February 26, 2020

Department of Homeland Security v. Regents of the University of California | Trump v. NAACP | McAleenan v. Vidal


Did the Government Violate Federal Law When It Rescinded the Deferred Action for Childhood Arrivals Program?


In 2012, Secretary of Homeland Security Janet Napolitano announced the Deferred Action for Childhood Arrivals program, or DACA. Under DACA, the government granted a temporary, but renewable, reprieve from deportation to young people who were present in the United States without authorization and who met specified criteria. In 2017, the Trump Administration rescinded DACA. The government contended that it lacked authority to maintain DACA, because the program was illegal in the first place.

Department of Homeland Security v. Regents of the University of California
Docket No. 18-587

Trump v. NAACP
Docket No. 18-588

McAleenan v. Vidal
Docket No. 18-589

Argument Date: November 12, 2019
From: The Ninth Circuit, the D.C. Circuit, and the Second Circuit
by Steven D. Schwinn
University of Illinois Chicago John Marshall Law School, Chicago, IL


The Administrative Procedure Act (APA) sets standards for agency actions, which are generally enforceable in the courts. As relevant here, agency actions cannot be arbitrary and capricious, and courts can vacate an agency action that violates this standard. But at the same time, some agency actions are not reviewable in the courts. As relevant here, the APA does not authorize judicial review of decisions that are “committed to agency discretion by law.”


  1. Can the courts review the government’s rescission of the Deferred Action for Childhood Arrivals (DACA) program? 
  2. Was the government’s decision to rescind DACA arbitrary and capricious in violation of the APA?


On June 15, 2012, Secretary of Homeland Security Janet Napolitano announced the DACA program. As its name suggests, DACA was designed to provide temporary deferral from deportation for young people who were brought to the United States without authorization (and who were therefore unlawfully present in the United States), but who met certain specified criteria. Napolitano explained that many of these young people thought of the United States as their only home, have contributed to the United States in “significant ways,” and, because they were brought here as children, “lacked intent to violate the law.” (You can find Napolitano’s original DACA memo, entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” here: https://www.dhs.gov/xlibrary/ assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.)

Under DACA, young noncitizens could qualify for a grant of deferral if they came to the United States under the age of 16; continuously resided in the United States for at least five years up to and including June 15, 2012; were in school, had graduated high school, or were honorably discharged veterans of the Coast Guard or Armed Services; had not been convicted of a felony offense, a significant misdemeanor, or multiple misdemeanors; and were not above the age of 30 on June 15, 2012.

A DACA applicant had to submit extensive personal and biometric information to DHS, along with fees totaling nearly $500. If an applicant’s biographical and biometrical checks came back clean, DHS officials reviewed each application for approval on a case-by-case basis. 

If approved, a DACA recipient received a provisional grant of forbearance from removal for a period of two years, subject to renewal. A DACA recipient also received authorization to work lawfully in the United States. But the DACA program did not grant a recipient a lawful immigration status, and immigration officials retained the authority to commence removal proceedings against a recipient at any time.

Napolitano justified the program as an exercise of “prosecutorial discretion,” or the authority of executive branch officers to decide not to enforce the law in certain cases out of a sense of fairness. This kind of discretion has a long history in our immigration system and is a “principal feature of the removal system.” Arizona v. United States, 567 U.S. 387 (2012). As the states explain in their merits brief in this case, “For nearly 60 years, the Executive Branch has operated dozens of class-based discretionary relief policies, including several that involved deferred action.” Federal regulations reflect this practice by providing for work authorization and other limited benefits for recipients of deferred action. And the Office of Legal Counsel at the Department of Justice opined that DACA would be legally sound so long as immigration officials “retained discretion to evaluate [its] application on an individualized basis.”

In 2014, DHS expanded the DACA program to include additional youth and certain parents of citizens or lawful permanent residents. Under the 2014 program, called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), parents of citizens or lawful permanent residents (but not parents of DACA recipients) qualified for deferred action if they had been in the United States since 2010 and were not immigration enforcement priorities. (You can find the original DAPA memo here: https://www.dhs.gov/sites/default/files/publications/14_1120_ memo_deferred_action_2.pdf.)

Before DAPA took effect, however, Texas and other states challenged its legality. A federal district court granted a nationwide preliminary injunction halting the program; the United States Court of Appeals for the Fifth Circuit affirmed; and the Supreme Court affirmed the Fifth Circuit by an equally divided vote. United States v. Texas, 136 S. Ct. 2271 (2016). The Trump Administration later rescinded DAPA, although the litigation continued. (The earlier rulings were only on the preliminary injunction, not the final merits.)

Then, in September 2017, the Trump Administration also rescinded DACA. On September 4, the attorney general wrote then acting secretary of Homeland Security Elaine Duke that DHS “should rescind” DACA because it was “unconstitutional” and “effectuated…without proper statutory authority.” He also wrote that DACA “has the same legal and constitutional defects that the courts recognized as to DAPA.” On September 5, Duke rescinded DACA. She explained: “Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing [DAPA] litigation, and the September 4, 2017, letter from the Attorney General, it is clear that the June 15, 2012, DACA program should be terminated.” Duke instructed the Department to stop accepting new DACA applications immediately and to stop accepting renewal applications after one month. (The attorney general’s letter is here: https://www.dhs.gov/publication/letter-attorney-general-sessions-acting-secretary-duke-rescission-daca. The Duke memo is here: https://www.dhs.gov/news/2017/09/05/ memorandum-rescission-daca.)

States, organizations, and individuals brought multiple lawsuits challenging the rescission in California, New York, and the District of Columbia. The cases were consolidated into the three now before the Court. In each case, the district courts ruled for the plaintiffs. In the California and New York cases, the courts granted a preliminary injunction halting the rescission; in the D.C. case, the court entered a final judgment vacating the termination decision, but giving the Department an opportunity to “provid[e] a fuller explanation for the determination that the program lacks statutory and constitutional authority.”

In response to the D.C. court’s invitation, then secretary of Homeland Security Kirstjen M. Nielsen issued a memorandum on June 22, 2018, further explaining the “several separate and independently sufficient reasons” why the Department rescinded the DACA program. First, she explained that “the DACA policy was contrary to law,” because “the [Immigration and Nationality Act] d[id] not grant [her] discretion to grant deferred action and lawful presence on a class-wide basis,” and that “[a]ny arguable distinctions between the DAPA and DACA policies” were “not sufficiently material” to change that conclusion. Next, she asserted that she “lack[ed] sufficient confidence in the DACA policy’s legality to continue this non-enforcement policy, whether the courts would ultimately uphold it or not.” Third, she offered policy reasons to rescind DACA, regardless of whether it is “legal or legally questionable.” Finally, she wrote that “neither any individual’s reliance on the expected continuation of the DACA policy nor the sympathetic circumstances of DACA recipients as a class” outweigh the reasons to end the policy. (You can read the full Nielsen memo here: https://www.dhs.gov/sites/default/files/ publications/18_0622_S1_Memorandum_DACA.pdf.)

Despite the information in Nielsen’s memo, the D.C. court again ruled for the plaintiffs (but it modified its order to comport with the preliminary injunctions that had been issued in the other cases). The court held that Nielsen’s memo “fail[ed] to elaborate meaningfully on the agency’s primary rationale for its decision.” The court said that the memo merely “repackage[d] legal arguments previously made” and offered new rationales that were not a part of Duke’s original explanation for the rescission.

The Ninth Circuit affirmed the California ruling. The Supreme Court granted certiorari to the Ninth Circuit, granted certiorari before judgment in the other cases, and consolidated the three cases for briefing and argument.


Under the Administrative Procedure Act (APA), agency action cannot be arbitrary or capricious. This means that agencies need to explain the reasons for their actions and that the reasons need to be, well, reasonable. This standard sets a low bar for agencies, to be sure, but it’s still a bar. As a general matter, courts can vacate an agency decision that violates this standard. 

At the same time, under the APA, some agency decisions are not reviewable in the courts at all. In particular, under Section 701(a)(2) of the APA, courts cannot review agency decisions that are “committed to agency discretion by law.” In other words, if federal law leaves a decision purely to an agency’s discretion, courts will not second-guess the agency.

This case touches on both the standard and the reviewability under the APA as applied to the government’s rescission decision. Both issues turn on the government’s reasons for rescission—the original reason in the Duke memo (that the government lacks authority to maintain DACA, because it is illegal), and, possibly, any additional reasons in the Nielsen memo. (The parties dispute whether the Nielsen memo, as an after-the-fact justification, is even relevant, and, if it is, whether it really adds anything to the Duke memo.)

The parties argue both issues, starting with reviewability. (If the courts can’t review the case, there’s no reason to get to the merits.) The government filed just one merits brief in the case, but, because the case consolidates various challenges, the plaintiffs filed several. For simplicity, this preview describes their combined arguments together, as the plaintiffs’ arguments.

The government argues first that the rescission is not reviewable in the courts. It says that rescission is “committed to agency discretion by law” under the APA: “A decision to rescind a policy of nonenforcement is a quintessential action committed to an agency’s absolute discretion, absent a statutory directive limiting this discretion.” Moreover, the government maintains that the lower courts were wrong to rule that Section 701(a)(2) does not apply to DACA’s rescission on the ground that the government determined that DACA was unlawful. The government contends that an otherwise unreviewable action does not become reviewable simply because of the reasons that the agency provides. And in any event, it asserts that the Duke and Nielsen memos rely not just on legal grounds, but on policy grounds, too.

Next, the government argues that even if the rescission is reviewable, its reasons are not arbitrary and capricious. The government claims that it was “reasonably concerned about maintaining a nonenforcement policy that is similar to, if not materially indistinguishable from, two related policies that the Fifth Circuit held unlawful, in a decision affirmed by an equally divided vote of this Court.” It contends that it wanted to halt a legally questionable administrative policy and instead leave the matter to Congress. And it maintains that it correctly concluded that DACA was unlawful. The government says that none of these independent reasons for rescission “is remotely arbitrary or capricious, let alone all three.”

The plaintiffs counter that the courts can review the rescission. They contend that the government’s sole rationale for rescission is that it lacked authority to maintain DACA. But they say that the APA’s exception precluding judicial review of actions that are “committed to agency discretion by law” simply “cannot apply when the publicly stated basis for the action is that the law left the agency with no discretionary choice to make.” (Emphasis added.)

As to the merits, the plaintiffs argue that the rescission must be vacated because it is based on an invalid legal premise, that the government lacks authority to maintain it. The plaintiffs point out that the government has broad discretion in enforcing immigration laws, including adopting policies that “guide individual relief decisions for a class of potential applicants with common characteristics,” like DACA. The plaintiffs say that the government has been providing this kind of relief to various classes for six decades. They claim that DACA, with its targeted objectives and individualized assessment, comfortably fits within this tradition. Moreover, the plaintiffs maintain that the government’s legal analysis of DACA was incomplete and flawed, that it failed to distinguish between the DAPA program and DACA, and that it failed to explain why the rescission justification differed from the government’s own earlier analysis in the Office of Legal Counsel memorandum. (Recall that the Office of Legal Counsel originally opined that DACA was valid.) For these reasons, the plaintiffs contend that the government’s reason for rescission (that DACA was illegal) was wrong and that its analysis was incomplete. They say that because the agency’s reason for rescission was legally flawed, the decision was arbitrary and capricious.

The plaintiffs argue that any additional reasons for rescission in the Nielsen memo have no place in the Court’s consideration. According to the plaintiffs, that’s because a government action must stand or fall under the APA based on its original reasons—here, those stated in the Duke memo, and not the later, pretextual reasons in the Nielsen memo. In any event, the plaintiffs contend that the Nielsen memo does not add anything to the Duke memo, that its reasons are insufficient to explain the rescission, and that both memos fail to consider the weighty interests of DACA recipients.


This case is easily one of the most important and high-profile cases of the Term. That’s principally because of the nature of the DACA program and the context of the rescission. To supporters, DACA represents a practical solution, absent congressional intervention, to a very real problem: hundreds of thousands of young noncitizens (the “dreamers”), brought here as children, are currently living in the United States without authorization; and despite the fact that for many of these youth the United States is the only country they know as home, they live under a constant threat of deportation to a country that is foreign to them. After Congress declined to respond to the problem, the Obama Administration implemented the DACA program, drawing on a decades-long tradition of executive forbearance for broad categories of noncitizens, which is recognized in the law, and the idea of “prosecutorial discretion.”

As of September 2017, when the government rescinded the program, there were nearly 700,000 active DACA recipients. Their average age was just under 24 years old. Over 90 percent of them were employed, and 45 percent were in school. They work and live in U.S. communities and contribute to these communities in the same ways that U.S. citizens and lawful residents do.  

(It’s important to note that a ruling upholding the rescission would not automatically result in the immediate deportation of these individuals. The government must still pick and choose how to prioritize deportation, within the immigration-enforcement resources allocated by Congress. Still, such a ruling would more directly threaten deportation by removing this substantial protection. Critically, it would also revoke work authorization and other federal benefits for DACA recipients.)

For the detractors, however, DACA represents a gross overreach of executive authority and bad immigration policy. Opponents of the program have always maintained that it lacked authorization in the law, that the Obama Administration exercised unlawful executive authority in adopting it, and that only Congress (not the executive branch) can enact this kind of policy. They have also maintained that DACA perversely grants benefits to individuals who came to the United States illegally (even if as children), ahead of others who have slogged through the ordinary channels for immigration and naturalization. In the Trump Administration, these arguments have only amplified, and DACA rescission has become just a small part of the administration’s much more comprehensive and multifaceted push to restrict immigration and to deter and punish unauthorized immigrants.

In addition to its effects on DACA recipients and immigration policy, the case is also important for what it says about executive authority. As to the DACA program, the case raises important questions about the president’s ability to effect policy through nonenforcement and executive discretion. Lower courts ruled that the Obama Administration likely exceeded its authority in adopting a similar program, DAPA, and an equally divided Court affirmed. United States v. Texas, 136 S. Ct. 2271 (2016). Those rulings may foretell the Court’s approach to this case. But it’s important to remember that there are significant differences between the two programs, and the lower courts’ rulings on DAPA don’t necessarily dictate a result here.

As to the rescission, the case raises important questions about the president’s ability to effect policy by unilaterally changing prior executive policy. In particular, it tests whether an executive decision to revoke a prior policy that a new administration deems unlawful is, without further explanation, arbitrary and capricious. This question turns on the sufficiency of the government’s explanation and how thoroughly a new administration needs to justify its rescission.

And that leads to one final point. This case is now the third in a line of cases in which the Trump Administration used after-the-fact or shifting justifications and policy changes for hotly contentious policy initiatives. In the first case, Trump v. Hawaii, 138 S. Ct. 2392 (2018), the Court upheld the administration’s travel ban after the government changed the initial policy twice in order to tailor it to its stated justifications. In the second case, Department of Commerce v. New York, 139 S. Ct. 2551 (2019), the Court held that the administration’s stated reason for its decision to add a citizenship question to the census came only after the secretary determined to add the question and was therefore pretextual. As the third case in this line, this case tests, yet again, how the Court will treat a Trump Administration after-the-fact justification for a major and contentious policy initiative.

Steven D. Schwinn is a professor of law at the University of Illinois Chicago John Marshall Law School and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at sschwinn@jmls.edu or 312.386.2865.

PREVIEW of United States Supreme Court Cases 47, no. 2 (November 4, 2019): 27–31. © 2019 American Bar Association


  • For Petitioners Department of Homeland Security, et al. (Noel J. Francisco, Solicitor General, 202.514.2217)
  • For Respondents Princeton University, Microsoft Corporation, Maria De La Cruz Perales Sanchez (Lindsay C. Harrison, 202.639.6000)
  • For Respondents County of Santa Clara and Service Employees International Union Local 521 (Stacey Monica Leyton, 415.421.7151)
  • For Respondents Regents of the University of California and Janet Napolitano, President of the University of California (Robert A. Long Jr., 202.662.6000)
  • For Respondents California, et al. (Michael James Mongan, 415.510.3920)
  • For Respondents Dulce Garcia, et al. (Theodore Boutrose, 213.229.7000
  • For Respondents New York, et al. (Barbara Dale Underwood, 212.416.8016)
  • For Respondent Martin Jonathan Batalla Vidal (Michael J. Wishnie, 203.436.4780)


In Support of Petitioner Department of Homeland Security

  • Center for Constitutional Jurisprudence (John C. Eastman, 877.855.3330)
  • Citizens United, Citizens United Foundation, and the Presidential Coalition, LLC (Robert Jeffrey Olson, 703.356.5070)
  • Immigration Reform Law Institute (Lawrence J. Joseph, 202.355.9452)
  • Professors—Dean Ronald A. Cass, Christopher C. Demuth Sr., James L. Huffman (Ronald Andrew Cass, 703.438.7590)
  • Save Jobs USA (John Michael Miano, 202.232.5590) 
  • Southeastern Legal Foundation (Kurt Robert Hilbert, 770.551.9310)
  • Texas, et al. (Kyle Douglas Hawkins, 512.936.1700) 

In Support of Respondents

  • 47 Nonprofit Legal Services Organizations (Maureen P. Alger, 650.843.5001)
  • 109 Cities, Counties, Municipalities, and Local Government Advocacy Organizations (Michael Joseph Dundas, 213.978.8130)
  • 127 Religious Organizations (Steven Alan Zalesin, 212.336.2000)
  • 143 U.S. Business Associations and Companies (Andrew John Pincus, 202.263.3220)
  • Administrative Law Practitioners (Kevin K. Russell, 202.362.0636)
  • Administrative Law Scholars (Seth P. Waxman, 202.663.6800)
  • Alianza Americas, et al. (Neil V. McKittrick, 617.994.5726)
  • American Council on Education and 43 Other Higher Education Associations (Neal Kumar Katyal, 202.637.5528)
  • American Historical Association, Organization of American Historians, 42 Historians, and the Fred T. Korematsu Center for Law and Equality (Pratik Arvind Shah, 202.887.4210)
  • American Professional Society on the Abuse of Children, American Academy of Pediatrics, Center for Law and Social Policy, and 33 Child Advocacy Organizations, Medical Professionals, and Child Development Experts (Mary Kelly Persyn, 628.400.1254)
  • Association of American Medical Colleges, et al. (Jonathan Saul Franklin, 202.662.0466)
  • Current and Former Prosecutors and Law Enforcement Leaders (Mary B. McCord, 202.661.6607)
  • Current Members of Congress and Bipartisan Former Members of Congress (Brianne Jenna Gorod, 202.296.6889)
  • DACA Recipients and State of New Jersey (Nina Perales, 210.224.5476)
  • Empirical Scholars (Nikolas Bowie, 617.988.0606)
  • Former Homeland Security and Immigration Officials (Albert Quoc Giang, 213.629.9040)
  • Former National Security Officials (Harold Hongju Koh, 203.432.4932)
  • Former Service Secretaries, et al. (Charles Bennett Klein, 202.282.5977)
  • Government of the United Mexican States (Adela Elvia Ruth McChesney, 210.590.1844)
  • Immigration Law Scholars (Harry Lee, 202.429.8112)
  • Institutions of Higher Education (Bruce V. Spiva, 202.654.6203)
  • Lawyers' Committee for Civil Rights Under Law, et al. (William D. Coston, 202.344.4168)
  • National Association of Home Builders, the Real Estate Roundtable, and the Essential Worker Immigration Coalition (Gavin Robert Villareal, 512.322.2652)
  • NAACP Legal Defense & Educational Fund, Inc. (Natasha Clarise Merle, 212.965.2200)
  • National Education Association and National PTA (Alice Margaret O'Brien, 202.822.7048)
  • National School Boards Association, School Superintendents Association, National Association of Secondary School Principals, and American School Counselor Association (Richard P. Bress, 202.637.2137)
  • National Queer Asian Pacific Islander Alliance (Susan Marie Finegan, 617.542.6000)
  • Nevada, et al. (Heidi Jill Parry Stern, 775.684.1100)
  • Nineteen Colleges and Universities (Anton Metlitsky, 212.326.2000)
  • Public Citizen, Inc, Natural Resources Defense Council, Inc., American Civil Liberties Union (Scott Lawrence Nelson, 202.588.1000)
  • Public Interest Law Center, et al. (Thomas Warnes Hazlett, 215.665.8500)
  • Service Employees International Union, American Federation of Labor and Congress of Industrial Organizations, and American Federation of State, County, and Municipal Employees (Deepak Gupta, 202.888.1741)
  • Teach for America, Inc. (Ronald G. Blum, 212.830.7186)
  • Tim Cook, Deirdre O'Brien, and Apple (E. Joshua Rosenkranz, 212.506.5000)
  • United States Conference of Catholic Bishops, et al. (Stephen William Miller, 202.730.1305)
  • United We Dream and 50 Organizations (Peter Karanjia, 202.799.4000)

Supporting DACA as a Policy of Law but Petitioners as a Matter of Law

  • Cato Institute (Ilya Shapiro, 202.842.0200)