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Supreme Court’s DACA Ruling Thwarts Administrative State

Cass R. Sunstein

(Bloomberg Opinion) -- The Supreme Court’s decision to strike down the Trump administration’s attempted rescission of the program known as Deferred Action for Childhood Arrivals is, above all, a tribute to the rule of law.

It vindicates a defining idea in administrative law and a central check on the administrative state: Agencies must not behave arbitrarily.

The human stakes were, of course, very high. Adopted in 2012, DACA allows unauthorized immigrants who came to the U.S. as children to apply for a two-year “forbearance of removal” — meaning they don’t have to worry about deportation. If their application is granted, they are also eligible for work authorization and various federal benefits. As of now, about 700,000 people have taken advantage of the program.

The most important words in Chief Justice John Roberts’s opinion for the 5-4 majority are that “particularly when so much is at stake,” the U.S. “Government should turn square corners in dealing with the people.” The court’s conclusion was that the Trump administration failed to engage in reasoned decision-making. It did not turn square corners.

The legal controversy began in 2017, when then Attorney General Jeff Sessions sent a letter to the acting secretary of Homeland Security, Elaine Duke, informing her that, in his view, DACA was unlawful and that she should rescind it. She immediately did so, citing the attorney general’s letter and the illegality of the program. She did not say anything about whether DACA was a bad idea purely as a matter of policy.

The first issue before the Supreme Court was whether Duke’s decision was reviewable in court at all. With a breathtakingly broad argument, one that would cut at the heart of the rule of law, the government argued that it wasn’t.

In 1985, the high court had ruled that an agency’s refusal to initiate an enforcement proceeding is generally unreviewable. (That case involved a Food and Drug Administration decision not to undertake an enforcement action against certain uses of drugs.)

The Trump administration urged that the 1985 ruling should be taken to stand for a large proposition: A general non-enforcement policy, as opposed to a particular non-enforcement decision, is also unreviewable — and so is its rescission.

The court sidestepped that argument, concluding that DACA was more than a non-enforcement policy. It also established a whole process to identify people who could benefit from the program, with forbearances counting as “approvals” — not merely inaction. The court added that the 700,000 DACA recipients were entitled to work authorization as well as to certain federal benefits. Those benefits count as the kinds of interests that courts are often called upon to protect.

The second and trickier issue was whether the Homeland Security secretary’s decision was “arbitrary or capricious” under the Administrative Procedure Act. Everyone agreed that the department could get rid of DACA. The question was whether it had done so in a procedurally valid way, one that reflected reasoned decision-making.

The court noted that Attorney General Sessions’ conclusion, building on a lower court decision, was that DACA was unlawful since it made its recipients eligible for federal benefits. But even if that conclusion was correct, it would not mean that the program was unlawful insofar as it established a policy of forbearance (that is, against deportation).

Secretary Duke did not even address that policy — which meant that her deference to the attorney general’s legal conclusion was palpably inadequate to justify rescinding DACA.

As Chief Justice Roberts put it: “Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only” the decision to disallow benefits. It did not cast the slightest doubt on the legality of forbearance.

There was another problem. Since 2012, many of the 700,000 people had “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children’’ — meaning that DACA had established important reliance interests.

Those interests may not be decisive, but in rescinding the program, surely the government must at least consider them. Acting Secretary Duke failed to do so. That was arbitrary.

Still, the case was not an easy one. In an impressively careful and respectful dissent, Justice Brett Kavanaugh urged that the majority should have taken account of the more elaborate reasoning provided by Secretary Kirstjen Nielsen in 2018. In a much less respectful but also impressively careful dissent, Justice Clarence Thomas argued that DACA was unlawful, root and branch, and that the Trump administration did all that was legally necessary in order to rescind it.

But all in all, Chief Justice Roberts gets the better of the argument. We live in an era in which the administrative state is under siege from both left and right; one of the central complaints is about the arbitrary exercise of discretion.

The repeal of DACA was arbitrary. A central goal of the rule of law is to provide a corrective. That is exactly what the Supreme Court did.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

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