Previous articleNext article FreeReading Regents and the Political Significance of LawCristina M. RodríguezCristina M. Rodríguez Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreWhen the Supreme Court handed down its decision in Department of Homeland Security v. Regents of the University of California, in June 2020, advocates celebrated. DACA—an acronym that no longer requires definition—lived to see another day.1 Newspaper headlines marked the decision as a decisive rebuff of the Trump administration’s efforts to end the Obama-era program that shielded so-called Dreamers from deportation while authorizing them to work in the United States.2 Initiated in 2012, the Deferred Action for Childhood Arrivals program had survived almost four years of a presidential administration overtly hostile to immigrants and immigration—a government bent on unraveling as much of the administrative and political legacy of its immediate predecessors as possible.3 The Supreme Court largely affirmed the Ninth Circuit’s holding that efforts by the Department of Homeland Security (DHS) to rescind DACA were arbitrary and capricious and therefore invalid, sending DHS back to the drawing board to accomplish its objectives.4 With the 2020 presidential election less than five months away and the very real possibility of regime change in the air, the decision seemed decisive. The Supreme Court had saved DACA, at least for the time being.On the other side of the presidential election, we can now say that the Dreamers and their lawyers succeeded in using the courts to run out the clock on one of the more high-profile efforts of the Trump presidency. This success calls for an explanation. The original legal theory of DACA was predicated on its discretionary and therefore defeasible character. The government justified DACA as a series of individual acts of prosecutorial discretion, defined as the inherent discretion law enforcement officials possess to forbear from enforcement, at their convenience, in order to prioritize enforcement resources. DACA’s founding document—a memorandum issued by the Secretary of Homeland Security—included the disclaimer standard in Executive orders and agency guidance documents: “this memorandum confers no substantive right.”5 DACA’s promise, then, lasted as long as the Executive wanted it to. The promise was durable as long as President Obama remained in office but unenforceable should the Executive branch fall into the hands of officials hostile to the program.Given the apparently weak anchor DACA provided, why was it so difficult for a new administration, whose enforcement priorities did not include categorical forbearance for Dreamers, to reorient the enforcement system in its preferred direction? A conventional answer, repeated as a description of many of the Trump administration’s stumbles across regulatory arenas, was that officials were incompetent, sloppy, and disingenuous. The myriad court opinions in the DACA rescission litigation of the Trump years, from across the country and up and down the judicial hierarchy, reflected a version of this thesis. No court concluded that DACA was required by law. All parties, including the Supreme Court, seemed to agree that an administration could end the program.6 But despite efforts to respond to the demands and criticisms of the lower courts, the Trump administration could not find its way to its desired conclusion.But if the Court has implicitly acknowledged that DACA is not legally required and expressly stated that the government has the authority to wind it down, in what sense was Regents a major victory? In this essay, I argue that Regents is not a triumph in immigration law or even a decision of immigration law; far from it, the opinion contains a roadmap to DACA’s demise. The decision’s salutary outcome for immigrants also distracts us from a more ominous turn in the Roberts Court toward a reading of the immigration laws that empowers both Congress and the President to do as they please—a reading exemplified by one of the Term’s other decisions, Department of Homeland Security v. Thuraissigiam, in which the Court rejects a Suspension Clause challenge to expedited removal proceedings.7Regents does reflect a kind of political triumph, however, not just because DACA was saved but because the Court calls attention to the profound interests its recipients have in remaining in the United States and thus to their new social status, separate and apart from their legal status. And yet, within the Regents decision itself, as well as in the legal claims made against the Trump administration, are the very tools with which courts might again stymie political change designed to advance immigrants’ rights, relying on the exacting procedural regularity championed in Regents by Chief Justice Roberts.I. The Trump Administration’s Failed RescissionChief Justice Roberts opened his opinion in 2012, at the moment of DACA’s inception. But to understand what DACA sought to achieve as a matter of administration, it is important to understand what it replaced. As most every court to have heard a DACA-related dispute has recognized, implicit in the operation of an immigration enforcement regime is the authority of Executive officials to set priorities for law enforcement agents. Those priorities can encourage agents to forbear from arresting or deporting otherwise removable non-citizens as part of a larger systemic interest in channeling resources toward removals in the government’s highest interests. Beginning in 2010, Obama-era DHS officials articulated a set of priorities in guidance documents (known as the Morton Memos) in an effort to encourage line-level officials to consider non-enforcement against certain types of individuals, including those who met the criteria that would eventually define DACA – the hundreds of thousands of non-citizens lacking immigration status who had been brought to the United States as youth.8 After two years of trying to steer the enforcement system with these exhortations, DHS officials determined that few obvious or publicly visible changes to enforcement practices had occurred. The Department’s political leadership, in conjunction with the White House, thus devised DACA to protect Dreamers from deportation. The program, adopted by what came to be known as the Napolitano memorandum, invited applications for forbearance from those who satisfied carefully drawn eligibility criteria, virtually ensuring, though not guaranteeing, protection and work authorization for Dreamers.9By the time President Donald Trump took office, more than 750,000 Dreamers had been granted DACA status,10 which provided them actual and psychological relief from removal and enabled them to enter the workforce and live as if their immigration status were immaterial. As a candidate, Donald Trump vowed to rescind DACA immediately, but in his initial months in office, President Trump himself expressed ambivalence and even reservations.11 In September 2017, however, Attorney General Jefferson Sessions sent a one-page, four-paragraph letter to Acting DHS Secretary Elaine Duke to “advise” that DHS should rescind the Napolitano memorandum initiating DACA on the ground that DACA was “an open-ended circumvention of immigration laws” and “an unconstitutional exercise of the authority of the Executive Branch.”12 The next day, in what had to have been a coordinated decision within the administration, Secretary Duke released her own memorandum terminating DACA,13 citing the Attorney General’s letter and the litigation that had called into question the legal authority for a second but now moribund Obama-era deferred action policy (Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)).14 The timing and content of each of these two administrative documents became central to the Supreme Court’s resolution of the legal question before it—whether the Trump administration’s efforts to rescind DACA had been lawful.The court case began in three different circuits, where an array of plaintiffs raised numerous substantive claims, two of which ended up before the Supreme Court: that the rescission of DACA was arbitrary and capricious in violation of the Administrative Procedure Act and that the rescission violated the Equal Protection Clause of the Constitution. In its culminating opinion, the Supreme Court first concluded that DACA did not fall into the class of non-enforcement decisions long held to be unreviewable by courts on the authority of Heckler v. Chaney.15 DACA amounted, instead, to a full-blown program for granting immigration relief and attendant benefits, justifying judicial review—review that jurisdiction-stripping provisions of the Immigration and Nationality Act (INA) also did not preclude. The Court then proceeded to hold that the rescission of DACA in its entirety was indeed inconsistent with the requirements of the APA but that none of the plaintiffs’ allegations established a “plausible” claim of racial animus under the Equal Protection Clause.But DACA was a discretionary program that the administration should have been able to undo easily, not a program that should have survived more than three years of a concerted rescission effort (assuming Trump officials’ hearts were in it). Why did a clearly permissible outcome evade the Trump administration? Though incompetence has been charged repeatedly in public commentary, the explanations offered by Chief Justice Roberts underscore that the federal courts’ conceptualization of the administration’s fault changed throughout the litigation.In his letter to Secretary Duke, Attorney General Sessions justified the rescission as legally required, in part citing the litigation risk that maintaining the program posed, given that the Fifth Circuit had invalidated President Obama’s similarly structured DAPA initiative.16 At the time, Adam Cox and I argued that the administration was hiding behind flimsy legal arguments to duck political responsibility and accountability for ending a widely popular and successful program.17 The lower courts quickly put a stop to this evasion by demanding that the Trump administration provide reasons for the rescission beyond what the courts viewed to be erroneous legal claims.18 Judge John Bates in the District for the District of Columbia actually gave the administration an opportunity to remedy the APA violation by providing the court with a more extended rationale for the rescission.19 The administration obliged with a memorandum from a new DHS Secretary, Kirstjen Nielsen, in which she purported not to disturb the Duke memorandum and its legal conclusions but added multiple policy reasons to justify the rescission.20 By elaborating on its legal reasoning and offering a policy rationale for ending DACA that could justify the rescission if the court continued to find the legal reasoning wanting—just the sort of rationale courts typically do not second-guess—the path to rescission seemed to have been cleared.And yet, at the Supreme Court, the sufficiency of the Nielsen memo went untested. In its opinion, the Court dismisses the memo’s relevance because it had been framed as an elaboration of the Duke memo and yet bore “little relationship” to the original purported basis for the agency action.21 Under hornbook administrative law, then, the Nielsen memo constituted an irrelevant post hoc rationalization. In support of this conclusion, the Court lists the familiar case law, for which the standard citation is SEC v. Chenery Corp.22, and the reasons for rejecting an elaborated justification and insisting that the agency start a new policy process or issue a new decision to invoke new reasons: that such requirements promote accountability, ensure the parties and public can respond to the agency’s authority, preserve the orderly process of review, and constrain the agency from making its reasons and therefore its policy a moving target.23Thus focused on the Duke memo, the Supreme Court offers a two-part reason for finding the rescission procedurally flawed, each part of which I consider in more detail in Part II. The first is a legal rationale not yet hit upon by the federal courts but offered by the respondents from the District of Columbia: according to the Court, the Sessions letter had concluded that DACA was unlawful because it contained the same legal defects the Fifth Circuit had found in DAPA. Because the Fifth Circuit focused its analysis on the benefits DAPA conferred (primarily eligibility for work authorization), the Secretary failed to appreciate that the Sessions letter left her with discretion to decouple the two parts of DACA and consider whether its forbearance policy standing alone, without benefits, passed legal muster.24 The second of the Court’s rationales also sounds in basic administrative law—that when it changes a policy, an agency must consider the reliance interests engendered by that policy, not because those interests are necessarily legally dispositive, but because they are always substantively relevant.25 Leaving aside the puzzlement expressed by Justice Thomas in his partial dissent—why should these reliance interests matter if some or all of the program itself was without legal foundation?—the Court gave the administration two clear assignments on remand if it hoped to continue the rescission effort.With this move, Chief Justice Roberts found a political sweet spot for someone hoping not to take sides on the merits. He did not allow the rescission to proceed, but he also avoided concluding that DACA was lawful. He thus did not close the door to an eventual gutting of DACA through elimination of the path to work authorization that made it so valuable. But whether Regents amounts to a “win” depends both on whose perspective we take and the timeframe we adopt. In the months after the decision, DACA recipients had clearly triumphed. The story’s denouement unfolded in a courtroom in the Eastern District of New York. After Regents, the government did indeed return to the drawing board. Attorney General William Barr rescinded all DOJ authorities relevant to the case, including a 2014 memorandum from the Office of Legal Counsel elaborating why the much larger DAPA program was consistent with the INA and within the Secretary’s authority.26 At DHS, Acting Secretary Chad Wolf rescinded the Nielsen and Duke memoranda and styled his own memo as beginning the process of considering DACA anew. He pledged that, while DHS conducted its fresh process, the agency would honor existing DACA grants but would no longer adjudicate new or pending applications. In his memorandum explaining these steps, Acting Secretary Wolf acknowledged the reliance interests of existing DACA holders by repeating back the Supreme Court’s articulation of those interests. But he then offered: “[w]hatever the merits of these asserted reliance interests on the maintenance of the DACA policy, they are significantly lessened, if not entirely lacking” for those who had never received deferred action in the first place.27Litigants immediately challenged this new quasi-rescission. But rather than determine if DHS had properly adhered to the procedural path cleared by the Supreme Court, Judge Nicholas Garaufis found Wolf’s appointment to have been unlawful, thus invalidating his actions as lacking authorization—a conclusion reached by numerous courts reviewing various DHS actions in the waning days of the Trump administration.28 Whether DHS could correct this structural defect and try yet again to rescind DACA became moot with the election of Joseph R. Biden to the presidency in November 2020. Biden pledged during the campaign to shore up DACA. Not long after his inauguration, he followed through by declaring his intention to “fortify” the program.29But even though the election brought the rescission saga to an end, a deeper, more speculative strain of Regents is now in play. Despite being a procedural decision on its surface and in its holdings, Chief Justice Roberts’s novel reasoning forecasts still more legal wrangling over both DACA’s validity and, more generally, the capacity of a new president to chart a different path on immigration policy.II. Immigration and the Roberts CourtRegents ensured that DACA would survive into a new administration determined to preserve it. But the decision itself is neither a victory for immigrants’ rights in a jurisprudential sense nor a particularly probative data point in a more holistic account of immigration law in the Roberts era. Most immediately, the opinion provides a roadmap to DACA’s demise by inviting litigants and judges to separate its two pillars—categorical forbearance from removal on the one hand and eligibility for work authorization and benefits tied to deferred action status on the other—and to invalidate the latter. Beyond DACA, the prospects for a jurisprudence that restrains the coercive power of the government against non-citizens grew even dimmer this Term, despite Regents. In the unrelated Thuraissigiam decision, the Roberts Court rejected yet another rights-based challenge to the assertion of a sweeping enforcement and removal power expressly authorized by Congress, continuing what increasingly appears to be the Court’s steady departure from its prior practice of infusing interpretations of the INA with a concern for basic due process principles. This opinion attracted much less interest from the media and general public than the fate of DACA, but it is of far greater importance to the future of immigration law qua law.The first step to dismantling DACA through the courts is establishing its justiciability, which the Regents Court appears to do definitively. As originally conceived, DACA was an exercise of the Secretary’s enforcement discretion—a form of decision-making typically insulated from judicial review.30 The so-called benefits features of DACA merely flowed from the decision to forbear from removal in light of regulations and administrative policies, dating back decades, that linked those benefits to a grant of deferred action.31 Indeed, it seems quite plausible that the Obama administration chose deferred action as the vehicle through which to provide Dreamers some relief because of these legal parameters—unreviewable discretion connected to an already established regulatory structure, complete with a ready-made and routine process by which recipients of forbearance could apply for employment authorization documents (EADs).But in various instantiations of the litigation over both DACA and DAPA, the Supreme Court and the lower courts have rebuffed the government’s argument (common across administrations) that the policies are unreviewable exercises of enforcement discretion.32 In Regents, the Court declines to apply Heckler v. Chaney and its holding that the decision to decline to enforce the law is not subject to judicial review because it is committed to agency discretion, emphasizing that “DACA is not simply a non-enforcement policy.”33 By erecting an application process to identify individuals who met enumerated criteria, the administration created a “program for conferring affirmative immigration relief,” not a “passive non-enforcement policy.”34 By reframing DACA as a program with component parts, each subject to legal review, the Court thus raises the stakes for the government by redefining the nature of what the administration seeks to accomplish in a way that imposes more procedural obligations and heightens the threat of judicial surveillance.35But despite finding DACA to be reviewable, the Court does not purport to evaluate the legality of its component parts on the merits. Instead, the Court finds fault with the Secretary’s own failure to decouple DACA’s two pillars—forbearance and benefits—and then evaluate the legality and viability of a forbearance-only policy.36 In finding this avenue legally available to the Secretary, Roberts is arguably under-reading the Sessions letter to Secretary Duke, which, as the Chief Justice himself emphasizes, binds the Secretary’s discretion. That letter—one page in length—does not clearly draw the distinction Roberts identifies and arguably casts legal doubt on DACA as a whole.37 But Roberts seizes on the letter’s statement that “the DACA policy has the same legal … defects that the courts recognized as to DAPA” to chart his course through the fraught case. In the litigation over DAPA, the Fifth Circuit, in Texas v. United States,38 had determined the relevant legal question to be whether the Secretary had authority to make DAPA recipients eligible for benefits, not whether he had authority to forbear from removing the class of people who fit into the program’s criteria. In other words, even under Sessions’s letter and the specter of litigation risk raised by the Fifth Circuit, the Secretary could have considered a forbearance-only version of DACA. And under bedrock administrative law—Motor Vehicle Manufacturer’s Association v. State Farm39—an agency seeking to rescind a policy must consider in its “reasoned analysis” whether alternatives “within the ambit of the existing policy” might be viable. Because forbearance was at the very core of DACA, DHS ought to have considered a policy of “forbearance without benefits,”40 and the Sessions letter simply did not foreclose that possibility.The Regents opinion thus gave the Trump administration a roadmap, albeit a lengthy one, to rescinding DACA once and for all. The agency could return to the drawing board, find the benefits prongs to be legally unfounded while maintaining a forbearance-only policy, which it then could have phased out if it had articulated policy reasons for abandoning this particular form of enforcement prioritization—reasons that adequately took into account reliance interests (more on which soon). And as noted above, in what turned out to be the waning months of the Trump administration, Chad Wolf formally started the rescission process anew, appearing to adopt a posture that threaded the Court’s needle before Judge Garaufis found his authority wanting.Today, the Court’s roadmap is no longer of use to the administration itself. But it does steer litigants (the state of Texas, for example) seeking to challenge DACA’s very legality down a clear path that the Court already understands. Despite not addressing DACA’s legality squarely, the construction and reasoning of the Court’s opinion are both highly suggestive: whereas forbearance seems safe, the future of work authorization and other benefits is in doubt. This prediction flows in part from the extensive use, bordering on adoption, by the Chief Justice of the Fifth Circuit’s reasoning in Texas v. United States, which was, after all, a lower court decision concerning an immigration relief program not actually at issue in Regents and that did not culminate in a Supreme Court decision on the merits. To be sure, Attorney General Sessions put the Fifth Circuit opinion at issue by seeming to rely on it in his DACA letter to the Secretary. But not only does Chief Justice Roberts fold Texas v. United States and the fate of DAPA into his discussion of the history of the DACA rescission, he engages in an extended exposition of the Fifth Circuit’s analysis when evaluating Secretary Duke’s determination that she had no legal discretion to continue DACA. In his explication of the decision, Chief Justice Roberts ends up making a persuasive case for the bifurcation of the program. And by suggesting that the Secretary consider this alternative, he is at the very least implying that it may well be legally available, if not legally advisable.Or put slightly differently, if the Chief Justice thought it likely that a DACA-style forbearance policy contravened the Executive’s legal duties, it would have been curious for him to send the matter back to the agency for consideration of an option doomed to fail. When the litigation over DAPA began, its challengers, not to mention critical commentators, raised doubts about the categorical forbearance it embodied—the same legal concerns Justice Thomas highlights in his Regents opinion dissenting from the APA holding, in which he emphasizes Congress has not authorized categorical exemptions to the INA’s removal requirements.41 But by the time the DAPA case had reached the Fifth Circuit, that court seemed to have accepted forbearance only as a manifestation of the Executive’s authority to prioritize removal resources.42 Indeed, for a court to reject the forbearance component of DACA truly would be a rejection of a very basic enforcement practice.43 As Adam Cox and I have argued, DACA is no less enforcement discretion for having shifted the locus of discretion to the Secretary level and away from individual agents, even as individual agents continue to make decisions.44Now that we have a presidential administration that intends to fortify rather than wind down DACA, the central note of doubt in the Regents opinion comes into play: will the courts permit the Biden administration to continue extending eligibility for work authorization (and other benefits) to recipients of deferred action under the DACA program?45 DACA’s value to its beneficiaries turns on the answer to this question. Though a promise of forbearance diminishes the uncertainty and psychological anxiety associated with the threat of deportation, eligibility for work authorization is what has made DACA truly transformative for hundreds of thousands of non-citizens without legal status who are fundamentally American. Again, Chief Justice Roberts does not address on the merits whether DHS has the authority to extend eligibility for work authorization. But he also does not take the approach of several of the lower courts, which outright rejected the Trump administration’s conclusion that DACA was unlawful. He offers as an alternative for the agency a position that jettisons work authorization for being illegal (as Sessions had concluded) but continues on with forbearance. Perhaps if the administration had gone through with such an approach and it had reached the Supreme Court a second time, Roberts and his fellow justices, upon closer inspection, would have concluded, in fact, that extension of work authorization was perfectly legal. After all, the regulations making deferred action recipients eligible to apply for EADs date back to the Reagan era.46 The administration would then have had to rescind or modify those regulations (possibly after having gone through notice and comment) and explain why it was doing so – something that, as even Justice Thomas’s dissent recognized, would be no easy task.47 But would the Chief Justice really have sent the Trump administration back for more likely fruitless memoranda drafting? Perhaps he expected them to once and for all come up with sufficiently articulated policy reasons for rescinding all of DACA, obviating the need for the Court to address the legality of DACA on the merits.If the Court was seeking to avoid a decision on the merits, the 2020 election may have foiled its plans. Again, the Biden administration has announced its intention to fortify DACA through notice and comment rulemaking. This move seems intended to add more procedural armor to the program in the hopes of preserving it through what may be a lengthy legal battle already begun by the state of Texas and some of its allies in the Southern District of Texas, where the district judge who invalidated DAPA now sits on the case.48 If and when DACA returns to the Court under this new guise, no one should be surprised if only forbearance stands at the end, leaving it to Congress to provide a meaningful anchor of belonging for the Dreamers.49 The way the Chief Justice in Regents presents the work authorization question as potentially expendable for legal reasons, and the incredulity expressed by some of the Justices at oral argument in the DAPA case back in 2015, justify characterizing the litigation risk associated with DACA as high.50If the Court does indeed come to rest on a forbearance-only version of DACA, its decision will stand alongside Regents as an example of the Court’s skepticism of administrative innovation and perhaps an insistence that expansive Executive policymaking be supported by clear and even express statutory authority. In so doing, the Court would hamstring the ability of the Executive branch to introduce humanity and stability into its management of a massive deportation regime that Congress thus far has been unable or unwilling to reform. This form of disabling the Executive in the name of accountability and the separation of powers would in turn exacerbate another feature of today’s immigration law that the Supreme Court slowly but surely has been re-enforcing in recent years, including during the October 2019 Term.In a string of decisions over the last several years, the Court has taken the inverse approach of its opinion in Regents, finding that DHS has robust power to choose how to enforce the immigration laws in light of expansive statutory delegations. In at least two startling cases, the Court outright rejects the application of meaningful and direct constitutional limits on the political branches themselves, in ways that depart from past precedent.51 And in other cases, the Court increasingly reads statutory provisions with strenuous resistance to interpretive possibilities that would be protective of immigrants’ interests, including in ways that sound in basic fairness. In other words, the real story of the Roberts Court’s immigration jurisprudence has been to empower the political branches working in tandem, with waning interest in scrutinizing how the Executive wields the power Congress has delegated to it.Th