A District of Columbia federal court judge, an appointee of President George W. Bush, held on Tuesday that the rescission of DACA (Deferred Action for Childhood Arrivals) “was arbitrary and capricious because the Department [of Homeland Security] failed adequately to explain its conclusion that the program was unlawful. Neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program.” DACA was ordered to be reinstated, and DHS must “accept and process new as well as renewal DACA applications.”
The court did not buy the government’s argument that the case could not be reviewed under the Administrative Procedure Act because DACA was withdrawn simply due to fear of litigation by a group of states. The court found: “DACA’s rescission was a general enforcement policy predicated on DHS’s legal determination that the program was invalid when it was adopted. And although the government has sought to cast the Department’s assessment of ‘litigation risk’ as a discretionary justification …. that justification is insufficiently independent from the agency’s evaluation of DACA’s legality.”
Moving to the merits, the court noted: “The APA provides that a court ‘shall … hold unlawful and set aside agency action … found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ … To satisfy this standard, an agency must ‘examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.'” Quite simply, the administration failed to make a bare showing to justify its rescission. Pointing the finger directly at Attorney General Jeff Sessions, the court found that Sessions’s statement as to the reasons for repealing DACA were ” insufficient to satisfy the Department’s obligation to explain its departure from its prior stated view that DACA was lawful.”
The court went on to chide Sessions: “The Department’s failure to give an adequate explanation of its legal judgment was particularly egregious here in light of the reliance interests involved. … The Rescission Memo made no mention of the fact that DACA had been in place for five years and had engendered the reliance of hundreds of thousands of beneficiaries, many of whom had structured their education, employment, and other life activities on the assumption that they would be able to renew their DACA benefits. The Supreme Court has set aside changes in agency policy for failure to consider reliance interests that pale in comparison to the ones at stake here.”
The court left open the possibility that “the Department could articulate a valid reason for DACA’s rescission. For example, it could offer a coherent legal argument that DACA conflicts with the [Immigration and Nationality Act] or violates the President’s duty to ‘take Care that the Laws be faithfully executed,’ ” so it held its order in abeyance to give the administration time to provide “a fuller explanation for the determination that the program lacks statutory and constitutional authority. Should the Department fail to issue such a memorandum within 90 days, however, the Rescission Memo will be vacated in its entirety, and the original DACA program will be restored in full. This means, among other things, that the agency will be required to resume accepting initial DACA applications and applications for advanced parole.”
Immigration advocates were understandably elated. In a press release, the NAACP explained: “Decisions from other federal courts have mandated that DHS temporarily continue the DACA program as to current enrollees pending further action in those cases. Judge [John D.] Bates’s decision represents the first time that any court has vacated DHS’s ‘Rescission Memorandum,’ thus potentially allowing new enrollees to participate in the program for the first time since DACA was terminated.”
The National Immigration Law Center praised the decision but tweeted, “What remains clear is the need for Congress to enact a permanent solution to protect dreamers and end the uncertainty governing the lives of immigrant youth, their families and communities.” That, unfortunately for “dreamers,” almost certainly will not happen before the midterm elections.
The ruling on APA grounds is particularly noteworthy. This statute’s entire purpose is to assure that a president does not act capriciously to upset people’s expectations of a law without going through the proper process, including publishing a proposed new rule, allowing for a comment period, considering the comments and issuing a new rule. (In some cases, “the agency must engage in trial-like procedures,” to issue a new rule.) This is the “rule of law” in its truest sense — a president is not a monarch who can promulgate and repeal rules on a whim. He must follow certain procedures designed to slow or stop ill-conceived rules and to provide public input. If a president does not comply, a court will enforce that process.
What seems hyper-technical is in fact a critical protection against arbitrary, capricious and secretive decision-making. In other words, the rule of law — exemplified in the APA — is designed to stop chief executives like President Trump from causing havoc in people’s lives. And that protection is there to benefit all Americans — even ones brought here illegally through no fault of their own.