Natalie Gomez-Velez and Janet M. Calvo, professors at CUNY School of Law, discuss today's Supreme Court's decision regarding DACA...
The Supreme Court today issued a decision that the Trump administration’s rescission of DACA, Deferred Action for Childhood Arrivals, was unlawful because it failed to explain adequately why it ended DACA. In an opinion by Chief Justice Roberts, the Court determined that the DACA rescission was arbitrary and capricious in violation of the Administrative Procedure Act. The Court vacated the Department of Homeland Security’s (DHS) rescission of DACA initiated in 2012. This means that for now DACA recipients’ protection against removal from this country and eligibility for work authorization are maintained. However, according to the decision, the Trump administration has the authority to try again to rescind DACA if it follows the administrative decision-making process the law requires.
If DHS makes a new determination to rescind DACA it must explain why it is choosing to end DACA and in doing so, consider all the relevant policy options and the reliance interests that a rescission would involve. The decision recognizes well-settled administrative law requirements that agencies make rational decisions, refrain from upsetting significant reliance interests, and explain their actions so that they are accountable to the people. However, it also recognizes the administration’s ability to rescind DACA if that rescission follows the Administrative Procedure Act’s requirements. The Court’s decision also dismissed further consideration of valid equal protection claims raised in the challenge to DACA’s rescission. The decision is positive for the approximately 700,000 young people known as Dreamers in that their protections under DACA remain at least for now. But they remain in legal limbo subject to the actions of a hostile administration. Federal, state, and local action are required to recognize Dreamers’ contributions to the country that has been their home since they were children and to the contributions of all undocumented people – our neighbors, co-workers, and family – who contribute to the health, economy, and vitality of the U.S.
The questions before the Court were whether the Department of Homeland Security’s (DHS) decision to end DACA is reviewable by a court and if so whether DHS ended DACA lawfully. As to the first question, the Court determined that the decision was reviewable. It reached this conclusion because DACA determinations were not “passive non-enforcement” but “a program for conferring affirmative immigration relief” and DACA rescission thus is an action “that provides a focus for judicial review.” The Court also held that the discretion given DHS in immigration law permits the current administration to choose to end DACA if it provides a rational explanation for its decision taking into account policy options and reliance interests. Normally, when an agency drastically changes policy and upsets serious reliance interests, as DHS has done with DACA, administrative law requires the agency to give a rational explanation for the change. The purpose is to support reasoned decision making and hold the agency accountable for its policy decisions. However, the Court held that DHS’s current decision to rescind DACA was arbitrary and capricious because DHS Acting Secretary Duke “failed to consider important aspects of the problem.”
But the Court’s description of DHS’s policy options is troubling. Chief Justice Roberts notes that the DHS Secretary failed to consider “removing benefits eligibility while continuing forbearance” as an option. This would mean that DACA recipients would not have eligibility for work authorization but would not be subject to removal from the US. Justice Roberts states “Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.” Here, Roberts seems to suggest that DHS has the discretion to continue deferred action on removal while forbidding any associated benefits such as work authorization now provided. Needless to say, such a course of action would cause significant harm by preventing DACA recipients from contributing to the benefits of their educations and labor and therefore undermining their ability to support themselves and their families.
Chief Justice Roberts also points to the DHS Secretary’s failure to consider significant reliance interests associated with DACA. For example, he noted the argument that “The consequences of the rescission . . . would “radiate outward” to DACA recipients’ families, including their 200,000 US-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. He also noted that “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.”
In this sense, the arguments of plaintiffs and numerous others detailing the significant reliance interests that would be upset by rescinding DACA appear to have affected the decision. As Justice Breyer noted during oral argument, it is settled law that “when an agency’s prior policy has engendered serious reliance interests, [such interests] must be taken into account.” Justice Breyer then enumerated “all kinds of reliance interests” noting briefs from 66 healthcare organizations, three labor unions, 210 educational associations, six military organizations, three home builders, 108 municipalities and cities, 129 religious organizations, and 145 businesses stating “different kinds of reliance interests.” DHS has not explained whether or how it considered such reliance interests in deciding to rescind DACA. The Court now requires DHS to provide such an explanation if it again attempts to rescind DACA, in accord with settled administrative law.
The Court also dismissed the plaintiff’s equal protection claims grounded in the animus President Trump has explicitly expressed against Latinos, especially those with Mexican heritage. The Court reversed the three lower courts that had found the cases’ arguments were sufficient to meet the modest threshold for pleading requirements at the beginning of a case. Under the lower courts’ rulings whether the plaintiffs in the cases could ultimately demonstrate discrimination would be dependent on the full factual development as the cases proceeded. As the dissent on this issue by Justice Sotomayor points out the plaintiffs presented sufficient initial facts that would allow a court to draw the reasonable inference that the government officials were liable for equal protection violations.
The lower courts applied the appropriate standard in determining that the equal protection claims had been sufficiently plead, making Roberts’ determination of this issue worrisome. The complaints included particularized facts that plausibly allege discrimination by cataloging Trump’s declarations that Mexican immigrants are criminals, drug dealers, and rapists and compared undocumented immigrants to animals responsible for drugs, gangs, and cartels, which were a keystone of his campaign and administration policies. These statements give at least an initial indication that these views were an animating force behind the decision to rescind DACA. The complaints also asserted the disproportionate impact of the DACA rescission on Latinos and demonstrated an abrupt change in the Trump administration’s DACA policy that suggests unlawful motivation behind the DACA rescission decision. The Supreme Court’s decision is not only erroneous in the context of this case, it does not seem compelled either by equal protection doctrine or by the Court’s current, already constrained reading of pleading requirements under the Federal Rules of Civil Procedure.
The real-world impacts of the Court’s decision could not be more consequential. As the Court noted, in the eight years DACA has been in effect, young people who came to the US as children have been able to go to school, work, enter professions, start businesses and contribute to the US society and economy. For example, CUNY law school has educated DACA recipients to be outstanding public service attorneys. Further, as the Court also noted, DACA recipients and their households significantly contribute to the economy and payment of taxes.
Ending DACA would devastate American families and communities, resulting in severe emotional and economic harm. Despite their contributions, DACA recipients live in constant uncertainty and fear. The average DACA recipient arrived in the U.S. at age 7. The average current age is 28. Many have started families; over 200,000 U.S born children have at least one DACA parent. New York State has 28,180 DACAs with 62,500 individuals living in households with DACA, 7000 of whom are the U.S. born children of DACAs.
The degree to which DACA recipients contribute to the United States has become even more apparent in the COVID-19 pandemic. In a supplemental memorandum submitted in the case, attorneys representing DACAs noted that the public health crisis illuminates the depth of the reliance issues DHS did not adequately consider in terminating DACA. Employers, civil society, state and local governments, and communities across the country, and especially healthcare providers rely on DACA recipients. DACA recipients’ important contributions during the pandemic highlight the significant adverse consequences of eliminating their ability to live and work without fear of imminent removal from the country, and these are some of the important consequences the agency failed to consider.
During the COVID-19 crisis, 202,500 DACA recipients are working to protect the health and safety of Americans as essential workers, health care workers, and educators. According to the Associations of American Medical Colleges, healthcare providers on the frontlines of the US efforts against COVID-19 rely significantly upon DACA recipients to perform essential work. Approximately 27,000 DACA recipients are healthcare workers—including nurses, dentists, pharmacists, physician assistants, home health aides, technicians, and other staff—and nearly 200 are medical students, residents, and physicians. Further, they declared that the US is not prepared to fill the loss that would result if DACA recipients were excluded from the health care workforce. They noted that shortages in health care workers will be felt most keenly in medically underserved areas in which DACAs are likeliest to work, such as rural settings and poor neighborhoods. Terminating DACA would deprive the American public of domestically educated, well-trained, and otherwise qualified health care professionals.
The ultimate resolution for the young Americans who are DACA recipients is in the hands of Congress. The House passed the American Dream and Promise Act in June of 2019. It provides a pathway to permanent residency and citizenship through college, work or the armed services. However, the Dream Act has been stymied in the Senate. Public opinion in support of DACA has been consistently high. Congress must finally follow the public’s lead and finally provide Dreamers with the recognition and security they have shown they deserve so that they may continue their contributions to family, community, and their country, the United States. Better yet, this country would benefit from immigration reform legislation that recognized the presence, family relationships, and contributions of its currently undocumented non-citizen residents.
In the interim, some states and localities have recognized the value of their DACA residents with concrete action. For example, New York State recognizes DACAs as New York residents, provides in-state tuition and higher education financial aid to DACAs who attended New York high schools, allows DACAs and other non-citizens professional licensing and state Medicaid coverage, applies labor standards and workman’s compensation to DACAs and other non-citizens, and allows Drivers’ Licenses to its residents regardless of immigration status. In New York City, among other services, the Health and Hospitals Corporation’s clinical and hospital services are available regardless of immigration status and the New York City Commission on Human Rights protects against discrimination based on alienage.
Under our federalist system states as sovereign entities have the authority to recognize the contributions of their residents regardless of immigration category and protect their health, safety, and welfare. It is time for states and localities to review and redouble their efforts to assure that DACA and other non-citizen residents are fully included and protected state residents. This is of utmost importance as we all confront a serious health threat that requires we all have the equal capacity to protect our families, our communities, and the nation.
Natalie Gomez-Velez is a Professor of Law and Director of the Center on Latinx Rights and Equality (CLRE) at CUNY School of Law. She teaches Administrative Law, Constitutional Structures and writes in the areas of public law, judicial selection, and education law.
Janet M. Calvo is a Professor of Law at CUNY School of Law.
Suggested Citation: Natalie Gomez-Velez and Janet M. Calvo, The Supreme Court’s DACA Decision Keeps Dreamers Safe…For Now, JURIST – Academic Commentary, June 18, 2020, https://www.jurist.org/commentary/2020/06/gomez-velez-calvo-scotus-daca/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at email@example.com
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