Comment: Justices tell Trump to follow rules to change rules

By Andrew Rudalevige / The Washington Post

Back in the fall of 2017, President Trump decided to end the Deferred Action for Childhood Arrivals (DACA) program. DACA, which prevented the deportation of hundreds of thousands of so-called “Dreamers” — people brought into the U.S. unlawfully as children — and provided them with the ability to work legally, was announced by then-President Obama in June 2012.

The Obama administration argued the program was legal, both as a matter of “prosecutorial discretion” and under the Immigration and Nationality Act. But after Trump’s election, the Justice Department changed its mind. On Sept. 4, 2017, Attorney General Jeff Sessions sent a brief letter to acting secretary of Homeland Security Elaine Duke calling DACA “an open-ended circumvention of immigration laws” and “an unconstitutional exercise of authority by the Executive Branch.” Duke quickly rescinded the program in a DHS memo, citing Sessions’ letter. Trump defended the change, saying rules must be obeyed, criticizing Obama for “making an end-run around Congress” and decrying the notion that “the executive branch is able to rewrite or nullify federal laws at will.”

Fast forward through numerous legal challenges to June 2020, when the Supreme Court canceled DACA’s cancellation, at least temporarily. The key reason? The Trump administration’s end-run around Congress in failing to obey the Administrative Procedure Act. “The dispute before the Court is not whether DHS may rescind DACA,” Chief Justice John Roberts Jr. wrote for the Court. It could. “The dispute is instead primarily about the procedure the agency followed in doing so.” In short, there are rules to follow, when making rules.

So what are those rules?

The Administrative Procedure Act (APA) dates from 1946, one of linked reforms passed in the wake of World War II. Public administration scholar David Rosenbloom writes that “Congress reluctantly accepted the likelihood that the growing complexity of public policy would require it to delegate … more broadly to the agencies.” So “it decided to treat the agencies as extensions of Congress for the performance of legislative functions, such as rulemaking” and “established a statutory framework for comprehensively regulating their procedures.” (For more, see Cornelius Kerwin and Scott Furlong’s “Rulemaking” or Rachel Potter’s “Bending the Rules.”)

As Justice Roberts put it, the key elements for the DACA case were that agencies must engage in “reasoned decision-making,” that agency actions cannot be “arbitrary or capricious.” That is true when making new policy, as well as when setting it aside — and the DHS decision did not clear this bar. Underwhelmed by White House arguments against DACA, DHS’s Duke simply repeated DOJ’s new position that DACA was illegal, “period,” said the Court. That is, Duke called it illegal without offering a policy justification or considering what alternatives there might be to fully rescinding the program.

Instead, the Court majority stressed that DACA comes in two parts: both protection from deportation (“forbearance”) and eligibility for benefits. The latter was the focus of court cases against related programs, like the much larger DAPA program (which extended DACA protections to Dreamers’ parents) that never went into effect. By contrast, the first was generally conceded to be legal, as law professor Ilya Somin observes; in those same cases even those suing the administration admitted Obama “could do forbearance from removal.” Yet when it came to DACA, DHS’s “rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits,” the Court decided. “That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious.” Justice Brett Kavanaugh dissented, arguing that a later, more expansive memorandum from subsequent DHS secretary Kirstjen Nielsen overcame the problem by providing enough explanation.

The majority, however, held that the department did not get to make up new reasons after the fact. The rationales of the Nielsen memo are “impermissible post hoc rationalization and thus are not properly before us,” a doctrine that comes from a 1943 case known as Chenery I.

Note that the Court did not decide whether DACA is good policy; or even if it is legal. That has never been fully litigated; though a few years ago lower courts in Texas made clear they felt that DAPA exceeded presidential authority. Justice Clarence Thomas’s dissent argues DACA is indeed unlawful, and that therefore none of the procedural questions matter. He also noted the “perverse” irony of requiring strict adherence to the APA when the original DACA guidance did not go through an extensive rulemaking process in its own right. And eight members of the Court rejected the argument that rescinding DACA violated its recipients’ rights to equal protection of the law.

Again, then, this decision is a matter of process, not substance. Is it thus based on an “idle and useless formality,” as the administration argued? Well, no. Sticking to procedural protections serves important values: of transparency, of accountability, and frankly of truth-telling. As political scientist Rachel Potter tweeted, “You can bend the rules, but you can’t break them.” Indeed, a cousin to this case arrived a year ago, when the Court held in Department of Commerce v. New York that the Trump administration’s motivation for adding a citizenship question to the 2020 census was a “contrived” pretext for a premade decision, that there was “a significant mismatch between the decision the Secretary [of Commerce] made and the rationale he provided.”

The Court has passed the ball back to DHS, and the president. If the White House does want to make a positive argument about why it is a good idea to deport the Dreamers, this decision provides the procedural road map for doing just that.

Yet there is little public support for that outcome, and so one of Trump’s tweets castigating the decision demanded he be let off the hook, that the Court provide “a legal solution on DACA, not a political one.” In fact, politics — that is, a president working with Congress to pass a law —remains the ultimate answer to the Dreamers’ dilemma.

Andrew Rudalevige is Thomas Brackett Reed Professor of Government at Bowdoin College. He specializes in the study of American political institutions, primarily the presidency and the interbranch relations, with a recent focus on presidential management of the executive branch. For other analysis and commentary from The Monkey Cage, an independent blog anchored by political scientists from universities around the country, see www.washingtonpost.com/blogs/monkey-cage.