JURIST Guest Columnist Glenn C. Smith of California Western School of Law in San Diego discusses four critical legal points regarding the Ninth Circuit's recent decision in Regents of the Univ. of Cal. v. U.S. Dep't. of Homeland Sec....

On November 8, the US Court of Appeals for the Ninth Circuit became the first appellate court to enter one of the most high-profile legal fights against the Trump Administration. In lead and concurring opinions running 99 pages, three appellate judges in Regents of the University of California v. U.S. Department of Homeland Security affirmed a district court’s preliminary injunction requiring the Administration to keep the Obama-era Deferred Action for Childhood Arrivals (DACA) program in place pending further proceedings.

The 2012 DACA program has granted renewable two-year deferrals from deportation to almost 700,000 “dreamers” brought illegally to America as children, and who have clean criminal records and meet educational or military service requirements. Successful DACA applicants can also apply for authorization to work legally.

The Ninth Circuit’s Regents decision increases the likelihood that the U.S. Supreme Court will enter the fray. Before the Ninth Circuit ruled, the Trump Administration had already taken the unusual step of asking the Supreme Court to not await court-of-appeals rulings and undertake direct review of adverse district-court rulings in Northern California, Brooklyn, New York, and the District of Columbia. Now that Regents can be the vehicle for reviewing the DACA rescission without jumping the usual judicial line, some Court watchers are speculating that the justices could quickly grant certiorari, schedule oral argument for April, and decide DACA’s fate by the end of its current term in mid-summer.

For now, let’s look beyond whether Regents will lead to one of the biggest cases in this Supreme Court term and the first major test of how new Justice Kavanaugh will resolve challenges to actions by the President who appointed him. Regents is important for four other reasons explained in the remainder of this commentary.

How Litigation Narrows and Skews the Issues

First, Regents provides a prominent new example of a point I’ve highlighted in previous JURIST writings: when a challenged governmental policy ends up being litigated, the issues can be much narrower than and different from how the controversy plays out in the political branches, the media, and the public.

Ask any informed American about the issues raised by the dreamers and DACA and they’d likely focus on the equities of deporting productive and often exemplary young people to countries they have no connection to and the economic and social implications of illegal immigration. Informed Americans might especially raise concerns resonating with U.S. constitutional rights – including the due-process right not to be targeted for deportation based on information the dreamers voluntarily provided to DACA decision-makers or the equal-protection guarantee not to be discriminated against based on ethnicity or nationality.

Thus, it would likely surprise even many well-informed observers to know that, like the district judge whose decision was under their review, the two appellate judges forming the lead Regents opinion (I’ll dub them “the Regents duo”) relied on arcane administrative-law doctrines flowing from the judicial-review provisions of the Federal Administrative Procedure Act. Specifically, the Regents duo concluded that Acting DHS Secretary Nielsen’s September 5, 2017 announcement rescinding DACA would ultimately be found illegal because it was an “arbitrary and capricious” administrative action violating 5 U.S.C. Sec. 706(2)(A).

(The third Ninth Circuit judge relied instead on the likelihood that rescission opponents could show an equal-protection violation, based on the disproportionate impact on certain ethnic minorities and President Trump’s anti-Mexican statements as a candidate and once in office.)

How an APA Theory Channels Analysis

A second reason why Regents is important is that it nicely illustrates how reliance on an APA arbitrary-and-capricious-action theory directs the legal analysis. Relying on the APA required the Regents duo to decide what they termed the “pivotal” threshold question — whether the DACA rescission was reviewable by any court.

In a lengthy and highly detailed exploration of whether the DHS action was so thoroughly “committed to agency discretion” (5 U.S.C. Sec. 701(a)2) that there was no law to apply, the Regents duo dissected Supreme and lower court precedents and parsed the factual record to arrive at two main conclusions: 1, Courts may review an administrative decision not to enforce current policy if the decision is “based solely on” the agency’s “belief that it lacked jurisdiction to act.” And 2, the DHS action was in fact solely based on a Department of Justice memorandum opining that DACA should be rescinded because it was “effectuated…without proper statutory authority” and “was an unconstitutional exercise of authority by the Executive Branch.”

(Significantly, the third Ninth Circuit judge who voted with colleagues to keep the DACA rescission on hold found the duo’s treatment of APA reviewability unpersuasive. DHS acted, in this judge’s view, “with broad discretion that courts cannot review absent clear congressional authorization.”)

Finding the DACA rescission reviewable because it relied solely on the Justice Department’s anti-DACA assessment, the Regents duo then needed to judge the merits of the rationale on which the assessment relied. The Regents duo found that DACA fit comfortably within a past history of immigration-enforcement discretion by previous administrations, which adopted deferred action programs for “entire classes of otherwise removable citizens.” The judges also considered, and rejected, several Trump Administration arguments that DACA suffered from the same legal deficiencies that had led two lower courts and an equally divided Supreme Court to prevent DAPA (a later program to benefit the noncitizen parents of DACA recipients) from ever going into effect.

Thus, in going down the administrative-law road, the Regents duo bypassed direct consideration of constitutional arguments (although, like the district judge they affirmed, the appellate judges saved plaintiffs’ claims from dismissal, and they can be taken up later as needed). Instead, the Regents duo emphasized APA reviewability and rationality, which definitely switched the narrative and analytical focus.

The Potency and Limits of APA-based Challenges

This leads to a third, related point: The Regents litigation illustrates the potential potency of administrative law doctrines as weapons against a new administration’s enforcement-policy changes, but Regents also points to the inherent limitations of this strategy.

As to potency, there is the simple reality that the APA-challenge strategy has successfully scuttled DACA rescission for more than a year. (Even if a mid-summer Supreme Court reversal of Regents clears the way for DACA rescission, that would be an almost two-year delay.)

On the limitations side, APA-based arbitrary-and-capricious invalidations are unlike judicial rejections on constitutional or statutory grounds. The latter last until the Constitution is changed or a precedent is overturned – unlikely – or until Congress re-legislates – also unlikely, when the policy question is controversial! By contrast, APA deficiencies can be more quickly cured by the administrative agency itself. As the Regents panel itself recognized, the Administration “is, as always, free to reexamine its policy choices” and rescind DACA on some discretionary basis other than “an erroneous view of what the law required.”

The Broader Looming Questions

A fourth and final observation is that Regents and the broader DACA-rescission litigation pose especially difficult versions of questions typically looming behind the seemingly obscure administrative-law doctrines.

Judicial review of the substantive justification behind agency action always raises basic institutional concerns about the legitimacy of unelected, non-expert judges second-guessing more democratically accountable, presumably expert officials. But when the focus of review is a high-profile policy decision prominently discussed in a presidential campaign and after, the legitimacy concerns are heightened.

The DACA dispute also raises the vexing institutional question of whether courts are on a firmer, as strong, or less solid footing when they question the legal reasoning of an administration’s chief law-enforcement officer (the Attorney General). On the one hand, courts have more claim to expertise in legal reasoning than in the myriad technical and policy implications arising in regulation. On the other hand, shifting legal theories are one of the key ways in which new administrations correct errors and effect the changes they are supposedly elected to accomplish. One example is the Obama Administration’s 2011 about-face on the constitutionality of the same-sex marriage restrictions in the federal Defense of Marriage Act.

Ultimately, then, Regents and the DACA-rescission controversy raise fundamental questions about the extent to which regulatory-policy continuity — and, specifically, stability in the legal theory behind regulation — is an important dimension of the rule of law.

It will be interesting to see the extent to which these difficult but important mega-questions are addressed, explicitly or implicitly, in future rounds of the fight over DACA.

Professor Glenn C. Smith teaches constitutional law at California Western School of Law in San Diego. He is the principal co-author of Constitutional Law for Dummies [John Wiley & Sons, Inc. 2012]. His monthly “Constitutional Context” audio podcasts are hosted by SDSU’s Osher Lifelong Learning Institute (and available by app from I-Tunes and other major service providers).

Suggested citation: Glenn C. Smith, DACA on the Docket, JURIST – Academic Commentary, Dec. 5, 2018, https://www.jurist.org/commentary/2018/12/glenn-smith-DACA-docket/

This article was prepared for publication by Erin Holliday, a JURIST Assistant Editor. Please direct any questions or comments to him at commentary@jurist.org