Fifth Amendment — Due Process Clause - Harvard Law Review

Fifth Amendment -- Due Process Clause -- Equal Protection -- Department of Homeland Security v.

Regents of the University of California

The Trump Administration's hostility to immigration has raised new questions about whether and how far courts should look past government actors' stated intentions.1 In particular, advocates have pointed to the President's statements on the campaign trail and on Twitter when challenging the Administration's stated rationales as pretextual2 and its actions as unconstitutional in court.3 Last Term, in Department of Homeland Security v. Regents of the University of California,4 the Supreme Court invalidated the rescission of the Department of Homeland Security's (DHS) policy of Deferred Action for Childhood Arrivals (DACA).5 After careful review of the agency record, the Court ultimately found that the agency failed to adequately explain the basis for its decision and to consider reliance interests.6 In contrast, the Court dismissed the argument that the decision to rescind DACA was motivated by a desire to discriminate against Latinos.7 The Court's brief analysis of the equal protection claims both construes precedent narrowly and reveals underlying tensions latent in the Court's conception of the President's role in agency decisionmaking.

In June 2012, DHS announced DACA: a plan to suspend enforcement of "immigration laws against certain young people who were brought to this country as children and know only this country as home."8 The memorandum introducing the DACA program also provided that the people shielded from deportation would qualify for work authorization and benefits like Social Security and Medicare, per existing DHS regulations.9 Two years later, DHS announced Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, which extended deferred action and benefits to the parents of both U.S.

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1 See Katherine Shaw, Speech, Intent, and the President, 104 CORNELL L. REV. 1337, 1338? 39 (2019).

2 See Complaint ?? 1, 106, 109, 183, New York v. U.S. Dep't of Com., 351 F. Supp. 3d 502 (S.D.N.Y. 2019) (No. 18-cv-05025).

3 See Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1915 (2020) (plurality opinion); Trump v. Hawaii, 138 S. Ct. 2392, 2416?17 (2018).

4 140 S. Ct. 1891. 5 Id. at 1901. 6 Id. at 1915. 7 Id. at 1915?16 (plurality opinion). 8 Memorandum from Janet Napolitano, Sec'y of Homeland Sec., to David V. Aguilar, Acting Comm'r, U.S. Customs & Border Prot., et al. 1 (June 15, 2012), assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf [https:// 5L5T-Z3PT]. 9 See id. at 3; Regents, 140 S. Ct. at 1901?02.

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citizens and lawful permanent residents.10 The memo creating DAPA also expanded the scope of DACA.11

Twenty-six states brought suit to enjoin DAPA and the expansion of DACA.12 The District Court for the Southern District of Texas imposed a nationwide preliminary injunction barring implementation of the program.13 A panel of the Fifth Circuit affirmed over a dissent.14 The Fifth Circuit rejected the argument that DAPA was "exempt" from the Administrative Procedure Act's15 (APA) notice-and-comment requirements.16 Because there was a substantial likelihood that DAPA was effectively binding on DHS officials, and because DAPA conferred substantive rights on its beneficiaries, the Fifth Circuit reasoned, DAPA was not a "general statement[] of policy," and notice and comment were required under the APA.17 The Fifth Circuit further held that DAPA was unreasonable under the Immigration and Nationality Act18 (INA).19 The Supreme Court "affirmed by an equally divided Court."20

Following the 2016 presidential election, the Trump Administration rescinded DAPA.21 Attorney General Sessions then advised DHS to rescind DACA as well, invoking the Fifth Circuit's decision as confirmation that DACA was also illegal.22 In a memorandum citing the Attorney General's letter and the Fifth Circuit's decision, Acting Secretary of Homeland Security Elaine Duke "terminated" DACA.23

Three groups of plaintiffs challenged her decision under the APA and the Due Process Clause of the Fifth Amendment in courts across the country.24 The District Court for the Eastern District of New York

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10 See Regents, 140 S. Ct. at 1902.

11 See Memorandum from Jeh Charles Johnson, Sec'y of Homeland Sec., to Le?n Rodr?guez,

Dir., U.S. Citizenship & Immigr. Servs., et al. 3?4 (Nov. 20, 2014),

default/files/publications/14_1120_memo_deferred_action_2.pdf [].

12 See Regents, 140 S. Ct. at 1902.

13 Texas v. United States, 86 F. Supp. 3d 591, 677?78 (S.D. Tex. 2015), aff'd, 809 F.3d 134 (5th

Cir. 2015), aff'd by an equally divided court, 136 S. Ct. 2271, 2272 (2016) (mem.) (per curiam).

14 See Texas, 809 F.3d at 135, 146.

15 5 U.S.C. ?? 551, 553?559, 701?706.

16 Texas, 809 F.3d at 171; see id. at 171?78.

17 Id. at 171 (quoting 5 U.S.C. ? 553(b)(A)); see id. at 171?78.

18 Pub. L. No. 89-236, 79 Stat. 911 (1965) (codified as amended in scattered sections of 8 U.S.C.).

19 See Texas, 809 F.3d at 182. The court declined to reach the states' constitutional claim. Id. at 154.

20 United States v. Texas, 136 S. Ct. 2271, 2272 (2016) (mem.) (per curiam).

21 Regents, 140 S. Ct. at 1903.

22 Letter from Jefferson B. Sessions III, Att'y Gen., U.S. Dep't of Just., to Elaine C. Duke,

Acting Sec'y, U.S. Dep't of Homeland Sec. (Sept. 4, 2017),

default/files/publications/17_0904_DOJ_AG-letter-DACA.pdf [].

23 See Memorandum from Elaine C. Duke, Acting Sec'y, U.S. Dep't of Homeland Sec., to James

W. McCament, Acting Dir., U.S. Citizenship & Immigr. Servs., et al. (Sept. 5, 2017),



[

7GBN]; Regents, 140 S. Ct. at 1903.

24 Regents, 140 S. Ct. at 1903.

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sustained the claims that the rescission was arbitrary and capricious under the APA and that it was "substantially motivated by discriminatory animus" in violation of the equal protection component of the Due Process Clause, but dismissed the claim that notice and comment were required.25 Similarly, the District Court for the Northern District of California sustained the majority of the APA and constitutional claims.26 The District Court for the District of Columbia vacated the rescission on the grounds that it was arbitrary and capricious27 but "defer[red] ruling" on the constitutional claims.28 In response to the D.C. District Court's invitation for further clarification, Secretary Kirstjen Nielsen (Acting Secretary Duke's successor) wrote an additional memorandum offering "several separate and independently sufficient reasons" for rescission.29 The D.C. District Court rejected the government's motion for reconsideration, explaining that "[a] conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not do."30

The Ninth Circuit affirmed the California district court's decision.31 The court explained that deferred action "arises . . . from the Executive's inherent authority to allocate resources and prioritize cases."32 After declining to consider any rationales that differed from the sole reason Acting Secretary Duke provided, the Ninth Circuit found that DACA was a "general statement[] of policy" that did not require notice-andcomment procedures and a lawful exercise of the agency's discretion.33 As the Secretary acted "on an erroneous view of what the law required," the decision to terminate DACA was arbitrary and capricious.34 Before the Second Circuit and the D.C. Circuit could decide, the Supreme Court granted certiorari and consolidated the three cases.35

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25 Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 269 (E.D.N.Y. 2018); see also Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 409 (E.D.N.Y. 2018) (granting plaintiffs a preliminary injunction after concluding that they were likely to succeed on the merits).

26 See Regents of Univ. of Cal. v. U.S. Dep't of Homeland Sec., 298 F. Supp. 3d 1304, 1316 (N.D. Cal. 2018).

27 See NAACP v. Trump, 298 F. Supp. 3d 209, 243 (D.D.C. 2018). 28 See id. at 246. The court explained that it was not necessary to address the constitutional claims, and the court was "especially reluctant unnecessarily to address constitutional issues that ha[d] already been thoroughly considered by other courts." Id. 29 Memorandum from Kirstjen M. Nielsen, Sec'y, Dep't of Homeland Sec. 1 (June 22, 2018), []. 30 NAACP v. Trump, 315 F. Supp. 3d 457, 473?74 (D.D.C. 2018) (emphasis omitted). 31 See Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec., 908 F.3d 476, 510 (9th Cir. 2018). 32 See id. at 487. 33 See id. at 502?03, 507?08, 510. The Ninth Circuit explained that "DACA is being implemented in a manner that reflects discretionary, case-by-case review . . . . With respect for our sister circuit, we find the analysis that seemingly compelled the result in Texas entirely inapposite." Id. at 510. 34 Id. at 510. 35 Regents, 140 S. Ct. at 1905.

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Writing for the Court, Chief Justice Roberts36 first rejected the government's claim that the agency action was unreviewable under either the APA or the INA. The rescission of DACA was not "committed to agency discretion by law" under ? 701(a)(2) of the APA37 because "DACA is not simply a non-enforcement policy."38 Rather than refusing to act, DHS "created a program for conferring affirmative immigration relief."39 And the elements of the policy that went beyond nonenforcement -- work authorization and government benefits -- are the kind of "benefits . . . `courts often are called upon to protect.'"40 As DACA "is more than a non-enforcement policy, its rescission is subject to review under the APA."41 Additionally, Chief Justice Roberts concluded that because INA provisions barring judicial review apply only to specific deportation proceedings and decisions to commence those proceedings, they did not apply to general policy decisions like the DACA rescission.42

The Court then considered whether the agency satisfied the procedural requirement of reasoned decisionmaking. First, Chief Justice Roberts rejected the government's attempt to include in the record the second memorandum written by Secretary Nielsen.43 He stated that when an agency chooses to elaborate on its initial explanation rather than issue a new rule supported by new reasons, courts must view these explanations "critically" and reject any "post hoc rationalization[s]."44 While Secretary Nielsen offered three independent reasons for the rescission, she offered these reasons only after the fact.45 Meanwhile, "Acting Secretary Duke rested the rescission [solely] on the conclusion that DACA is unlawful."46

Considering only the rationale provided by Acting Secretary Duke, the Court held that the rescission of DACA was arbitrary and capricious.47 As the Acting Secretary relied on Texas v. United States48 to support her decision, the Court looked to the "legal . . . defects" the Fifth Circuit found in that case, and concluded that these defects were relevant only

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36 Chief Justice Roberts was joined by Justices Ginsburg, Breyer, and Kagan. Justice Sotomayor

joined except as to Part IV. 37 Regents, 140 S. Ct. at 1905. 38 Id. at 1906. 39 Id. 40 Id. (quoting Heckler v. Chaney, 470 U.S. 821, 832 (1985)). 41 Id. at 1907. 42 Id. 43 Id. at 1907?10. The Court stated that agencies cannot provide additional reasons for their

decisions after the fact. Id. at 1908. 44 Id. at 1908 (emphasis omitted) (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.

402, 420 (1971)). 45 See id. 46 Id. 47 Id. at 1915. 48 809 F.3d 134 (5th Cir. 2015), aff'd by an equally divided court, 136 S. Ct. 2271, 2272 (2016)

(mem.) (per curiam).

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to DHS's decision to grant eligibility for benefits.49 The agency had therefore ignored the legally distinct policy of deferring deportations.50 While noting that this failure was enough to violate the APA, Chief Justice Roberts nevertheless went on to conclude that the agency had also failed to consider substantial reliance interests.51 The Supreme Court did not address substantive arguments about DACA's legality, noting that the parties had overlooked the fact that Acting Secretary Duke "was bound by the Attorney General's legal determination."52

Finally, in a portion of the opinion joined by three Justices, Chief Justice Roberts found insufficient evidence that the rescission of DACA was motivated by animus against Latinos to support an equal protection claim.53 Chief Justice Roberts concluded that DHS's decision to reevaluate DACA was not "irregular," and dismissed the President's "critical" language about Latinos and Mexicans as "remote in time and made in unrelated contexts."54 He further noted that the respondents had not identified statements evincing animus from either Acting Secretary Duke or Attorney General Sessions, who were the most relevant actors.55 Justices Thomas, Alito, Gorsuch, and Kavanaugh concurred in the dismissal of the equal protection claims.56

Justice Sotomayor dissented from the dismissal of the constitutional claims. She argued that by minimizing President Trump's statements and "the disproportionate impact of the rescission decision on Latinos," the majority ignored context.57 Finding sufficient evidence of animus, she would have allowed the equal protection claims to stand.58

Justice Thomas, joined by Justices Alito and Gorsuch, dissented in part. Justice Thomas argued that DACA was illegal from the start because it was created "without any statutory authorization and without going through the requisite rulemaking process."59 As such, DHS was not required to provide any additional reasons for its rescission.60

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49 See Regents, 140 S. Ct. at 1911 (omission in original) (quoting Letter from Jefferson B. Sessions III, supra note 22).

50 Id. at 1911?12. The Court compared the agency's justification to the justification rejected as insufficient in Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983). Regents, 140 S. Ct. at 1912.

51 Regents, 140 S. Ct. at 1913. 52 Id. at 1910 (emphasis omitted). 53 Id. at 1915?16 (plurality opinion). Chief Justice Roberts was joined by Justices Ginsburg, Breyer, and Kagan. 54 Id. at 1916. 55 Id. 56 Id. at 1919 n.1 (Thomas, J., concurring in the judgment in part and dissenting in part); id. at 1936 (Kavanaugh, J., concurring in the judgment in part and dissenting in part). 57 Id. at 1917 (Sotomayor, J., concurring in part, concurring in the judgment in part, and dissenting in part); see id. at 1917?18. 58 Id. at 1917. 59 Id. at 1918?19 (Thomas, J., concurring in the judgment in part and dissenting in part). 60 Id. at 1922.

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