On Thursday, the Supreme Court issued its decision in the Deferred Action on Childhood Arrivals (DACA) case.  There were four basic issues in this case, and the Supreme Court addressed three of them directly.  There was some language that indirectly discussed the fourth issue, but no ultimate decision.   There were three basic groups of votes — two groups of four and a group of one.  As expected, the opinion was written by the Chief Justice.

By way of background, DACA was an Obama-administration program which allowed some individuals who had been brought here illegally as children to apply for deferral of removal for a set period.   One of the benefits of participating in this program was that these immigrants would also gain the right to legally work in the U.S.  Before the end of the Obama Administration, an equivalent program was established for parents (DAPA), but the Republicans managed to get a federal district court in Texas and the Fifth Circuit to block that program, and the Trump Administration withdrew the program.  Part of the complaints had to deal with the work authorization, and the Trump Department of Justice believed that DACA had the same flaw.  As a result, the Trump Department of Homeland Security announced the end of DACA with a wind-down period established (no new application and a limited period in which participants could renew their deferrals).  Cases were then filed challenging this decision under the Administrative Procedure Act (which governs the process of making administrative decisions) and also alleging other flaws in the decision including claims that the decision was motivated by an intent to discriminate against Latinx.

The first issue was a jurisdictional threshold question — was the decision on DACA reviewable under the Administrative Procedure Act.  The Supreme Court rejected the argument that discretionary policies are not reviewable.  While there is a discretionary exception, the Supreme Court found that — in most circumstances — that exception is limited to discretion exercised in an individual case rather than the discretionary decision to establish or end a program.  The Supreme Court found that, while the result of DACA might be individual decisions in individual cases (which would otherwise be discretionary under immigration law), the establishment of a program creating a procedure to seek those individual decisions was subject to review under the APA.  This part of the decision may prove to be big going forward, but it will apply to both executive decisions that are conservative and executive decisions that are progressive. Continue Reading...