Many commentators have suggested that Monday’s decision by the U.S. Supreme Court, not to review a district court decision preventing the administration from ending the DACA program, means a long delay as that initial decision is first reviewed by the 9th U.S. Circuit Court of Appeals, and then review of that decision is subsequently sought in the Supreme Court.
But there’s a very simple alternative, suggested by both lower courts which have reviewed the DACA rescission, which might well end the DACA program without waiting for this lengthy process to conclude, says public interest law professor John Banzhaf.
Unlike earlier court defeats by the administration on issues such as immigration and sanctuary cities, the issue regarding the DACA rescission is not based on constitutional grounds which the administration cannot remedy, but rather on the administration’s choice of words in its rescission document – which can always be changed to support a new rescission document with exactly the same effect.
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As U.S. District Judge Nicholas Garaufis of New York has succinctly put it in reviewing the DACA order, the administration “indisputably can end the DACA program. Nothing in the Constitution or the Immigration and Nationality Act requires immigration authorities to grant deferred action or work authorization to individuals without lawful immigration status.”
Rather, that judge said, “the [federal] APA [statute] thus sometimes places courts in the formalistic, even perverse, position of setting aside action that was clearly within the responsible agency’s authority, simply because the agency gave the wrong reasons for, or failed to adequately explain, its decision. . . . Based on the present record, these appears to be just such cases.”
Another separate ruling, by federal district Judge William Alsup in California – the decision the Supreme Court just declined to review – reached virtually the same conclusion.
“Plaintiffs have shown a likelihood of success on their claim that the rescission was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law. Specifically, plaintiffs are likely to succeed on their claims that . . . the agency’s decision to rescind DACA was based on a flawed legal premise. . . . Plaintiffs are therefore likely to succeed on the merits of their claim that the rescission was based on a flawed legal premise and must be set aside as ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'”
So the simple remedy, and the path to a much swifter end to DACA, is simple: reissue the same rescission, but provide any rationale – one of many possibilities – which is not prohibited by law.
Two famous Supreme Court cases – actually the same case which reached the high court twice – shows how easily this can be done, and why this tactic is very likely to succeed.
The Securities and Exchange Commission [SEC] had issued an order refusing to approve a plan which had been submitted to it. The stated reason for the refusal was the conclusion, set forth in the order, that the plan legally amounted to a fraud. However, in Chenery I, the Supreme Court invalidated the agency’s action because it was based upon a mistake of law – there was no fraud as the agency had claimed.
Subsequently the same agency revisited the same matter and issued basically the same order.
The only difference is that the SEC said that this second ruling was based upon another different ground. So when the case again came before the Supreme Court for a second time in Chenery II, the justices upheld exactly the same order they had struck down before. The only difference is that this time the order was based upon one of the many possible rationales which the Court held was permissible.
In the DACA situation the document recited that rescission of the policy was based upon the legal conclusion that President Obama’s decision to establish the program in the first place was illegal.
As Judge Garaufis concluded, “the decision to end the DACA program appears to rest exclusively on a legal conclusion that the program was unconstitutional and violated the APA and INA. Because that [legal] conclusion was erroneous, the decision to end the DACA program cannot stand.”
Judge William Alsup in California reached virtually the same conclusion for the same reason.
“Plaintiffs have shown a likelihood of success on their claim that the rescission was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law. . . . plaintiffs are likely to succeed on their claim that . . . the agency’s decision to rescind DACA was based on a flawed legal premise.”
Both judges also noted that, since the initial rationale for rescinding DACA was legally incorrect, counsel for the government sought to provide an additional ad hoc rationalization for the order.
But both judges stated that ad hoc rationalizations would not save the order.
Here, as both judges made clear, the government could submit a new order having the same legal effect, and it would be upheld if the government could provide a rationalization which was not clearly invalid on its face. They both noted that the scope of review the court must apply is a very narrow one, since courts may not review the wisdom or fairness of a decision, only whether it has any reasonable stated basis.
In other words, if the same order is reissued with a rationale which is not clearly invalid (e.g., based upon an incorrect legal premise), courts would have to uphold it unless the stated rationale is clearly incorrect or totally irrational; what the law terms arbitrary and capricious
So, if this were done, lower courts would be very unlikely to try to rescind the order a second time, and it could become effective very quickly, and almost certainly more quickly than waiting for the 9th Circuit to review the California order, and to then seek review of that decision in the U.S. Supreme Court.
Interestingly, while many saw Monday’s Supreme Court’s refusal to review the current stay as a victory for supporters of DACA, others have suggested that it leaves the long-term validity of the program in legal limbo. An earlier definitive conclusion might serve everyone better, perhaps permitting the issue to one which could be raised in the forthcoming congressional elections and the debates leading up to them.