DACA is here to stay… for now

Today, the Supreme Court rejected the Trump Administration’s decision to terminate Deferred Action for Childhood Arrivals (DACA), finding that the move was a violation of the Administrative Procedure Act (APA) because it was arbitrary and capricious. (This may sound familiar – it’s the same problem the Administration has faced in the litigation surrounding Medicaid work requirements.) In this case, DHS failed to consider two important aspects of DACA before moving to terminate it. Before going over the Supreme Court’s ruling in more detail, let’s turn back in time to recall where we’ve been on this issue.

Eight years ago, in 2012, the Obama Administration announced a new program – DACA. DACA allows certain undocumented youth and young adults, sometimes called DREAMers, to work and continue their education in the US without fear of deportation. About 690,000 young immigrants participated in the program. DACA has enjoyed broad, bipartisan support with the general public and elected officials. And DREAMers have gone on to get college degrees, start businesses, and grow their own families.

Despite the broad support for DACA, it has not been an easy road for DREAMers. DACA grantees are ineligible for full-scope Medicaid and CHIP, and even though most noncitizens with deferred action status are eligible to enroll in Marketplace coverage, DACA grantees are barred from purchasing these private plans even at full cost. When it comes to health coverage, DACA grantees are treated the same as undocumented immigrants with access to limited, emergency Medicaid or separate, state-funded programs only. (DACA grantees would eventually be eligible for Medicare and Social Security, but not until attaining age 65 or meeting one of the other eligibility requirements for the programs.)

DACA grantees also continue to live in fear that they may be separated from their parents and other family members because in 2016, the Supreme Court blocked an expansion of the DACA program to include more DREAMers and a new program, the Deferred Action for Parents of Americans and Legal Permanent Residents, or DAPA, that would have given some parents the ability to live and work in the US without fear of deportation (see Texas v. United States, 2015). Thus, even with DACA, immigrant children and youth and their families continued to live in limbo, waiting for comprehensive immigration reform.

When the Trump Administration took over in 2017, anti-immigrant rhetoric that characterized the Trump campaign became anti-immigrant policy. Less than a year into the Trump Administration, the Department of Homeland Security (DHS) issued a memorandum terminating DACA. Several lawsuits were filed immediately, challenging the decision to terminate DACA on two grounds: (1) as a violation of the Administrative Procedure Act (APA) and (2) as a violation of equal protection under the Fifth Amendment’s Due Process Clause (equal protection).

As a result of these lawsuits and decisions by district courts in California, New York and D.C., DACA grantees have been able to continue to go to school, get driver’s licenses, and work, but always with a looming sense of uncertainty.

Today’s ruling gives DACA grantees the certainty they were looking for – for now. But the Court does not conclude that DHS is unable to rescind DACA. In fact, the majority opinion written by Chief Justice Roberts says: “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.” (See page 9.) And it is with the procedure that Court finds fault.

When DHS decided to terminate DACA, it did so in reliance on a memorandum from then Attorney General Sessions that said DACA has “the same legal and constitutional defects” as DAPA. The Attorney General’s memo was based on the aforementioned Texas v. United States case. In that case, the Fifth Circuit distinguished the two key components of DAPA – (1) forbearance or deferring removal and (2) giving benefits – and found that DAPA violated the Immigration and Nationality Act because it extended eligibility for benefits to immigrants who would otherwise be ineligible. The Fifth Circuit did not weigh in on the legality of deferred removal. (The Supreme Court affirmed the Fifth Circuit ruling by a 4-4 vote, meaning it did not issue an opinion of its own.)

Thus, when DHS acted on the Attorney General’s memo, it was still within the purview of the Acting Secretary to maintain the forbearance policy. Instead, DHS treated the Attorney General’s memo as sufficient to rescind both benefits and forbearance, without explanation. By failing to consider such an important aspect of the program, the decision to terminate it was arbitrary and capricious, violating the APA.

The Supreme Court does not stop there though – the Court finds that DHS also violated the APA by failing to consider reliance interests. In this case, a reliance interest could be how DACA grantees structured their education, careers, families, and other life activities on the assumption that the program would continue. Under prior Supreme Court precedent, agencies must consider reliance interests when changing course, as DHS did after the change in Administration. The Supreme Court does not say whether DACA grantees have a reliance interest, but rather that DHS is required to “assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.” (See page 26.) In failing to do so, the decision to terminate was arbitrary and capricious, violating the APA.

Thus, because DHS failed to consider key issues – whether to retain forbearance and what to do about the hardship to current DACA grantees – the decision to rescind DACA is unlawful and DACA grantees can breathe a big sigh of relief.

The majority opinion does not find that the decision to rescind DACA also violated the Fifth Amendment because they find that the plaintiffs failed to establish a plausible equal protection claim. Justice Sotomayor is the lone dissenting voice on this point. Justice Sotomayor writes that at this stage in the litigation, the plaintiffs only need to show the possibility that the Administration acted with discriminatory animus, which she finds they did (as did the lower courts).

Because the Court finds fault merely with the procedures by which DHS decided to terminate DACA, DHS could try again. Doing so would take some time though, and there may be a new Administration in just 6 months. A new Administration could reinstate DACA immediately, while a new Congress tackles comprehensive immigration reform. I’m taking a tip from the DREAMers and daring to dream.

Kelly Whitener is an Associate Professor of the Practice at the Georgetown University McCourt School of Public Policy’s Center for Children and Families.