Last week, the Supreme Court ruled 5-4 that the Deferred Action for Childhood Arrivals program (DACA) will remain in place, ruling that the Trump administration’s attempts to rescind DACA were “arbitrary and capricious.” This episode details the Supreme Court’s majority opinion, written by Chief Justice Roberts; the partial dissents by Justices Thomas, Alito, and Kavanaugh; and how the case arose, including the history of DACA under the Obama and Trump administrations. Constitutional law scholars Leah Litman, co-host of the podcast Strict Scrutiny, and Jonathan Adler, contributor to the Volokh Conspiracy blog, join host Jeffrey Rosen to discuss.
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PARTICIPANTS
Leah Litman is Assistant Professor of Law at the University of Michigan Law school where she focuses on constitutional law. She is also a regular contributor to the Take Care blog and a co-host of Strict Scrutiny, a podcast about the Supreme Court.
Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law, where he also teaches constitutional law. He is a contributing editor to National Review Online and a regular contributor to the legal blog, “The Volokh Conspiracy.”
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
This episode was engineered by the National Constitution Center's AV team and produced by Jackie McDermott. Research was provided by Maggie Gillespie and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. Last week, the Supreme Court ruled that the Deferred Action for Childhood Arrivals program or DACA will remain in place for now, calling the Trump Administration's attempts to rescind DACA, arbitrary and capricious. On today's episode, we will take a deep dive into this important decision and we're honored to be joined by two of America's leading Supreme Court experts. Two great friends of We The People. Leah Litman is Assistant Professor of Law at the University of Michigan Law School, where she focuses on constitutional law. She's also a regular contributor to the Take Care blog and a host of Strict Scrutiny, a podcast about the Supreme Court. Leah, it's so great to have you back on the show.
Leah Litman: [00:01:03] It's wonderful to be back. Thank you so much for having me.
Rosen: [00:01:07] Jonathan Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law, where he also teaches constitutional law. He is a contributing editor to National Review online and a regular contributor to the legal blog "The Volokh Conspiracy". Jonathan, it is wonderful to have you back as well.
Jonathan Adler: [00:01:29] Good to be here.
Rosen: [00:01:31] Leah, let's begin by explaining to our listeners how we got here. What is DACA? What is DAPA? How did the lower courts and the Supreme Court deal with legal challenges to both of these programs before, and what was the program that the Supreme Court was considering in the DACA case?
Litman: [00:01:52] So, the Deferred Action for Childhood Arrivals program was a program that began during the Obama Administration and what it did is it was a memorandum that was written and announced by then the Secretary of Department of Homeland Security, Janet Napolitano. And that memorandum announced that the Administration was designating as local priority for removal any individual who met certain criteria that the Administration approved for deferred action. Those criteria were that they entered the United States as minors, that they were below a certain age, that they had no significant criminal history and that they did not present any threat to public safety or otherwise. And so those individuals provided their information to the Department of Homeland Security, who then did background checks on them and determined whether or not to grant them DACA or not, and granting an individually DACA not only designated them as low priority for removal, and in fact, the memorandum directed immigration officers to immediately remove them from any deportation proceeding. If such a proceeding were to be initiated. It also, then granted the individuals access to work legally in the United States. By regulation, the Attorney General determined that individuals with deferred action or who are granted deferred status are authorized to work in the United States, and the enforcement memo said, this is going to be true for individuals who received DACA as well. In addition to that, they also had access to certain public benefits such as retirement accounts. And so that's what the DACA memo did. The administration begins to implement that. Now there are something like 700,000 individuals who received DACA over the course of the Obama Administration. In part, because of the perceived popularity and success of the DACA program, the Administration then announced, the Obama Administration that is, the Deferred Action Program for Parents of American citizens. That program made eligible for deferred action, parents of American citizens, rather than children who were brought to the United States illegally when they were minors. However, once the Administration announced that policy, Texas and other States sued to enjoin the program before it ever went into affect. They succeeded in obtaining a preliminary injunction against the policy in both the District Court and the Fifth Circuit. The Obama Administration appealed that decision, successfully got a petition for sociality granted in the Supreme Court. That case was heard the term that Justice Scalia passed away, and the Supreme Court ends up affirming the Fifth Circuit opinion, invalidating DAPA by an equally divided 4-4 vote, and so DAPA never went into effect, but DACA did. And so fast forward to the beginning of the Trump Administration. In September of 2017, the Trump Administration issues a memo by then acting Secretary of Homeland Security, Elaine Duke, announcing that she is rescinding, i.e. ending the DACA program and all of its associated protections and benefits.
Rosen: [00:05:13] Thank you for that really clear and extremely helpful procedural history. So Jonathan, Leah has taken us up to the Duke memo from 2017 that was at the core of Chief Justice Roberts substantive holding that the Trump administration did not in fact rely on the Duke memo in deciding to rescind the decision. And that it should have considered the facts of rescission on the dreamers before meeting the requirements of the Administrative Procedure Act. Tell us more about that aspect of the decision.
Adler: [00:05:50] Sure. So, the Duke memo was issued in part because the Attorney General had determined that at least in the view of the Justice Department that DACA was unlawful. And the Department of Homeland Security is bound by that determination. Chief Justice Roberts noted that the Department of Homeland Security was bound by that determination, but Chief Justice Roberts also wrote that the Department of Homeland Security was required to do more than simply say, okay, the Attorney General has had this unlawful we're done here, but that the Department of Homeland Security had to engage in a more careful consideration of the various ways to address the legal infirmity of the DACA policy, as well as to consider their reliance interests that those who had received a deferred removal as well as work permits, and benefits, what interests they had that would be disrupted. The fact that you had people that had grown up here that had gone to school, gotten degrees, gotten jobs, built families, bought houses and to suddenly say, oh yeah, you're not going to be able to renew this deferred removal is clearly disruptive. And Chief Justice Roberts stressed that those reliance interests in particular needed to be considered. And that there was nothing on the face of the Duke memo that indicated any consideration of either the policy aspects of the decision, whether or not DACA was a good or a bad idea, and did not seem to address at least directly the reliance interests that DACA beneficiaries had in being able to continue to rely upon the ability to stay in this country.
Rosen: [00:07:48] Leah, this is a complicated and important decision of administrative law, and there was a threshold question decided by Chief Justice Roberts and the four Justices who joined him, the liberal justices, that the decision was reviewable in the first place. In other words, that the courts had the power to consider it. Tell us about Chief Justice Roberts' holding on that part of the decision.
Litman: [00:08:15] Of course. So, in administrative law, most administrative actions are judicially reviewable. There is a presumption in favor of judicial review. However, by statute, certain issues or matters are committed to an agency's discretion by law. One category of policies that are not often judicially reviewable, are what are known as enforcement decisions and specifically non-enforcement decisions, a decision by an agency or the executive branch not to initiate an enforcement proceeding against a particular party or entity. So one argument the administration made is that their decision to rescind DACA was a kind of enforcement policy that is not reviewable in court, and instead is committed to the agency's discretion by law. In the DACA decision, Chief Justice rejected that argument, finding that the DACA rescission and DACA itself were not traditional non-enforcement policies. Why? Because individual immigration decisions resembled more adjudications then they did enforcement proceedings. On top of that, the DACA program is not just as a decision about whether to deport someone or not, but instead their ability to access certain benefits, including the ability to work legally in the United States, and that detail about the DACA program will be significant throughout the opinion. But here the Chief Justice said because DACA and the DACA rescission are not just an ordinary non-enforcement policy, the Administration's decision to rescind DACA was reviewable in court.
Rosen: [00:09:59] Thank you very much for drawing up a series of helpful distinctions. First between a non-enforcement decision and an adjudication, and then that distinction between the benefits that DACA gave and the decision to deport, which as you said, will be significant later. Jonathan, you have written in your commentary on DACA that the threshold decision that DACA is subject to judicial review is significant, while the Administrative Procedure Act has long been understood to embody a presumption of judicial review it's also long been understood that exercises of enforcement discretion generally immune from such review. So, tell us about why you think it's significant and help us understand that decision.
Adler: [00:10:43] Well, it's significant I think because the actual decision to deport has often been understood, and long been understood, as an exercise of enforcement discretion. In fact, when the Obama Administration was defending the lawfulness of DAPA, the related immigration policy that had been challenged in the Supreme Court but that the Supreme Court split 4-4 on, the Obama Administration argued that their policies were not subject to judicial review for among other reasons, because they were committed to agency discretion because they involved questions about how to, among other things, how to deploy enforcement resources, whether or not to seek a deportation of one person versus another, or whether to devote immigration enforcement resources to perhaps other aspects of immigration law altogether. And so what's interesting about this change is that the Court, I think has broadened the notion of, or the category of actions that are subject to judicial review under the Administrative Procedure Act and has narrowed the range of enforcement related decisions that are presumptivel immune from judicial review and did so in a way not only rejected the Trump Administration's position, but also in important respects, rejected the position that had been adopted by the Obama Administration, in its efforts to defend the lawfulness of these sorts of programs.
Rosen: [00:12:11] Leah, what was the legal grounds for Chief Justice Roberts saying that those reliance interests have to be considered? And the dissenter said that because the program was in fact illegal, they didn't have to be considered, what was the basis for their argument on the other side?
Litman: [00:12:29] So, under the Administrative Procedure Act, which we've kind of been talking about throughout this discussion, the statute prohibits agency actions, or allows agency actions, to be set aside if they are arbitrary or capricious or otherwise in violation of law. And one way that an agency action can be arbitrary and capricious is if it is not adequately explained that is if the agency does not consider all sides of an issue or important alternatives to its decision. So that was the specific statutory basis that the majority relied on to conclude that the DACA recission was illegal. It was arbitrary and capricious because the administration had not adequately explained or discussed alternatives to ending the entirety of DACA, nor had it considered the reliance interests. Now, three of the dissenters Justice Gorsuch, Justice Alito, and Justice Thomas, would have held at the Deferred Action for Childhood Arrivals program is illegal, full stop, and therefore administration can end it. The fourth dissenter, Justice Kavanaugh, did not specifically consider that. Now, one interesting aspect of their determination that DACA is illegal, is as we were talking about when we discuss the mechanics of the DACA program, granting deferred action carries with it benefits such as work authorization by virtue of longstanding, and regulations that preexisted the creation of DACA itself. So, for example, the regulation that says individuals who receive deferral from removal or deferred action are authorized to work in the United States dates back to a Ronald Reagan era regulation. Similarly, the regulation that says individuals with deferred action can receive access to certain public benefits, such as retirement accounts that dates back to the Clinton Administration. So the dissenters determination that DACA is illegal. It's I'm not entirely clear if they were saying DACA as implemented is illegal, those regulations that predated DACA are illegal, and in an interesting footnote, they said, if by statute Congress had authorized the Attorney General to grant work authorizations to people with deferred action or public benefits, then they were inclined to say that, that statute was unconstitutional as violating the non delegation doctrine, which prohibits Congress from giving out its legislative power. So because their's was not a majority opinion, it's not entirely clear which specific portions of DACA or the broader statutory and regulatory scheme, they would have held nlawful. But their conclusion that DACA was illegal meant that they therefore believe that the administration's decision to end an illegal program was not arbitrary and capricious.
Rosen: [00:15:34] Jonathan you have written, "I believe DACA was lawful given the decade long practice of immigration, law enforcement and implementation that allowed forbearance and the receipt of benefits. But I also believe the Trump Administration had no obligation to provide any explanation at all for its rescission". Tell us on the substantive question of whether or not it was lawful, maybe tell us why you think, it was lawful and why the dissenters believed it is unlawful.
Adler: [00:16:04] Yes. So, there's a bunch there to unpack. So, I tended to agree with the Obama Administration that DACA and DAPA were both guidances. So, they were statements of policy about how the Justice Department and Department of Homeland Security were going to deploy and prioritize their enforcement resources. That they represented what I think is a perfectly sensible policy that of people that are in the country unlawfully, people that came here as children through no fault of their own and built lives here really should and have lived here lawfully are really, you know, at the at the end of the list of people that we would ever want to deport. And that the agency, since it's not going to be deporting everybody all the time can decide we're going to prioritize some people over others, just as we see in other contexts, right. That with regards to marijuana policy, the Justice Department saying they're concerned about people that traffic marijuana across state lines, they're not worried about people that possess or distribute marijuana locally in compliance with state law. So it's that sort of guidance. And then on the other aspects of the things that historically have come with deferred action, like work permits as Leah noted. There is this Ronald Reagan regulation, but the actual practice of issuing work permits and allowing people to remain in this country and work lawfully goes back to at least the 1970s. The most famous example actually involves John Lennon, who was in the country, if I recall correctly, was arrested I believe on a minor drug offense and was going to be deported for obvious political reasons. The Justice Department said, yeah, we're not, we're not going to kick John Lennon out of this country and we are going to continue to allow him to work. We'd like him to continue to record in this country. And so that practice had been done and gone on at least since the 1970s, and if one accepts the framework for thinking about what Congress has authorized under statute that Justice Frankfurter laid out in the Youngstown Steel decision. The fact that this is how we've enforced immigration policy and implemented it for half a century. And that Congress has been aware of this has benefited from it, virtually every office in Congress at some point in time has made the phone call over to the executive branch saying, hey, here's a person could you please let them stay in the country and let them work. That it's become the understanding of how our immigration laws. So, I think that those arguments in defense of what the Obama Administration did as a matter of law were correct and that the only way to conclude that the Obama Administration's policies were unlawful would be to not only condemn the Ronald Reagan regulation and the Clinton Administration policies, but also to in effect condemn what has been standard practice since at least the 1970s. The one argument that some have made to try and distinguish at least what occurred in the 1970s from the modern practice is to say that the 1970s practice was always truly case by case, an evaluation of a specific individual's claim to want to stay into the country, whereas the claim is that the Obama Administration guidance, while it talks about case by case determination, the argument has been made that it was really a kind of a wholesale decision about a whole class of people without looking at their individual circumstances. I'm not sure if that characterization is correct, but that's one argument that's been made to try and distinguish the Obama policy from longstanding practice. But in so far as, the Obama policy was a guidance. Under administrative law guidances can be issued and revoked without any process at all. You are not required to go through any of the processes for rulemaking under section 553 of the Administrative Procedure Act and something like a guidance isn't even subject to the procedural requirements of so-called ancillary matters under section 555. So, if DACA was a guidance, then it should not take anything more than saying this is no longer out our policy, this guidance is no longer in effect. And on top of that, if the Department of Homeland Security was bound by the Attorney General's determination that DACA was unlawful, which Chief Justice Roberts says in his opinion, then I find it odd that an agency can't cease an unlawful practice simply by just ceasing that unlawful practice. The Robert's opinion never says definitively whether DACA was or was not lawful. It notes the Attorney General's position. It notes the potential consequences of DACA being lawful or unlawful, but never resolves that question. And I find it really problematic that if a prior administrative action was unlawful that any process other than rescinding it or declaring it rescinded would be necessary. The idea that one administration could lock into place an unlawful practice or at least make it hard to end, I think is very problematic and I don't think has a basis in the APA.
Rosen: [00:21:48] Leah, maybe your response to that point cause it does have important implications for future presidents ability to reverse the decisions of their predecessor, Jonathan says that the Trump Administration should be able to rescind an Obama guidance that it believes is illegal, whether it's right or not, without any particular reasons beyond that whatsoever. What's the court's response and what's your response?
Litman: [00:22:13] I think the court's response is that even guidance documents can create some reliance interests, so here having granted deferred action and the associated benefits to individuals, those individuals then made life decisions and life choices in light of that guidance and in light of their belief that the administration was designating them as low priority for removal and that they would be allowed to continue to work in the United States. So after the briefing and argument in the case, some of the challengers filed supplemental briefs outlining how, for example, several thousand DACA recipients were employed as frontline healthcare workers in the coronavirus crisis. These are individuals that underwent and invested significant time resources and their own personal risk in obtaining the necessary training to practice on the front lines and then actually do that. And so even though, guidance involves some sort of discretion, and even though the DACA documents said this does not create any rights. The Chief Justice's opinion said even if that's true, this program was significant enough in the benefits that it conferred and in promising the possibility of renewal that individuals may have significant reliance, outlays or expenditures in relying on that document. And so in light of that, those reliance interests that is part of why the administration had to explain its recession. I do, however, think that it's difficult not to read the Chief Justice's opinion as a strong thumb on the scale in favor of DACA being lawful, because if it is illegal then that makes the administration's authority to rescind it that much stronger. Now that doesn't necessarily mean that courts that are currently entertaining challenges to DACA, there's actually a pending case in which Texas filed a challenge to DACA in a District Court in Texas. That doesn't mean those courts will say the Chief Justice basically put a thumb on the scale and strongly imply that DACA is lawful. But I do think that the tenor of the opinion and its explanation for why the recission was illegal strongly suggests, and has to in some important respects, rest on the premise that the Obama Administration had the authority to enact DACA, because otherwise, of course, we think that administrations have to have the authority to end unlawful programs.
Rosen: [00:24:53] Interesting. Jonathan, you have called Chief Justice Roberts' decision of a piece with what you've characterized as anti-disruption approach to judging he dislikes decisions that alter precedent, invalidate federal statutes, sweep too broad, whereas here upset settled expectations or cause administrative disruption. Was he applying that entity disruption principle, as you call it, in the census case last year, where he joined the liberals in saying that Secretary Ross couldn't add the citizenship question to the census? And how has that principle playing out in this case?
Adler: [00:25:29] Well, I, definitely think we see that here. I mean, I think as Leah noted, at the number of people whose lives would have been disrupted by rescission of DACA and Congress's failure to enact a DACA replacement into law, would have been tremendous. And I do not doubt that, that weighed on the Chief Justice. We've seen in a number of cases him adopting approaches to particularly to remedy, but approaches to statutory interpretation and other questions that seek to minimize the practical consequences of the decision. We see this in a very narrow approach to severability. We see it in his approach to precedent. We see it in his approach to a constitutional avoidance. I'm not sure that, that necessarily applies to the census case. Because I do think in the census case, it's not entirely clear how disruptive that decision would have been. It's not entirely clear how much that was a focus to the court. There was however in the census case, pretty clear evidence that things that the administration had said in defense of their actions were simply not true. So to me, I think I view the census cases as more the Chief Justice not willing to rubber stamp dishonesty by an agency. And that administrative law is generally very permissive to agencies. You know give us a plausible reason to explanation that you can repeat without giggling, with a straight face and we'll let you do that even though we know that politics and other things may interfere. In the census case that permissive test was failed. And I think that's what explained the Chief's vote there. But here, I think the chief was definitely moved by the number of people who would have their lives uprooted, and then the number of other institutions throughout society, I think Leah mentioned healthcare workers in the likely, the number of institutions that would have been been affected by suddenly exposing all the DACA recipients to the threat of removal would have been quite dramatic. And the Chief Justice tries to avoid, in my opinion, tries to avoid those sorts of decisions.
Rosen: [00:28:05] Leah, let's just put squarely on the table why Justice Thomas and the dissenters think that DACA was illegal? Justice Thomas says that the Obama Administration created DACA without any statutory authorization and without going through the requisite will making process, as a result of the program was unlawful from its inception. Tell us as fully as possible, why Justice Thomas and those who were challenging the program think that it was illegal?
Litman: [00:28:36] So Justice Thomas and the Justices who joined him have what I think is both a statutory argument and also a constitutional one. Their statutory argument is the argument that the US Court of Appeals for the Fifth Circuit relied on to conclude that DAPA was illegal. And the Fifth Circuit's conclusion is that the DAPA program essentially altered individual's legal rights and benefits, and it did so either by granting work authorization by effectively in practice conferring lawful status by granting some protection against removal or deportation, and that those rights, if they are to be created by an administrative agency, have to go through rulemaking procedures, like noticing comment rather than being announced in a guidance document, so that's their statutory argument. But part of their argument also appears to be a constitutional argument. And that argument is similar, but a little bit different, because it imagines that even if the executive branch attempted to put this policy, DACA or DAPA, through notice and comment rulemaking. It lacks the authority to do so because Congress has not by statute granted the Executive Branch, Attorney General, Department of Homeland Security, the ability to confer deferred removals protections from deportation or work permits on individuals that are not specifically authorized or entitled to do those things by statute. So that's the constitutional argument. But they also have that statutory administrative law argument. These things of course blend together because whether the administration has a statutory authority to create this program might affect whether they have to go through notice and comment rulemaking or a guidance document. So those are the different shades of their argument for why DACA or DAPA are illegal. I did just want to note one addition to Jonathan's story about John Lennon, which is part of how we know about the existence of deferred removal is that Lennon and his lawyers actually filed a Freedom of Information Act lawsuit, demanding and requesting information from the then INS, Immigration and Naturalization Services, about deferred action and deportations and relief from removal, because the agency was denying the existence of this policy. But Lennon and his lawyers uncovered it.
Rosen: [00:31:06] Oh wow, the spray gets better and better. Jonathan in the DAPA case, and we now know the distinction between the two, the Supreme court split four to four and in that case, Chief Justice Roberts joined the three other conservative Justices in holding that DAPA was illegal on statutory and constitutional grounds, and Leah tells us that the statutory and constitutional arguments against DACA are similar. Did Chief Justice Roberts change his mind or what can explain his different vote in the two cases.
Adler: [00:31:38] Well, I think one thing that may explain the different vote is the practical the consequences. DAPA was enjoined pretty quickly by a federal district court. Leah recounted that history earlier. And so there weren't a lot of people that have been relying upon that program that were now suddenly in jeopardy, whereas DACA had not been enjoined initially. It had been in existence for years, people had gotten their deferred action and lawful status and work permits renewed, and so the number of people practice typically affected by the decision I think would have been different. So, I think that's part of what explains the Chief Justice's switch. And I would say my own view is that the assumption that the Chief Justice voted to invalidate DAPA, I think explains why his opinion never says one way or the other definitively whether DACA itself is lawful. So because at least internally, he presumably was committed to the position that an immigration policy that is more than simply enforcement discretion requires some degree of process, which had been one of the arguments in the DAPA case. So I think that is significant. The other thing that may have affected the Chief Justice's decision, and this may be a connection to the census opinion, is that the Chief Justice was a very successful, prominent, well-regarded lawyer whose work was known to be impeccable. And it's plausible that he is disturbed by the, shall we say less than impeccable legal work, particularly in the administrative law context, that has characterized a lot of what the Trump Administration has done across a lot of areas. Even the so-called travel ban, which was ultimately upheld by the Supreme court, had to go through three iterations before they could get something together that was plausibly defensible. It would not surprise me if the Chief Justice is also concerned about the slapdash work that's been done to advance certain Trump Administration policies. When I teach administrative law, one of the things I tell my students is that when you're trying to defend an agency action you don't do the minimum you think is legally necessary you do all the things you have time to do you dot every "I" you cross every "T" you put on both the belt and suspenders because you don't want to make it easy for a court to overturn what you're doing. The Trump Administration I think sometimes has done simply the bare minimum. So the Duke memo simply saying we think this is illegal, we're not going to say anything else, I think it was enough but it was the bare minimum. A more responsible administration would have said more understanding that in the context of litigation, you can't be assured that a reviewing court is going to view your actions precisely the way you do. You want that extra degree of security that comes from adding the additional defenses, and the administration didn't do that. I think that sort of work bothers John Roberts.
Rosen: [00:35:06] Leah, Chief Justice Roberts declined to consider a June 2018 memo by Secretary Neilson defending the rescission. Chief Justice Roberts said it's a foundational principle of administrative law that courts should only look at the grounds on which an agency relied when it took the action challenge. And the Chief noted that Nielsen could have issued a new decision terminating DACA, but decided not to and instead relied on the memo from before. Justice Kavanaugh disagreed and he said that the court should have and could have relied on the Nielsen memo, and that it's a fundamental principle of the administrative law that the subsequent justifications may add legal weight. Tell us more about justice Kavanaugh's reasoning and why he disagreed with the Chief?
Litman: [00:36:02] So now we're going to go full on into the weeds. So as we've been focusing primarily on the Duke memo, which was the initial memo to announce the DACA recession. Once the administration rescinded DACA, the recession was challenged by several different plaintiff groups. There were DACA recipients, the State of California, University of California, NAACP, and so on. In one of those pieces of litigation, the one in the District Court for the District of Columbia, the district judge concluded that the recission was unlawful, but appeared to adopt a version of a remedy that is known as remand with vacatur. What that means is when a court concludes that an agency action is illegal, they will vacate the rule but then stay the court's opinion and give the agency a chance to correct the agencies errors. Now here, the district judge appeared to invite the agency to issue a new policy rescinding DACA that would have offered additional reasons beyond the deficient reasons or the reasons that the court found deficient in the Duke memo. The Nielsen memo, however, it did not explicitly say I am adopting a new policy that is going to have a different effective date or different contours and therefore my generate additional discovery, instead, she said, I am clarifying and sticking by the Duke memo. So in light of the district court and the Supreme court's conclusion that the Nielsen memo was not a new policy, they said, well, because you have to judge an agency action by its reasons when it was announced they could not consider any reasons in the Nielsen memo that were not in the Duke memo. So Justice Kavanaugh disagreed with that conclusion, and his disagreement kind of came along two distinct lines. One is he seemed to think that perhaps you could read the Nielsen memo as a new policy, in which case it would be permissible for the court to address the new reasons in the Nielsen memo. I think that that conclusion is slightly complicated because whenever there's a policy or a new policy plaintiffs might be entitled to discovery about the materials or decision making process that led to that policy, and so then the plaintiffs might have been entitled to some additional discovery about what led to the Nielsen memo, whereas previously they had only sought or gotten discovery about what related to the Duke memo. But his second conclusion is that it is okay for an agency head, i.e. actual agency decision maker, to provide additional reasons. What is not permissible is for agency litigators, i.e. the lawyers defending a policy, to offer additional reasons above and beyond whatever the agency did. Separately, he also suggested that perhaps it is permissible for an agency to adopt different reasons and adjudications, but not yet rulemakings or vice versa, and so he would have limited the new reason rule, which dates back to it a Supreme Court case Chenery 1. He would have limited those circumstances to policies where litigators are adding new reasons, not agency decision makers, or perhaps adjudications rather than rulemaking. The Chief Justice and the majority however did not, and so that's where the division came out.
Rosen: [00:39:50] Thank you so much for that. Thank you for teaching our listeners about remand with or withour vacatur, which is crucial at various stages of the case. And it really does help us unpack the majority's reasonin. Jonathan, as an administrative law teacher, how unusual was the Chief's treatment of that vacatur principle in this case? And then just stepping back away from the weeds, how could the Trump Administration have repealed this with greater craftsmanship in a way that would have satisfied the Supreme Court?
Adler: [00:40:25] Sure. So, I'll go in reverse order. Certainly, once this issue was back in the lap of the Trump Administration, the requests to supplement or reconsider what was in the Duke memo, I certainly think that it would have been better that the Nielsen memo not merely say that it was clarifying the Duke memo, but say that it was reaffirming or reinstituting or something that would more expect implicitly indicate that this was still the ongoing policy of the administration and that it was not simply a description of a prior decision. I think that that distinction is part of what Justice Kavanaugh was getting at. Usually, when we think about the requirement that an agency explain what it did when it did it, we are thinking about context in which either there are defined procedures for agency decision-making, as occurs in a formal adjudication as occurs in an informal rulemaking, or there is a statute that provides specific criteria that the agency is required to consider. We don't usually see this question raised in the context of something that is understood to be a policy statement or a guidance document, because it's generally understood that no process is required for those sorts of documents. And so since they can be altered at any time a policymakers reaffirmation of the continuing policy is perfectly acceptable. And as I noted before, the Obama Administration had defended these policies as guidance documents as the sort of administrative actions for which no process at all is required. There is not even a requirement of an explanation. I think the administration was relying upon that. As Leah noted, there is a practice that is most common in the US Court of Appeals for the DC Circuit, which hears the lion's share of challenges to nationwide regulations issued by administrative agencies of sometimes sending agency actions back to the agencies without vacating or completely eliminating the regulations, without taking them off the books. So, you have a really complicated Environmental Protection Agency air pollution rule and it's got lots of moving parts and the EPA did everything right for 90% of the rule or 95% of it, but it didn't properly explain a case that comes to mind, why it relied upon a particular computer model estimating air pollution trends in one way for one part of the rule but in a different way in the other part of the rule. The Court knows that the agency is not going to change its mind in terms of the broad scope of the policy or the broad regulation. It might have to fix some tiny little detail or it may simply have to provide a slightly better explanation. And so in some cases, the DC Circuit and other courts will send the action back to the agency and say fix it but we're not going to make you start over from scratch. We're not going to erase it from the books. And there is a question I think after Chief Justice Roberts' opinion, whether or not that is an appropriate process. It's a process that's not clearly provided for in the Administrative Procedure Act. I mean there are arguments that you can derive it from the Administrative Procedure Act, but there's no language that expressly says that this sort of thing is okay. And if it wasn't okay, in this instance, there is I think a serious question going forward whether or not this process matters. And what that means as a practical matter is that agencies will have to be a lot more careful about the nitty gritty details of how they go about issuing rules or adjudicating matters under various statutes. Because even a small mistake, can require them to essentially start over and that would be a big deal.
Rosen: [00:44:50] One other aspect of the opinion we should discuss and then we'll look forward. Justice Sotomayor joined most of Chief Justice Roberts' opinion, but she disagreed with him and with all of her colleagues about their rejection of the claim that the decision to end DACA was motivated by an intent to discriminate. She noted that the President had made statements describing Mexican immigrants as criminals, drug dealers, and rapists and these bear on unlawful migration from Mexico. Taken together she concluded the president's statements helped to create the strong perception that the decision to end DACA was motivated by an intent to discriminate. Leah, tell us more about Justice Sotomayor's conclusion. Why you think none of her colleagues joined her and whether or not you agree with her?
Litman: [00:45:41] So, I should say before I sa whether I agree with her, that I am one of the lawyers for the DACA recipients, and so you will be getting my opinion in that context. Justice Sotomayor would have said that the plaintiffs at this stage of the litigation, which is on a motion to dismiss slash preliminary injunction, so it's essentially asking whether they have stated a plausible claim that the recession was motivated by unconstitutional animus, she said that they had. I think that this ruling of the Court is in many ways reminiscent of the travel ban decision that Jonathan spoke about earlier when discussing the Chief Justices' skepticism of sloppy administrative work. In that case, the court ruled 5-4 that the travel ban was not motivated by unconstitutional religious discrimination, and in part minimize the significance of statements that were made in the context of a presidential political campaign. And here many of the statements were again statements that the President had made in the context of his campaign for President. Now in the travel ban case, it was 5-4 but only Justice Sotomayor and Justice Ginsburg fully embraced the notion that the plaintiffs had established that the travel ban was motivated by invidious discrimination. Here, however, Justice Sotomayor is writing for herself and the evidence she relies on are in part statements that the President made. You noted some of them, he called the bad ones from Mexico that were coming to the country. She also noted the disparate impact of this policy on the Latino communities and racial minorities. So, I think that the entire corpus of evidence that was before the Court indicated that the plaintiffs had made out a plausible claim and should have been allowed to pursue it further that the policy was motivated by unconstitutional discrimination, but the Court's conclusion that they had not was extremely similar to what the Court had said about the travel ban in Trump v. Hawaii, and frankly, other disparate impact cases. This court has been extremely reluctant and not particularly likely to conclude that facially neutral policies, policies that don't agree explicitly mentioned race are in fact motivated by racial animus.
Rosen: [00:48:10] Jonathan, your thoughts about the animus argument? Why do you think that only Justice Sotomayor joined it? Why didn't the liberal justices join her and whether or not you agree with it?
Adler: [00:48:22] Well, I think that that under the relevant precedents, including a case called Arlington Heights the decision was probably correct, at least with regard to those precedents. There's longstanding precedent that an individual who's unlawfully present in the country can't challenge or cannot make a selective enforcement challenge against the government, and then under Arlington Heights disparate impact is generally not enough. There needs to be information or evidence that would raise a plausible inference of invidious discrimination. And what I think Chief Justice Roberts and the other Justices that joined this part of his opinion are concerned about is we have a president that says a lot of intemperate things to put it nicely, and the actual decisions of government agencies though are made by other individuals and in anti-discrimination law we have a lot of cases that are sensitive to not tagging one decision maker or decision making institution with the bias that may be more properly attributable to someone else. So the Court doesn't, Chief Justice Roberts doesn't say Trump's comments don't evidence prejudice, rather he says the decision makers were the Attorney General, who made the determination that DACA was unlawful, and the Secretary of Homeland Security, who then implemented or acted upon that, and there was no evidence that either of them were motivated by a prejudice. And that is what would be necessary to make that constitutional claim. The fact that we have a president who at rallies or on Twitter or wherever else says all sorts of things that the objectionable things is not enough and I think further I suspect that Chief Justice Roberts and at least some of the Justices that joined his opinion are concerned about saying or about the idea that any statement made in particular during a campaign can then be used to subsequently invalidate government actions that are otherwise procedurally proper. That once a President is in office, once an administration is in place that so long as that administration follows the rules that we expect the government to follow, we are going to evaluate those actions on that basis. We are not going to reach back to the intemperate things that may have been said during the campaign. And I think the one question is, is this a rule that the Courts have had to come up with because we have a particularly intemperate President, or is this something that is better understood as trying to take account of the difference between campaign rhetoric and what occurs in politics and what occurs in administration.
Rosen: [00:51:39] Well, you've both done a superb job and really helping us understand the complicated strains on both sides of this decision and reminding us of the intricacies of administrative law and the importance of understanding the document before we're making up our mind about what we think the right answer is. For closing arguments, I'll ask each of you the same question. First to you, Leah, what is the significance of Chief Justice Roberts' vote in this DACA case, and what does it tell you about what we should be looking for from the Chief Justice in the cases that will be decided at the end of this important term in the week to come?
Litman: [00:52:20] I think the most important significance of the Chief Justice's vote is for the DACA recipients themselves. Many of them were making preparations for extreme upheavals in their lives, writing letters to their families about here is where I have a stash of cash, here's the title to my car, here's the title to my house. If and when I am detained and likely to be deported, they were having to speak to their employers about work transition plans. You know what are you going to do if I have to no longer appear at the hospital or law practice. And his opinion and his vote ended those preparations at least temporarily, and I think relieved an enormous weight from their lives. As to what it means we should watch for in the later opinions, I think we should try to ask ourselves whether the Chief Justice has changed or whether instead the kinds of cases that the Supreme Court has been taking, as a result of the lower courts or at the invitation of the federal government have changed just in the last year or three years. And so that's what I would invite listeners to think about to focus less on whether the Chief Justice's voting tendencies or voting patterns might have changed in light of his new role as media and justice and instead to consider also whether the cases that the court is hearing have changed.
Rosen: [00:53:46] Jonathan, last word to you. What do you think is the significant of the Chief Justice's vote in the DACA case? And what will you be looking for from the Chief in the cases to come?
Adler: [00:53:56] Sure. Well, first I agree with everything that Leah just said. I mean obviously as a practical matter this case is exceedingly important to all the DACA beneficiaries, and at least for the time being provides a degree of relief. I think it's also significant and that it shows that the Trump Aministration can't assume that merely because there are five Republican appointed justices that they will win any case, no matter how sloppy or how sloppy their administrative work or what sorts of arguments are brought to the Court. Two things I would look for going forward. I mean, one is how the Trump Administration responds. The Court was unanimous in concluding that the Trump Administration has the authority to end this program, and of course the easiest way for the Trump Administration to end this program would be to make explicit that as a matter of policy the Trump Aministration wants to be able to deport DACA recipients. The Trump Administration has been reluctant to say that, although it has said it wants to use DACA recipients as a bargain chip for more wall funding and things like that. But what the Trump Administration does and whether it does anything between now and the end of the year to try and re-rescind DACA I think is something to pay a lot of attention to. And then in terms of the Chief Justice, there are some cases, the case challenging the constitutionality of the Consumer Financial Protection Bureau, certainly would be a disruptive opinion to invalidate a congressionally created agency and how broadly to invalidate portions of the law that created the CFPB is something to, I think, look closely at. The June Medical Services case, in which the Court is asked to either overturn or read exceedingly narrowly a recent precedent of the court. That's another type of disruption that historically the Chief has been reluctant to endorse. And so I would pay attention to those aspects of these cases, whether or not, the Chief Justice is willing to adopt legal conclusions and remedial holdings that produce disruption, or is he convinced to be more of a status quo justice the way in many respects he was here.
Rosen: [00:56:35] Thank you so much Leah Litman and Jonathan Adler for a rigorous, wonky in the best sense, and really educational discussion of the important DACA case and for telling us what to look out for in the important weeks to come Leah, Jonathan, thank you so much for joining.
Adler: [00:56:54] My pleasure.
Litman: [00:56:55] Thanks for having us.
Rosen: [00:56:58] Today's show is engineered by the National Constitution Center's AV team and produced by Jackie McDermott, research was provided by Maggie Gillespie and Lana Ulrich. Please rate, review and subscribe to We The People on Apple podcasts and recommend the show to friends, colleagues, or anyone, anywhere who's hungry for a weekly dose of constitutional debate. And always remember that the National Constitution Center is a private nonprofit. We rely on the generosity, passion and engagement with people from across the country. We're inspired by our nonpartisan mission of constitutional education and debate. You can support the mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount to support our work, including this podcast, at constitutioncenter.org/donate, on behalf of the National Consitution Center, I'm Jeffrey Rosen.
