DACA ruling - a huge win. What are its implications for other civil rights cases?
This is huge! More badly-needed good news. Ever since Monday's incredible SCOTUS victory I've been holding my breath about DACA - but here we are!
I want to talk a little bit about the legal analysis in this case and its implications for a range of other issues – but first, it’s essential to celebrate what the tenacity of undocumented and unafraid youth and dedicated legal advocates has achieved here. This is a game-changer for hundreds of thousands of young people, their families, and communities. There is so much more to do to achieve permanent relief for undocumented Americans and a just immigration system, but this is a big victory.
With that, here are some initial thoughts on the Court’s reasoning and possible implications for other civil rights contexts.
Wait, what exactly did they rule about DACA and what happens now?
To the great anger of the dissenters, the Court actually declines to rule on the whether the government had the legal authority to establish DACA’s system of non-enforcement for Dreamers. The Court says it does not reach this issue, in essence, because of shoddy lawyering by the Justice Department that did not properly tee up the issue.
As the dissenters repeatedly hammer home, all the Justices seem to agree that whether or not the government had authority to establish DACA, it certainly had authority to rescind it. But how, when, and why? Agencies can abuse their discretion, and the Administrative Procedure Act and the Constitution place limits on it, which is what this decision is really about.
Here, SCOTUS rules 5-4 that the government failed to explain the rationale for, timing of, and manner in which it chose to rescind DACA. This is much like what happened in the Census case, New York v. Department of Commerce – another APA decision by the Chief Justice. (It’s actually curious that the majority opinion does not cite Department of Commerce once, though Justice Sotomayor does.)
As in that case, technically the case is remanded back to the agency and it can have a do-over. In the Census case, the decision’s timing made it essentially impossible for the agency to actually follow through on that do-over. It’s less clear if they’ll have time for a do-over here – there’s an election in a few months, agency actions can take months, and protecting Dreamers is politically popular. But Trump has already said they’re going to try— after all, xenophobia and never admitting defeat are core to the Trump platform. I’m no immigration expert, so you should probably follow folks who’ve been at the center of this fight on that.
Could the DACA and Census rulings be deployed to undermine other Trump policies? And also against the next President’s agenda?
The Court’s core holding here is that the way in which the Trump Administration went about rescinding DACA was “arbitrary and capirious” under the APA, for two main reasons: (1) even if the government now thought DACA was not legally authorized, and indeed even if it were right, it still must justify how it decides to change the program, and (2) the government must seriously consider how people could be harmed because they relied on an existing program, even if they had no legal right to it.
To think about how this might apply in other contexts, consider the HHS rule implementing the Health Care Rights Law (Section 1557 of the Affordable Care Act). HHS adopted one rule in 2016. Under Trump, HHS then decided that the ACA no longer protected trans people from discrimination, and that a ruling from a Texas district court that vacated parts of the rule required them to change it. Even if the Trump Administration were right that the ACA didn’t protect trans patients, it still had to consider exactly how to change the numerous provisions of the rule relating to sex discrimination. HHS explained that it chose to repeal all the provisions relating to gender identity, gender transition, transgender status, and even the much broader issue of sex stereotyping from the 2016 rule. HHS said there was no real harm and no real cost in doing this, because trans people had no legal right to expect these protections, and they certainly couldn’t have expected them after the Texas court ruling.
Of course, those HHS rule changes are almost certainly meaningless after Monday’s Bostock/Zarda/Stephens ruling, and the two situations aren’t exactly the same. Still, the DACA ruling’s reasoning makes clear that even if SCOTUS had not fully reached the sex discrimination issue, or even if the Trump Administration were right about it, that wouldn’t justify their choice to fully repeal a whole bunch of sex discrimination provisions, without explaining clearly how each change was justified and considering their effects on trans patients who were protected under the 2016 rule. These APA issues may now take a backseat in challenges to these parts of the HHS rule change because HHS was completely wrong about the law—but otherwise, they might still have found themselves in a similar spot to DHS here.
Although the specific points of APA analysis are slightly different, the Chief Justice’s opinions in DHS v. Regents of UC and New York v. Department of Commerce both rely on, and arguably breathe some new life into, the Court’s landmark ruling in Motor Vehicle Mfrs. Assn. v. State Farm, 463 U. S. 29, 43 (1983). State Farm holds that when an agency reverses its own established policy, it must clearly explain why it did so, and why it now rejects it own prior reasoning; the government cannot just say, “We just changed our mind.”
While not unique to the Trump Administration, agencies just not doing their homework and showing their work is—to put it mildly—more common these last few years. (While I haven’t researched the matter, it would also be interesting to see whether such APA arbitrary-and-capricious challenges have overall become more frequent during the Trump years or were even increasing before that.)
These principles could be used to attacked other questionable Trump Administration policies, where the government is seeking to make broad changes to policies and programs based on a changed interpretation of the law. One could imagine this case being cited in the current litigation over the 2019 HHS “Conscience” rule, for example.
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As a side note, the Court also held that the government can’t keeping adding new justifications for its decisions once it makes them—in this case, by supplementing the DACA rescission announcement with a new DHS memo further justifying it after an initial court ruling against them. SCOTUS notes that DHS could have gone back and issued a new rule or memo rescinding DACA in a different way, but chose instead to simply issue a memo adding new reasons for the same policy. This makes for an interesting comparison with Doe v. Trump, where the D.C. Circuit held that the Administration did in fact issue a new policy with new rationales with respect to the trans military ban.
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Of course, all administrations reverse some prior policy decisions, and the same APA standards will be applied to the next Administration. Indeed, while the APA and similar statutes have long been wielded by consumer and environmental advocates, and with growing frequency by immigration, LGBTQ, and other civil rights advocates, they will surely be asserted against more progressive policies in the future. After all, conservative justices and conservative legal groups alike are seeking to ramp up an all-out assault on federal agencies’ ability to protect patients, workers, consumers, and the climate.
Yet it’s interesting that justices like Kavanaugh, who were appointed in part to dismantle the “administrative state,” are advocating for a very expansive view of agency discretion in these cases. While one should never estimate some people’s capacity for intellectual inconsistency plain and simple, you don’t have to be an admin law geek (I am maybe a bit of a geek, not quite an expert) to suspect that these APA doctrines are not the main tools Kavanaugh and others have in mind for that dismantling. After all, the APA does more to govern agency discretion than to limit it, and progressive policies should usually prevail if there is a colorable grant of authority from Congress and the agency does its homework to show a policy will benefit the public. Enemies of progressive regulation have their eye on much bigger ordnance, like a revived nondelegation doctrine, to put huge areas of policymaking off-limits.
Still, advocates should remember that administrative law doctrines can potentially cut both ways. Advocates pushing federal agencies to take bold progressive actions in the future will be well served to make sure those agencies show their work so it will stand up in increasingly conservative federal courts.
On Equal Protection, “animus” is often in the eye of the beholder
The role of “animus” in Equal Protection cases has been hotly contested for decades - think of Romer v. Evans (1996), when SCOTUS ruled that a Colorado ballot initiative was unconstitutional because it was motivated by nothing more than antipathy toward queer people, over a fiery Scalia dissent.
That argument echoes in daily debates today, with conservatives arguing that progressives are improperly attempting to remove a wide swath of policymaking and political opinion from the realm of politically and constitutionally permissible debate by calling anyone who disagrees with them bigots. As many smarter people than me have explained, this has a way of changing the subject from systemic oppression and tangible harms to marginalized communities to questions of individual character, moral virtue, and honor.
This has long been a consistent feature of the Supreme Court’s jurisprudence on race and voting rights, race and affirmative action, race and everything, as well as LGBTQ equality and—especially recently—immigration. The Muslim ban and Census cases, as well as the marriage equality and Masterpiece Cakeshop cases, all featured in one way or another a debate about whether policies were motivated by animus, and whether it was proper to accuse political leaders and their constituents of being prejudiced. I don’t really care whether every Colorado voter in the Romer case should be called words like homophobic or bigot—it doesn’t matter, because they clearly chose to single out queer people for disfavored treatment, with no other apparent reason.
Again, smarter people than me have argued this is just one symptom of how our U.S. Equal Protection and civil rights jurisprudence has focused too narrowly on questions of discriminatory intent (and the moral virtue questions accompanying it) rather than on a principle such as antisubordination. At the same time, in cases where the Executive branch does have broad discretion—as in the DACA and Muslim ban cases—using that discretion with an intent to harm a stigmatized group has got to violate Equal Protection, and these debates become hard to avoid, forcing those pressing such claims to try to somehow get past these distractions to the core matter of whether that group was targeted and other reasons are pretexts.
Here we go again. Fortunately, the DACA ruling rises and falls on the APA, with no majority opinion on the Equal Protection question. But sadly, eight justices don’t seem to take the Equal Protection claim seriously, with Justice Sotomayor the lone holdout. As with the Muslim ban case, Roberts’s opinion (for himself, Ginsburg, Breyer, and Kagan!) splits hairs about who said what and when (which you can almost always do in this type of case). Sotomayor said there was enough smoke here—a sudden reversal after saying they wouldn’t do it, a policy disproportionately harming the same group of people the President made repeated derogatory statements about in the preceding months—to let the plaintiffs go to discovery and try to get more facts to show intent and pretext.
The DACA plaintiffs have happily won on the APA even if they never got the chance to prove their Equal Protection case. In the still-pending trans military ban cases—and some other challenges to Trump policies—the parties have been in pitched discovery battles partly trying to prove pretext and discriminatory intent. None of the justices’ statements on Equal Protection in the DACA case commanded a majority, but they are sure to be cited in those ongoing battles.