The legal issue in Department of Homeland Security v. Regents of the University of California, an extraordinarily narrow decision preserving the Deferred Action for Childhood Arrivals program, is quite small: whether the Trump administration completed the proper paperwork when it decided to wind down the program.
In a 5-4 decision, the Court held that the administration’s paperwork was insufficient, keeping the program alive for now.
While the legal stakes in this case were tiny, the human stakes are enormous. DACA allows nearly 700,000 unauthorized immigrants, who came to the United States as children, to live and work in the United States. The Court’s decision in Regents means that these immigrants will not have their lives disrupted immediately.
And yet, while Regents means that these immigrants are not immediately at risk of deportation, they still must live under a cloud of uncertainty for at least as long as Donald Trump is president. As Chief Justice John Roberts notes in his majority opinion, “the dispute before the Court is not whether DHS may rescind DACA.” Indeed, “all parties agree that it may.”
Rather the dispute in Regents is “primarily about the procedure” the Department of Homeland Security followed when it tried to end DACA. Though Regents concludes that DHS did not follow the proper procedures, nothing prevents the department from trying again.
Federal agencies must explain their decisions to change existing policy
The basic rule underlying Regents is that, even when a federal agency has discretion to implement a particular policy, it typically may not do so until it has provided a reasoned explanation for why it chose that policy. Though a court may not “substitute its judgment for that of the agency,” the same court has a duty to assess whether the agency’s decision “was ‘based on a consideration of the relevant factors and whether there has been a clear error of judgment.’”
Regents concludes that the agency failed to consider two “relevant factors” before it rescinded DACA. Understanding those factors requires understanding some of the details of how DACA functions.
DACA grants a panoply of benefits to eligible immigrants. It’s not precisely accurate to say that DACA beneficiaries are immune to deportation, but the government effectively tells them that it will not exercise its power to remove them from the country. DACA beneficiaries receive authorization to work in the United States, and they are also eligible for Social Security and Medicare benefits (though few, if any, DACA beneficiaries currently receive Social Security or Medicare benefits because those beneficiaries are too young).
When the administration decided to rescind DACA, it claimed it was doing so because it believes the program is illegal. It based this conclusion on a decision by the United States Court of Appeals for the Fifth Circuit, which struck down an Obama administration attempt to expand DACA to immigrants who arrived in the US earlier and to create similar protections for unauthorized immigrants with a child who is a US citizen or green card holder. (The Supreme Court heard this case in 2016 and tied, allowing the Fifth Circuit decision to stand.)
But, as Roberts explains in Regents, the Fifth Circuit’s decision was limited to work authorization, Social Security, Medicare, and other, similar benefits received by DACA beneficiaries. The Fifth Circuit did not conclude that the federal government must deport people eligible for the programs it struck down.
That matters because the administration essentially adopted the reasoning of the Fifth Circuit as its own explanation for why it rescinded DACA. But the Fifth Circuit’s reasoning only undercuts some of DACA. It offers no window into why the administration believed that DACA beneficiaries should be subject to removal from the country.
“The defining feature of [DACA] is the decision to defer removal (and to notify the affected alien of that decision),” Roberts writes, “and the Fifth Circuit was careful to distinguish that forbearance component from eligibility for benefits.”
The Trump administration effectively said that it must wind down DACA to comply with the Fifth Circuit’s legal reasoning. But that explanation only partially justifies ending DACA. If the administration had decided solely to strip DACA beneficiaries of their work authorization and related benefits, perhaps mere reliance on the Fifth Circuit would have been enough. But the administration went further.
“Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only ‘disallow[ing]’ benefits,” according to Regents, Such a conclusion does “‘not cast doubt’ on the legality of forbearance or upon DHS’s original reasons for extending forbearance to childhood arrivals.”
Under Regents, the Trump administration could potentially issue a new memorandum tomorrow stating that it was ending DACA in its entirety. But that memo must provide an explicit explanation for every policy change entailed by ending DACA. That means that the memo must include some explanation for the decision to resume deportations of DACA beneficiaries. The Trump administration’s first attempt to explain why it was winding down DACA did not provide this explanation.
That first attempt was also flawed because it did not explain why the administration decided to impose new burdens on immigrants who’ve come to rely on DACA. “When an agency changes course, as DHS did here,” Roberts wrote, “it must ‘be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’’”
Those reliance interests are significant. “DACA recipients have ‘enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance’ on the DACA program.” Meanwhile, “excluding DACA recipients from the lawful labor force may … result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years.” And, “states and local governments could lose $1.25 billion in tax revenue each year.”
Again, the Trump administration could have acknowledged the costs of ending DACA and decided to end it anyway, but it cannot simply ignore these costs. It must explain why rescinding DACA is worth the price.
Regents, in other words, is the smallest possible victory for DACA beneficiaries. It does nothing to remove the Sword of Damocles from over the heads of these immigrants.
But it is a victory. At the very least, these beneficiaries are not in immediate danger.
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