Department of Homeland Security v. Regents of the University of California: A Dream Deferred

Cecillia D. Wang*

On June 18, 2020, the Supreme Court of the United States decided its highest-profile and most politically charged immigration case of the term, Department of Homeland Security v. Regents of the University of California.[1] The case was a hot one primarily because it pitted President Donald Trump against former President Barack Obama: Did President Trump’s secretary of Homeland Security lawfully rescind her predecessor’s Deferred Action for Childhood Arrivals (DACA) program? Regents was covered widely by mainstream media, and many reports of the Court’s decision hailed it as a decisive blow to President Trump,[2] and he initially seemed to receive it that way himself.[3] Other reports, however, noted that the decision only dealt a temporary setback to the Trump administration.[4] Across the board, the litigants and observers alike reacted with surprise.[5]

The varied reactions to the Regents decision reflected the realities of the case—both the fate of the legal arguments, which took strange twists, and the political calculations made by all involved parties, including the Supreme Court itself. Despite the 5–4 victory, despite winning over the Chief Justice to strike down the Trump administration’s rescission of DACA, Regents is a narrow victory. It remains to be seen whether it was a sufficient victory, as the political follow-through now plays out. But in a more fundamental sense, Regents is not only a narrow victory for immigrants, but ultimately may prove to be a Pyrrhic victory unless the Court significantly changes its general direction in immigration cases.

Why the doom and gloom? First, the victory on an Administrative Procedure Act (APA) claim provides a check on an unreasoned executive branch decision but obviously leaves the door open for the Trump administration to attempt once again to rescind DACA. Second, and less obviously, the respondents’ case, as it was framed for the Court by many of the respondents and even more amici who chimed in on their behalf, reinforces a “deserving immigrant” trope that harms other noncitizens, who are as much a part of U.S. society or as entitled to legal protection as the “Dreamers.” This binary trope—the innocent immigrant versus the culpable immigrant—comes at a steep cost, which is evident in the Court’s other immigration cases this term, including Dep’t of Homeland Security v. Thuraissigiam, which departs from decades of precedent to hold that a person seeking asylum who was apprehended within yards of the U.S.-Mexico border cannot obtain habeas corpus review of an expedited removal order.[6] On balance, Regents is not a substantial counterweight to other recent Supreme Court precedents that fail to apply basic judicial and constitutional norms to protect noncitizens from injury at the hands of the executive branch.

I. The Regents Decision

In Regents and its companion cases, NAACP v. Trump and Wolf v. Batalla Vidal, the Court granted certiorari to consider two questions: first, whether the secretary of Homeland Security’s rescission of DACA was subject to judicial review and, second, whether the Secretary’s rescission of DACA was lawful.[7] A third question—whether the Obama administration’s DACA policy was lawful in the first place—was not one of the questions presented but loomed large in the many briefs, as well as the Court’s opinion.

A. Reviewability Under Heckler v. Chaney

The majority of the Court held that the rescission of DACA was reviewable and rejected the government’s argument that the reversal of policy was unreviewable as an agency decision to forbear from enforcement proceedings under Heckler v. Chaney.[8] In answer to the government’s argument that a policy guiding agency forbearance should be nonreviewable for the same reason that an individual nonenforcement decision is nonreviewable under Chaney, the Court observed that “DACA is not simply a non-enforcement policy,” but instead “‘establish[ed] a clear and efficient process’ for identifying” eligible individuals, adjudicating applications, and notifying applicants of the results.[9] The Court concluded that “the [Obama administration’s] DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief” and was therefore reviewable.[10] The decision could well have gone the other way, since Secretary of Homeland Security Janet Napolitano had described DACA expressly in terms of “prosecutorial discretion” in her 2012 memorandum creating the program, in order to leave a wide berth around Congress’s power to “confer[] substantive right[s], immigration status or [a] pathway to citizenship.”[11]

Notably, on the Chaney question the Court was offered a clearer path to reviewability but unfortunately did not take or even mention it. The University of California respondents urged the Court to discern in Chaney a “critical distinction between enforcement decisions and non-enforcement decisions, noting that ‘when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights.’”[12] The University pressed a cogent argument that “eliminating a non-enforcement policy . . . paves the way for the subsequent exercise of coercive power over individuals”[13]—an important reason to distinguish the non-reviewability principle in Chaney. If the Court had adopted this logical ground for distinguishing Chaney, the Regents decision would have been a more significant victory than it was.

B. Reviewability Under the Immigration and Nationality Act

The Court made short work of the government’s statutory arguments for non-reviewability, holding that two judicial review provisions in the Immigration and Nationality Act, 8 U.S.C. §§ 1252(b)(9) and (g), did not preclude review.[14] The U.S. Department of Justice routinely asserts these statutes as jurisdictional bars in all manner of affirmative litigation challenging federal immigration policies, despite the statutes’ plainly inapplicable terms. In Regents, the Court disposed of these assertions in two paragraphs, holding that the respondents’ claims did not fall within § 1252(b)(9)’s limitation on claims “arising from any action taken or proceeding brought to remove an alien from the United States under [Title 8 of the U.S. Code]” or § 1252(g)’s “narrow” limitation on claims “arising from the decision or action of the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under [the Immigration and Nationality Act].”[15] The Court emphasized that it has “previously rejected as ‘implausible’ the Government’s suggestion that § 1252(g) covers ‘all claims arising from deportation proceedings’ or imposes ‘a general jurisdictional limitation.’”[16]

C. Administrative Procedure Act

On the merits of the respondents’ APA claim, the Court held that the rescission was arbitrary and capricious, affording DACA grantees the stingiest relief possible by remanding to the Department of Homeland Security (DHS)—in effect, giving the Trump administration a mulligan.

The Chief Justice started his merits analysis by noting that “judicial review of agency action is limited to ‘the grounds that the agency invoked when it took the action.’”[17] This was of special importance because of the procedural posture of the litigation. In one of the consolidated cases, NAACP v. Trump, the district court granted partial summary judgment for the plaintiffs and held that the September 2017 rescission memorandum by then-Acting Secretary for Homeland Security Elaine Duke (the Duke Memorandum) was “conclusory” and “insufficient to explain” the government’s reversal on DACA.[18] As a statement of reasons for the rescission of DACA, the Duke Memorandum had cited only a letter sent to her by then-Attorney General Jefferson Sessions the day before, advising her to rescind DACA on the view that it was unlawful pursuant to a 2015 decision by the U.S. Court of Appeals for the Fifth Circuit holding that a later Obama administration program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), was contrary to the INA.[19] The NAACP district court stayed its own order for ninety days to give DHS time to reissue a decision with a “fuller explanation.” In June 2018, Acting Secretary Duke’s successor, then-Secretary of Homeland Security Kirstjen Nielsen, issued a memorandum (the Nielsen Memorandum) stating that “she ‘decline[d] to disturb’ the rescission.”[20] Secretary Nielsen then purported to state her “understanding” of the Duke Memorandum as setting forth three reasons for the rescission: 1) that DACA was “contrary to law”; 2) that she had “serious doubts” about DACA’s legality; and 3) that there were multiple policy reasons for the rescission including deference to Congress on immigration relief, a preference for exercising prosecutorial discretion in a “truly individualized” way, and the importance of projecting a pro-enforcement “message.”[21]

In short, as the respondents noted, Secretary Nielsen tried to have it both ways.[22] While purporting to leave undisturbed Acting Secretary Duke’s decision and reasoning (such as it was), Secretary Nielsen simultaneously tried to set forth new reasons that were nowhere to be found in the Duke Memorandum. The Chief Justice called DHS out on this and ruled that the new reasons set forth in the Nielsen Memorandum were a post hoc rationalization, forbidden under the APA.[23]

The Court then went on to hold that the rescission of DACA was arbitrary and capricious because Acting Secretary Duke had failed to consider the possibility of terminating only the work authorization and other “benefits” flowing from a grant of deferred action under DACA, without terminating the deferred action or forbearance. The Court thus seemed to assume, casually and without discussion, that DACA was unlawful insofar as it permitted work authorization and other “benefits” to flow from a DACA grant pursuant to longstanding regulations generally applicable to deferred action grantees.[24]

The Court held that the Nielsen Memorandum was also arbitrary and capricious because she had failed to take into consideration the reliance interests created by Secretary Napolitano’s 2012 DACA memorandum.[25] The Court rejected the government’s citation to the DACA memorandum’s express disclaimer that it “conferred no substantive rights,” noting that it was “surely pertinent” but that the APA required the agency to consider whether there were reliance interests.[26] The Chief Justice went out of his way to emphasize that on remand, DHS might find that reliance was unjustified in light of the DACA memorandum’s disclaimer or that any reliance interests “are entitled to no or diminished weight,” or that they are outweighed by other “interests or policy concerns.”[27]

D. Equal Protection

Finally, a plurality of the Court (the Chief Justice joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan) rejected the respondents’ claim that the decision to rescind DACA was motivated by animus toward Latinos, as evidenced by the fact that seventy-eight percent of DACA recipients are Mexican nationals, the “unusual history behind the rescission,” and “pre- and post-election statements by President Trump.”[28] The plurality brushed aside, without even describing, the “cited statements” of the president, stating that the “relevant actors were most directly Acting Secretary Duke and the Attorney General.”[29] The Court dismissed the evidence of animus without addressing the New York-led state respondents’ arguments linking the “unusual history” of the rescission to President Trump’s expressed hostility toward Latino and particularly Mexican immigrants,[30] or the University of California’s arguments that the reasons set forth in the DHS memoranda were pretextual.[31] As Justice Sonia Sotomayor noted in her opinion concurring in part and dissenting from the Chief Justice’s equal protection analysis, the complaint should have been remanded on the low motion-to-dismiss threshold under Ashcroft v. Iqbal.[32] She said out loud what the majority apparently preferred to keep suppressed: that the President of the United States had stated publicly that Mexicans are “the bad ones . . . criminals, drug dealers, [and] rapists” and that undocumented immigrants are “animals” responsible for crime.[33]

The Chief Justice also failed to mention the strong record presented by the NAACP respondents in support of the equal protection claim, demonstrating that the rescission decision came directly from the White House, and that “[t]he agencies carried out their assigned tasks” as directed during a White House meeting.[34] The Court also ignored the New York-led state respondents’ argument that Acting Secretary Duke and Secretary Nielsen both gave false information in asserting that there had been no denials of DACA (and therefore no meaningful exercise of discretion) and that the government had failed to produce an administrative record, a basic requisite in an APA case,[35] and the evidence in the California case that the Trump administration “terminated the [DACA] policy after private deliberations with the state plaintiffs [led by Texas] in the DAPA litigation (which are not reflected in the proffered administrative record).”[36] Under the Court’s keystone equal protection standards, these facts were probative evidence supporting the respondents’ equal protection claims.[37]

II. Weighing the Victory

When the Regents decision was handed down, many of the respondents’ and other immigrant advocates’ declarations of victory were notably muted. Immigrants’ advocates, including some of the respondents’ counsel, declared a mixed result and muted their celebrations with calls for further action, in recognition of the re-rescission that would likely flow from the Court’s narrow opinion.[38] Justice Brett Kavanaugh underscored this dynamic set up by the majority, observing in his dissenting opinion that “the only practical consequence of the Court’s decision to remand appears to be some delay.”[39]

And indeed, the Regents decision has, so far, not amounted to a substantial victory for DACA-eligible people. Although the Trump administration has not yet re-rescinded DACA altogether, it has already substantially curtailed the program. In a July 28, 2020, memorandum, Acting Secretary for Homeland Security Chad Wolf announced that the government would reject all new DACA applications, would no longer grant any applications for advance parole (a mechanism to permit deferred action grantees to travel outside the United States without fear of being denied entry), and would limit renewals of deferred action for current DACA grantees to only one year rather than the two years provided under the 2012 DACA memorandum.[40] The next day, Acting Deputy Secretary of Homeland Security Ken Cuccinelli confirmed that a complete re-rescission is, at the very least, still on the table, saying that Acting Secretary Wolf’s memorandum was an “interim action” and refusing to rule out full termination.[41]

To be sure, Regents is a victory, albeit a narrow one with uncertain consequences. Forced to reconsider the rescission of relief for Dreamers, who enjoy overwhelming popular support,[42] in an election year, the Trump administration has so far stopped short of full rescission. Thus, Justice Kavanaugh may have been wrong when he predicted that the remand to DHS would only result in delay;[43] and the NAACP respondents were correct when they argued that “vacatur is not an empty gesture.”[44] The APA’s requirement of transparency in agency decision making matters, because political accountability matters. Recognizing the popularity of Dreamers, and perhaps even feeling sympathy himself, the president has been forced to play both to the sizable center, which supports Dreamers, and to the virulently anti-immigrant and white nationalist fringe.

Through the attorney general and the secretary of Homeland Security, the president attempted to punt the fate of DACA grantees to the Supreme Court, but the Court refused to play. During the current administration, no branch of the federal government has proved willing either to take meaningful steps to protect Dreamers or to risk the scorn of the majority of U.S. voters by accepting responsibility for leaving them without any relief. In his dissenting opinion, Justice Clarence Thomas wrote that the majority opinion “must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision [to strike down DACA as contrary to the INA].”[45] He was half correct. Regents is a highly politicized decision, calculated to evade accountability, just as the president attempted to shift the downside risk of rescinding DACA to the courts (through reliance on the Fifth Circuit’s ruling on DAPA in Texas v. United States and the Supreme Court’s affirmance of that ruling). As Justice Sotomayor observed in her separate opinion, the majority had to ignore the Court’s own Iqbal pleading standard in order to preclude the respondents’ equal protection claims at the motion-to-dismiss stage.[46]

The Regents decision thus kicks the can farther down the road for Dreamers. It has also left them with a diminishing measure of relief, as the government grudgingly confers year-to-year reprieves from removal for over 800,000 of them, and they and their allies work to effect a favorable election outcome, a change in executive policy, and more permanent congressional action.

III. The Price of Victory

As a narrow win for DACA grantees, Regents is cold comfort. Nothing in Regents mitigates the Court’s disastrous rulings in other recent immigration cases. To the contrary, the stinginess of the Regents decision underscores the Supreme Court’s deference to the executive branch on immigration matters and its hostility toward noncitizens. Indeed, the Regents decision might be a Pyrrhic victory for three reasons.

First, the Chief Justice’s gratuitous rejection of the respondents’ equal protection claims—with Justice Sotomayor the lone dissenting voice—repeats the travesty of his majority opinion two terms earlier in Trump v. Hawai‘i,[47] which reversed decisions by the Fourth and Ninth Circuits striking down the third version of President Trump’s Muslim ban. In Trump v. Hawai‘i, the Court closed its eyes to the voluminous evidence that President Trump was carrying out his campaign promise to institute a “complete shutdown” of Muslim immigration to the United States:

Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.[48]

The Court thus deliberately disregarded the president’s statements that, in the Fourth Circuit’s words, “drip[ped] with religious intolerance, animus, and discrimination”[49] expressly for the purpose of enlarging presidential power when “national security” is invoked in the immigration arena.

Regents sadly echoes Trump v. Hawai’i. Confronted with the president’s undeniable racist statements, in this case against Mexicans and Latinos rather than Muslims, the Chief Justice again reasoned, contrary to the record evidence, that the relevant decisionmakers were the secretaries for Homeland Security, and not the president, and pointed to the lack of any racist statements by the cabinet officials. In doing so, the Chief Justice adopted the solicitor general’s arguments, which did not even mention President Trump’s racist statements that the plaintiffs relied upon.[50] The Chief Justice also failed to acknowledge the clear evidence in the record that the decision was in fact made by the White House and merely executed by the attorney general and secretary for Homeland Security. The Chief Justice’s recitation of the history of DACA rescission begins with Attorney General Sessions’s letter to Acting Secretary Duke in 2018, and ignores the White House meeting that preceded both cabinet secretaries’ actions to rescind DACA.[51] The Chief Justice’s opinion on the equal protection claim in Regents thus provides good material for those who view the Court with cynicism.

Second, as noted above, the Court’s APA ruling imposes little constraint on executive power. The Regents majority did impose a measure of accountability on the secretary of Homeland Security, as precedents forbidding post hoc rationalizations of agency action required. While the remand has, so far, turned out to make a difference, the APA section of the Chief’s opinion is hardly a strong check on executive power. The Court’s failure even to acknowledge the government’s incorrect factual submissions and refusal to produce discovery, even two years into the litigation, further encourage and abet Justice Department litigation tactics that are aggressive at best, and bad faith at worst.

Third, the framing of DACA, the litigation to save it, and the victory, all reinforced a narrative that empowers the great damage the Supreme Court has done in the immigration law arena in other cases. Throughout the convoluted history of DACA from 2012 to 2020, most of those who advocated on behalf of the Dreamers focused on their lack of culpability, even as immigrant youth-led organizations themselves deliberately rejected that narrative framework.[52] Secretary Napolitano’s original 2012 memorandum described the intended beneficiaries of DACA as “young people who were brought to this country as children and know only this country as home . . . [and] lacked the intent to violate the law.”[53] President Obama famously referred to Dreamers in terms that also played up their lack of volition in coming to the United States:

These are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag. They are Americans in their heart, in their minds, in every single way but one: on paper. They were brought to this country by their parents—sometimes even as infants—and often have no idea that they’re undocumented until they apply for a job or a driver’s license, or a college scholarship.[54]

Many of the parties and amici supporting DACA grantees in the litigation also emphasized the economic and societal value of Dreamers. The plaintiffs-respondents included not only individual DACA grantees like Martín Batalla Vidal, the lead plaintiff in one of the cases filed the Eastern District of New York, and civil rights organizations NAACP and Make the Road New York, but also the University of California and Princeton, twenty states in two district court actions led by New York and California, the District of Columbia and the City of San Jose (California), labor unions, and the Microsoft Corporation. Amici filing briefs in support of the respondents included an additional six states or governors, 109 municipalities, Apple, 143 other U.S. businesses, numerous additional universities and labor unions, and dozens of religious institutions including the U.S. Conference of Catholic Bishops. Ted Olsen, the conservative solicitor general in the George W. Bush administration now in private practice, argued the case for the respondents alongside Michael Mongan, the solicitor general of California. These briefs argued, for example, that “DACA enabled more than 825,000 individuals to come out of the shadows, participate in the economy, and contribute to U.S. companies and the economy, which benefits us all.”[55]

While these arguments about the Dreamers’ productivity and lack of culpability as a group certainly reveal an essential truth and reflect the genuine interests of the many various U.S. governmental and business institutions who rallied to the DACA grantees’ side in the Regents litigation, they unwittingly reinforce a dangerous thematic trap that has developed in the Supreme Court’s jurisprudence affecting immigrants and noncitizens. This trap paints “Dreamers” in an innocent light and places them in a semi-protected safe zone (because of their popular support) but paints others—newly arrived migrants seeking asylum, or Mexican nationals living in binational communities spanning the border, or longtime lawful permanent residents who are defending against removal charges based upon criminal convictions—as lawbreakers who do not deserve even the most basic protections against overwhelming government power.

To trace this theme, one need only look to two other cases involving U.S. immigration enforcement in the Court’s October 2019 Term, Dep’t of Homeland Security v. Thuraissigiam,[56] which concerned whether the Suspension Clause guarantees habeas review of expedited removal orders, and Hernández v. Mesa,[57] a Bivens action by the estate of a fifteen-year-old Mexican boy killed by a U.S. Border Patrol agent in a cross-border shooting, allegedly without any justification. Neither Vijayakumar Thuraissigiam, a Sri Lankan Tamil seeking asylum in the United States, nor the parents of Sergio Adrián Hernández Güereca, had nearly as large an army of supporters as the DACA grantees in Regents, even though both their cases raised fundamental issues of due process, personal liberty, and executive branch accountability. Neither of them could claim to be Americans already “except on paper.” Neither had a groundswell of popular support in the United States. But they both deserved a chance to seek justice in the courts and were denied that chance.

In Hernández v. Mesa, the Court affirmed the dismissal of Sergio Hernández’s parents’ case on the grounds that his killing, which involved legally routine use-of-force questions, is a “new context” to which the Bivens remedy cannot be extended—just because the bullet struck him on the Mexican side of the border— and that “foreign relations and national security implications” were special factors precluding a Bivens remedy.[58] Despite the fact that the case reached the Supreme Court on a grant of the defendant’s motion to dismiss, and thus the courts should have taken as true the parents’ factual allegations that Sergio had been shot while playing with friends, the Court credited the government’s arguments about foreign affairs and national security. This narrative is at odds with the reality of communities at the border.[59] It also makes Hernández one in a long line of cases in which the modern Court has adopted congressional immigration hawks’ framing of immigrants as criminals and national security threats and warped its broader constitutional jurisprudence as a result.

Thuraissigiam is another immigration case in which the Court departed from decades of its precedents in order to rule against a noncitizen. Mr. Thuraissigiam is a Sri Lankan Tamil who fled to the United States after being abducted and beaten severely. He was apprehended by Border Patrol agents just inside the U.S.-Mexico border and placed in expedited removal proceedings under 8 U.S.C. § 1225(b)(1)(A), a form of summary removal created in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), with truncated administrative proceedings and strictly limited Article III court review. Writing for the majority, Justice Samuel Alito reversed the Ninth Circuit and held that the Suspension Clause in Article I of the Constitution[60] did not guarantee federal court review of the expedited removal order against Mr. Thuraissigiam.[61] Justice Alito brushed aside the Court’s prior decision in INS v. St. Cyr,[62] which applied the doctrine of constitutional avoidance to construe another of IIRIRA’s judicial review provisions to permit federal court review. His majority opinion only states that St. Cyr “reaffirmed” “that the writ could be invoked by aliens already in the country who were held in custody pending deportation,” without actually explaining how St. Cyr’s Suspension Clause analysis should be distinguished.[63] As Justice Sotomayor wrote in dissent, joined by Justice Kagan, the majority’s Suspension Clause ruling “flouts over a century of this Court’s practice” of hearing “indistinguishable” cases that “fall within the heartland of habeas jurisdiction going directly to the origins of the Great Writ.”[64]

The Court also went out of its way to opine on a due process argument that Mr. Thuraissigiam never raised: “that IIRIRA violates his right to due process by precluding judicial review of his allegedly flawed [expedited removal proceeding].”[65] The Court gratuitously extended the longstanding “entry fiction”—under which noncitizens who have effected an entry into the United States are entitled to the protections of the Due Process Clause while those who are apprehended at the border are entitled only to whatever process Congress has provided by statute—to hold that the judicial review provision did not violate due process.[66] Once again, Justice Alito ignored the fact that Mr. Thuraissigiam was unquestionably inside the United States when he was apprehended. Justice Sotomayor pointed out in dissent that this due process ruling was contrary to over a century of Supreme Court precedents holding that “[n]oncitizens in this country . . . undeniably have due process rights” under the Constitution, as opposed to those seeking admission at a port of entry, who are limited to the process afforded by Congress.[67]

Tellingly, in Thuraissigiam, as in Hernández, the majority opinion reinforces a narrative of lawbreaking. Justice Alito opens the opinion with the sentence, “Every year, hundreds of thousands of aliens are apprehended at or near the border attempting to enter this country illegally.” He asserts that “[m]ost asylum claims . . . ultimately fail, and some are fraudulent.”[68] Thuraissigiam and Hernández demonstrate the ways in which a narrative of immigrant lawlessness and criminality entered the U.S. immigration laws through a congressional act in 1996 and has thoroughly permeated the Court’s immigration decisions. Regents demonstrates how immigrant advocates who buy into that narrative, by distinguishing some immigrants as innocent in contrast, have little to gain and much to lose.

***

To be clear, the Court’s Regents decision represents a hard-won victory by immigrants and their allies. The extraordinarily broad coalition of respondents stopped the Trump administration from completely terminating the DACA program, which was no small feat in light of the many legal hurdles. But as a victory, the Regents decision is an anomaly among the Court’s immigration precedents, and the narrative that many of the respondents advanced in defending DACA fits all too neatly into a larger context of Supreme Court decisions that leave noncitizens without meaningful protection against even the grossest abuses of executive power. If Regents is, as Justice Thomas opined, a political trade-off,[69] it is a bad deal for immigrants. Greisa Martínez Rosas of United We Dream put it best: “[O]ur fear, our pain, and our lives must not be used to shackle our parents and ban those seeking refuge; we must not be used to tear apart the moral fabric of this country.”[70]

From Vijayakumar Thuraissigiam’s expedited removal without habeas corpus review and the Güereca Hernández family’s dashed hopes for a measure of redress, to the Court’s 2003 decision in Demore v. Kim approving the “brief” detention without a hearing of immigrants defending against removal[71]—the only context in which the Court has ever held that the Due Process Clause permits civil detention without any individualized hearing—the Court has refused to afford basic constitutional protections to noncitizens. Until the Court recognizes that noncitizens, regardless of their perceived innocence or culpability, are entitled to basic protections of due process and equal protection, Regents is only a small step forward on the path to real victory.

 

* Deputy Legal Director and Director of the Center for Democracy, American Civil Liberties Union. The sub-title for this piece refers to Langston Hughes, Harlem, in The Collected Poems of Langston Hughes 427 (Arnold Rampersad, ed. Vintage Classics 1994) (1951).

[1] Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020); see, e.g., Adam Liptak & Michael D. Shear, Trump Can’t Immediately End DACA, Supreme Court Rules, N.Y. Times (June 18, 2020) (“The Supreme Court ruled Thursday that the Trump administration may not immediately proceed with its plan to end a program protecting about 700,000 young immigrants known as Dreamers from deportation, dealing a surprising setback to one of President Trump’s central campaign promises.”).

[2] Id.

[3] John Wagner, Trump Lashes Out at Supreme Court, Tries to Turn DACA Decision into a Campaign Issue, Wash. Post (June 18, 2020) (reporting on Trump’s tweets criticizing Regents as “‘shotgun blasts into the face’ of conservatives” and wondering if the Court “doesn’t like [him]”).

[4] See Liptak & Shear, supra note 1; Robert Barnes, Supreme Court Blocks Trump’s Bid to End DACA, a Win for Undocumented ‘Dreamers’, Wash. Post (June 18, 2020).

[5] Barnes, supra note 4 (describing Democratic members of Congress as being “as stunned as Trump seemed to be” with the decision).

[6] Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020).

[7] Regents, 140 S. Ct. at 1901.

[8] Id. at 1906 (citing Heckler v. Chaney, 470 U.S. 821 (1985)). Justice Alito wrote separately and alone to opine that he would hold the case unreviewable under Chaney. Id. at 1932 (Alito, J., concurring in judgment and dissenting in part).

[9] Id.

[10] Id.

[11] Memorandum from Janet Napolitano, Sec’y of Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs and Border Prot. et al. (June 15, 2012).

[12] Brief for Respondents Regents of Univ. of Cal. et al. at 23‒24, Regents, 140 S. Ct. 1891 (Nos. 18‒587, 18‒588, 18‒589).

[13] Id. at 24.

[14] Regents, 140 S. Ct. 1907.

[15] Id.

[16] Id. (quoting Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999)).

[17] Id. (quoting Michigan v. EPA, 576 U.S. 743, 758 (2015)).

[18] See id. at 1904 (citing NAACP v. Trump, 298 F. Supp. 3d 209, 243 (D.D.C. 2018)).

[19] See id. at 1902 (citing Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015)). As noted, an evenly divided Supreme Court affirmed the Fifth Circuit’s decision on DAPA without an opinion. Id. at 1903 (citing United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam)).

[20] Id. at 1904 (citing appendix to the certiorari petition).

[21] Id.

[22] See, e.g., Brief for District of Columbia Respondents at 2, Regents, 140 S. Ct. 1891 (Nos. 18‒587, 18‒588, 18‒589). The Court’s opinion does not mention one oddity about DHS’s decisional sequence: Why didn’t Secretary Nielsen simply issue a new memorandum with fulsome reasoning? The respondents in the D.C. Circuit case put it plainly: “[The district court] invited the Government to issue a new rescission decision based on an appropriate administrative record assembled for that purpose. The Government instead elected to re-defend the Duke Memorandum, thereby steering the case toward what it perceived as a path to faster review. The result is a jumble of conclusory, post hoc policy justifications made for litigation advantage, resting on an old administrative record assembled for an entirely different purpose.” Id. (emphasis added).

[23] Regents, 140 S. Ct. at 1908‒09.

[24] Id. at 1912‒13.

[25] Id. at 1913‒14.

[26] Id. at 1913.

[27] Id. at 1914.

[28] Id. at 1915‒16.

[29] Id. at 1916.

[30] Brief for Respondents New York et al. at 53‒56, Regents, 140 S. Ct. 1891 (Nos. 18‒587, 18‒588, 18‒589).

[31] Brief for Respondents Regents et al., supra note 12, at 56‒58.

[32] Regents, 140 S. Ct. at 1917 (Sotomayor, J., concurring in part, concurring in judgment in part, dissenting in part) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

[33] Id. at 1917 (quoting Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 276 (E.D.N.Y. 2018)).

[34] Brief for District of Columbia Respondents, supra note 22, at 12.

[35] Brief for Respondents New York et al., supra note 30, at 32‒33, 52.

[36] Brief for Respondents California et al. at 54, Regents, 140 S. Ct. 1891 (Nos. 18‒587, 18‒588, 18‒589); Brief for DACA Recipients et al. at 19‒20, Regents, 140 S. Ct. 1891 (Nos. 18‒587, 18‒588, 18‒589).

[37] Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266 (1977) (holding discriminatory intent “demands a sensitive inquiry into such circumstantial and direct evidence” which may include legislative or administrative history); cf. also Masterpiece Cakeshop Ltd. v. Colo. Civil Rts. Comm’n, 138 S. Ct. 1719, 1731 (2018) (applying same standard in First Amendment Free Exercise Clause case).

[38] See, e.g., Post-Supreme Court Decision DACA Guidance, United We Dream (June 18, 2020) (United We Dream advising DACA recipients to apply “now” because of risk of Trump administration again terminating the policy after the Supreme Court’s decision); see also Monumental Victory for DACA Recipients Before Supreme Court in Wolf v. Batalla Vidal,Nat’l Immgr. L. Ctr. (June 18, 2020) (National Immigration Law Center calling the Supreme Court decision a “monumental victory” but also noting “potential for future attacks on DACA recipients” and need for legislative fix).

[39] Regents, 140 S. Ct. at 1935 (Kavanaugh, J., concurring in judgment in part and dissenting in part).

[40] Memorandum from Chad Wolf, Acting Sec’y, Dep’t of Homeland Sec., to Mark Morgan, Senior Official Performing the Duties of Comm’r, U.S. Customs and Border Prot. et al. (July 28, 2020).

[41] Priscilla Alvarez, DACA Changes Are Temporary, Trump Administration Officials Say, CNN (July 29, 2020).

[42] See Anita Kumar, Poll: Trump Voters Want to Protect Dreamers, Politico (June 17, 2020) (reporting that sixty-eight percent of Republicans, seventy-one percent of conservatives, and sixty-nine percent of people who voted for Trump in 2016, favor protecting Dreamers from deportation).

[43] Regents, 140 S. Ct. at 1935 (Kavanaugh, J., concurring in part and dissenting in part).

[44] Brief for District of Columbia Respondents, supra n. 22, at 3.

[45] Regents, 140 S. Ct. at 1919 (Thomas, J., concurring in judgment in part and dissenting in part).

[46] Id. at 1917 (Sotomayor, J., concurring in part, concurring in judgment in part, dissenting in part).

[47] Trump v. Hawaii, 138 S. Ct. 2392 (2018).

[48] Id. at 2418.

[49] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 572 (4th Cir. 2017) (en banc) (affirming preliminary injunction against second version of Muslim ban).

[50] Brief for Petitioners at 55‒56, Regents, 140 S. Ct. 1891 (Nos. 18‒587, 18‒588, 18‒589).

[51] See Brief for District of Columbia Respondents, supra note 22, at 12‒13 (setting forth record evidence of sequence of events beginning with August 24, 2017, meeting with cabinet secretaries and agency heads at the White House, at which an agreement was reached to end DACA); see also Brief for Respondents Regents et al., supra note 12, at 57‒58 (noting record evidence that the administration rescinded DACA “to gain leverage in negotiations [with Congress] for a border wall and other immigration matters” and President Trump’s own statements on the subject).

[52] See, e.g., Sheridan Aguirre, Immigrant Youth to Trump’s White Supremacist Proposal: “No.” United We Dream (Jan. 25, 2018) (“Trump and Stephen Miller killed DACA and created the crisis that immigrant youth are facing. They have taken immigrant youth hostage, pitting us against our own parents, Black immigrants and our communities in exchange for our dignity.”); see also Press Release, Building on the Successes of DACA to Include Our Parents, United We Dream, June 5, 2014.

[53] Memorandum from Janet Napolitano, supra note 11.

[54] President Barack Obama, Remarks on Immigration (June 15, 2012).

[55] Brief for 143 Bus. Ass’ns and Cos. as Amici Curiae Supporting Respondents, Regents, 140 S. Ct. 1891 (Nos. 18‒587, 18‒588, 18‒589).

[56] Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020). The author was one of the attorneys for Vijayakumar Thuraissigiam.

[57] Hernández v. Mesa, 140 S. Ct. 735 (2020).

[58] Id. at 735.

[59] See Brief for Am. Civil Liberties Union et al. as Amici Curiae Supporting  at 7‒8, Hernández, 140 St. Ct. 735 (No. 17‒1678) (setting forth facts of cross-border shooting of another Mexican teenager, “J.A.,” and describing the place of his life and death, Nogales, Arizona, and Nogales, Sonora, as “one town divided by the border fence”).

[60] U.S. Const. art I., § 9, cl. 2.

[61] Thuraissigiam,140 S. Ct. at 1969.

[62] I.N.S. v. St. Cyr, 533 U.S. 289 (2001).

[63] Thuraissigiam, 140 S. Ct. at 1981.

[64] Id. at 1993 (Sotomayor, J., dissenting).

[65] Id. at 1981.

[66] Id. at 1982–83 (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953); Landon v. Plasencia, 459 U.S. 21, 32 (1982)).

[67] Id. at 2012 (Sotomayor, J., dissenting) (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886); Zadvydas v. Davis, 533 U.S. 678 (2001)).

[68] Thuraissigiam, 140 S. Ct. at 1963.

[69] Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1919 (2020) (Thomas, J., concurring in judgment in part and dissenting in part) (“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.”).

[70] Aguirre, supra note 52 (reacting to Trump administration’s January 2018 legislative proposal to trade immigration relief for Dreamers for cuts to family-based immigration, termination of the diversity visa program, and increased funding for immigration enforcement).

[71] Demore v. Kim, 538 U.S. 510 (2003).