is about the procedure in rescinding it. The Supreme Court remanded the case for the Trump Administration to elaborate on its reason for rescinding Obama’s illegal order beyond saying that it is illegal. Department of Homeland Security v. Regents of University of California, No. 18-587, June 18, 2020.
What is DACA?
DACA recipients were brought to this country as children before age 16 and entered without inspection or entered with a visa but overstayed the period of their authorized stay. The Immigration and Nationality Act (INA) provides that aliens in both classes are removable. But DACA granted its recipients deferred action (forbearance) whereby DHS would de¬cline to institute removal proceedings, terminate re¬moval proceedings, or decline to institute a final order of removal. In addition DAPA recipients would be given federal benefits like work authorization and for this purpose would be deemed lawfully present. Thus, DACA created a new exception to the statutes governing removability and conferred lawful presence on an entire class of aliens. To lawfully implement such changes, DHS needed a grant of authority from Congress, but there was none.
Prior to DACA, Congress tried but failed several times to enact the so-called DREAM Act – Development, Relief, and Education for Alien Minors. Hence DACA recipients are sometimes called “Dreamers”. Obama was urged by illegal alien advocates to enact the DREAM Act by Executive Order but he said he could not do it. He later caved in and approved DACA in 2012 signed by his DHS Secretary thereby avoiding putting his fingerprints on the illegal act. The short circuiting of the legislative process allowed more than 700,000 illegal alien children to avail of DACA.
In 2014, DHS created a similar program – Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). It would have given about 4.3 million parents of U.S. citizens and LPR’s the same benefits as DACA beneficiaries
Texas and 25 other states sued in district court challenging DACA and DAPA. The court issued a nationwide preliminary injunction barring the implementation of DACA and DAPA. The Fifth Circuit of Appeals affirmed the injunction, holding that DACA and DAPA violated the Immigration and Nationality Act (INA) which defines eligibility for benefits. The U.S. Supreme Court affirmed by an equally divided court. The case went back to the district court where litigation continued.
In June 2017, the Trump administration revoked DAPA. In September 2017 the DHS Secretary terminated DACA. DHS would no longer accept new applications. DACA recipients whose benefits were expiring within six months could apply for a two-year renewal. Benefits of other DACA recipients would expire on their own terms.
Certain groups challenged the DHS decision to rescind DACA claiming that it was arbitrary and capricious in violation of the Administrative Procedure Act (APA) and infringed upon the Fifth Amendment’s equal protection clause.
The challengers won in the District Courts in California (Regents, No. 18–587), New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18– 588). The DHS appealed to the Second, Ninth, and D. C. Circuits, respectively. While the ap¬peals were pending, the DHS filed three petitions for certiorari with the Supreme Court.
DACA can be rescinded by Trump
The Supreme Court split 5-4. The majority, through Chief Justice Roberts, said that the DHS’ decision to rescind DACA was subject to judicial review pursuant to the APA’s “basic presumption of judicial review” of agency action, and that the parties agreed that the Trump administration may rescind DACA, but the dispute is about the procedure that DHS followed in doing so.
The majority pointed out that DACA has two aspects – (1) granting eligibility for certain benefits like work authorization and (2) forbearance against removal.
The majority said that the DHS’s decision to rescind DACA was “arbitrary and capricious” because while the DHS Secretary gave a reason for terminating the benefits aspect of DACA she did not give a reason for terminating the forbearance aspect.
In revoking DACA, the DHS Secretary reasoned that the Fifth Circuit had concluded that DAPA was unlawful because it conferred benefits in violation of the INA and the Attorney General had concluded that DACA was unlawful for the same reason.
The majority acknowledged that the DHS Secretary was bound by the Attorney General’s determination that DACA is illegal because it conferred benefits. But the Attorney General did not address the forbearance aspect. Thus the forbearance aspect remained within the discretion of the Secretary who was responsible for establishing national immigration enforcement policies but she offered no reason for terminating forbearance. The DHS failed to consider whether to retain forbearance and what if anything should be done about the hardship to DACA recipients. Therefore, the majority concluded, the appropriate recourse is to remand to DHS so that it may consider the problem anew.
As for the equal protection issue, the court said that the complainants failed to establish a plausible inference that the DACA rescission was motivated by animus in violation of the equal protection guarantee of the Fifth Amendment.
DACA unlawful; Problem is for Congress to solve
Justice Thomas, the principal dissenter, pointed out that DHS created DACA during the Obama administration “without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception.” He said: “Today’s decision must be recognized for what it is: an ef¬fort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch.
COMMENT: I took my oath of admission to practice in the U.S. Supreme Court before Chief Justice Roberts. He is a likable person. I was impressed by his declaration at his confirmation hearing that as an umpire “It’s my job to call balls and strikes.” As a baseball fan, I sometimes hear fans shouting “rotten umpire” when the umpire calls a strike a ball. However, I have not done so and I will not do it now. If the Obama DACA program is illegal, why does the majority require the Trump administration to elaborate on its reason for revoking it beyond saying that it is illegal? If the Obama DACA program did not comply with the Administrative Procedure Act before it was implemented, why does the majority require the Trump administration to comply with the Administrative Procedure Act to revoke Obama’s illegal DACA program? As pointed out by Justice Thomas: “The decision to rescind an unlawful agency action is per se law¬ful. No additional policy justifications or considerations are necessary. And, the majority’s contrary holding—that an agency is not only permitted, but required, to continue an ultra vires action— has no basis in law.”
ATTY. TIPON has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He is co-author of the best-seller “Winning by Knowing Your Election Laws” published by Rex Publishing. He writes columns for Filipino-American newspapers and co-hosts “The Tipon Report,” Honolulu’s most witty and useful radio show. He practices law in Honolulu, Hawaii, focusing on immigration and other federal laws. Tel. 808-225-2645. E-mail: firstname.lastname@example.org