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DACA Supreme Court Decision – Further Analysis

As previously reported by Mintz, last week the U.S. Supreme Court upheld three lower court rulings, holding that President Trump’s 2017 move to rescind the Deferred Action for Childhood Arrivals (DACA) program was unlawful under a federal law known as the Administrative Procedure Act (APA). In its landmark decision, the Court held that the Department of Homeland Security’s termination of DACA was “arbitrary and capricious” under the APA.

This challenge presented a complex set of legal arguments, which we analyze in further detail.


In 2012, the Department of Homeland Security (DHS) issued a memorandum announcing an immigration relief program known as Deferred Action for Childhood Arrivals (DACA), which allows certain individuals who arrived in the United States as children to apply for a renewable two-year forbearance of removal from the United States. Those granted relief from removal also become eligible for work authorization and federal benefits including Social Security and Medicare.

In 2014, DHS attempted to expand DACA eligibility and create a related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA would have made 4.3 million parents of U.S. citizens and lawful permanent residents eligible for forbearance and benefits, similar to those provided under DACA. However, 27 states challenged DAPA and the expansion of DACA in federal court, and ultimately convinced the Fifth Circuit Court of Appeals to bar implementation of both relief programs while legal proceedings continued. The court granted this preliminary bar, known as a temporary injunction, based on the strength of the states’ claim that the benefits conferred under the programs were unlawful. After President Trump took office in 2017, DHS rescinded the DAPA memorandum and the government stopped its defense of the policy in court. Accordingly, the proposed DAPA program and the expansion of DACA never came to fruition.  

In September 2017, then-Attorney General Jeff Sessions advised Acting Secretary of Homeland Security Elaine C. Duke that the original DACA program shared DAPA’s legal flaws and should be rescinded. The next day, Acting Secretary Duke, relying on the DAPA litigation and the Attorney General’s finding of illegality, terminated DACA altogether.

Following Acting Secretary Duke’s announcement, several groups of plaintiffs challenged the decision to rescind DACA on grounds that the decision violated the APA as well as the equal protection guarantee of the Fifth Amendment. Three District Courts ruled for the plaintiffs on their APA claims, but one of those courts chose to grant DHS an opportunity to reissue its rescission of DACA, this time with a fuller explanation of the conclusion that DACA was unlawful. Two months later, Acting Secretary Duke’s successor, DHS Secretary Kirstjen M. Nielsen, responded to the court’s order by declining to replace Duke’s rescission decision, instead issuing a new memorandum that purported to explain the government’s original rationale for eliminating DACA.

The Trump Administration’s Rationale for Rescinding DACA

As the majority opinion explains, to determine whether the decision to rescind DACA violated the APA, the Court’s scope of review was limited to the original reasons set forth by DHS for ending the program. Since the Court found that the reasoning in Secretary Nielsen’s memorandum bore little resemblance to that of Acting Secretary Duke’s Memorandum, which originally rescinded DACA, the Court set the Nielsen Memo aside as impermissible “post hoc rationalization” of the agency action.

Thus, the government’s sole explanation for eliminating DACA, in its entirety, was the rationale set forth in the original Duke Memorandum: (1) that the program is illegal based on the DAPA litigation, which established that benefits similar to those granted under DACA were illegal; and (2) that the Attorney General had sent a letter to Acting Secretary Duke, which concluded that benefits granted under DACA were illegal.

Whether the decision to rescind DACA was arbitrary and capricious under the APA

Next, the court turned to the question of whether the reasons cited in the Duke Memo were sufficient to rescind DACA, or arbitrary and capricious under the APA. The APA sets forth the procedures by which federal agencies are accountable to the public. It requires agencies to engage in “reasoned decision-making,” and directs courts to set aside agency actions if they do not engage in a reasoned analysis; or in the words of the statute, if the actions are “arbitrary” or “capricious.” This is a narrow standard of review in which courts can only step in where there has been a clear error of judgment.

Applying this framework, the Court made an important legal distinction between DACA’s two main components: (1) deferral of removal from the United States, or forbearance—DACA’s defining feature; and (2) a grant of “eligibility for benefits”— including work authorization, Social Security, and Medicare.

The majority opinion then underscored that the DAPA litigation only addressed the benefits granted under DAPA and not the illegality of forbearance. The majority also highlighted that Attorney General Jeff Sessions’ letter to Acting Secretary Duke neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, terminating the benefits eligibility component of DACA while continuing a policy of forbearance remained squarely within the discretion of Acting Secretary Duke.

Accordingly, the Court found that Acting Secretary Duke’s decision to rescind the forbearance component of DACA—without any explanation whatsoever—was “arbitrary and capricious” under the APA.

In addition, the Court found that the rescission of DACA was “arbitrary and capricious”—on separate grounds—because it failed to consider that DHS’s longstanding policies may have ‘engendered serious reliance interests” in DACA recipients. The Court rejected the government’s argument that DACA recipients have no legally cognizable reliance interests at all, and held that DHS’s failure to give any consideration whatsoever to DACA recipients’ reliance on DACA, prior to rescinding the policy, was “arbitrary and capricious” under the APA.

Equal Protection Claims

Finally, the Court considered whether DHS’s decision to rescind DACA was motivated by animus—that is, whether an “invidious discriminatory purpose” was a motivating factor behind the decision. Such discriminatory intent would constitute a violation of the equal protection guarantee under the Fifth Amendment.

Plaintiffs argued that President Trump’s critical statements about Latinos were clear proof of the government’s discriminatory extent. However, the Court disagreed, finding that the President’s statements about Latinos, discriminatory as they may be, were remote in time and made in unrelated contexts. The Court also noted that the relevant actors in rescinding DACA were most directly Acting Secretary Duke and the Attorney General. Thus, the Court held that the DACA rescission was not motivated by animus and did not violate the equal protection guarantee of the Fifth Amendment.


Based on the government’s violation of the APA, the Court struck down DHS’s rescission of DACA and remanded the three consolidated cases to DHS for further proceedings. But in striking down the rescission, the Court did not hold that DHS cannot rescind DACA—only that it could not do so without sufficiently explaining its underlying rationale. Thus, once DHS provides a reasoned explanation for terminating or limiting each of DACA’s main components, the agency will have wide latitude in deciding how to proceed and the courts will be very limited in their ability to second-guess DHS’s decision.

Looking Ahead

On the heels of the Supreme Court ruling, President Trump has announced that he intends to make a renewed push to terminate DACA.

It is important to note that DACA was never meant to be a permanent solution. Thus, it is imperative that Congress take action and pass a comprehensive legislative solution to provide Dreamers with a path to legal permanent residence and long-term immigration security. Until DHS undertakes further, concrete action to rescind DACA, Dreamers can continue to enjoy the benefits of this important, albeit unstable, temporary form of immigration relief. But ultimately, until Congress takes legislative action, Dreamers will continue taking part in a roller coaster ride for which they never signed up.

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Susan J. Cohen

Member / Founder and Chair Emeritus, Immigration Practice

Susan J. Cohen is Chair of Mintz's Immigration Practice and a nationally recognized Immigration lawyer. She helps corporate clients manage immigration challenges. Susan is an American Immigration Lawyers Association (AILA) member and she's contributed to state and federal immigration regulations.

Juan S. Steevens

Practice Group Associate

Juan S. Steevens is a Mintz Practice Group Associate who focuses on US immigration and nationality law. He counsels employers, entrepreneurs, and business professionals in a variety of industries.