Separation of Powers, Checks and Balances, and the Future of DACA

Separation of Powers, Checks and Balances, and the Future of DACA


In Department of Homeland Security v. Regents of the University of California, which was decided by the Supreme Court on June 18, 2020, the Court determined that the rescission of Deferred Action for Childhood Arrivals (DACA) by the Department of Homeland Security (DHS) is judicially reviewable and that it was arbitrary and capricious under the Administrative Procedure Act.[1] DACA is a nonenforcement policy where young people brought to the United States as children who meet certain criteria may apply for relief from removal.

A basic tenet of the separation of powers is that each branch is responsible for its own actions. If every branch could blame the other, there would be no check on each branch’s authority. In rescinding DACA, DHS tried to do just that, by justifying rescission based solely on DACA’s supposed illegality. Allowing the executive branch to claim that rescission is required by the legislative and judicial branches while simultaneously insulating itself from judicial review would violate core separation of powers principles.

Thus, the Court was right to hold that DHS’s decision to rescind DACA is reviewable and that the program’s rescission was arbitrary and capricious. For a decision affecting nearly 700,000 individuals, their families and communities, the Trump Administration failed to provide contemporaneous reasoned analysis for its decision or to weigh transparently its costs and benefits.

I. The Creation and Rescission of DACA

There are an estimated 10.5 million to 12 million undocumented individuals living in the United States.[2] The government lacks resources to deport all eligible individuals, so the executive branch has long used deferred action[3] policies to exercise its discretion over priorities for deportation.

In the Immigration and Nationality Act (INA), Congress charged the Secretary of Homeland Security with “[e]stablishing national immigration enforcement policies and priorities.”[4] In 2012, Secretary of Homeland Security Janet Napolitano exercised that authority to create DACA, a federal program that allowed noncitizens who entered the United States as children to apply for renewable periods of deferred action, so long as they have no criminal records and meet certain educational or military service requirements.[5]

Hundreds of thousands of young people who know no home but the United States took the government up on its offer; they provided sensitive personal information to DHS, underwent and passed extensive background checks, and paid nearly $500 in fees per application.[6] Those who were approved were then able to apply for employment authorization under existing DHS regulations that allowed them to work legally and pay taxes.[7] And DACA recipients have done just that—contributing an estimated $1.7 billion in state and local tax revenue every year.[8] They are core members of their communities and the U.S. economy, as evidenced by copious amicus curiae briefs filed in the Supreme Court in support of DACA recipients.[9]

In 2014, building on the program’s early successes, Secretary of Homeland Security Jeh Johnson issued a memorandum expanding DACA eligibility and creating a related program: Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).[10] DAPA would have allowed deferred action for noncitizen parents of U.S. citizens and lawful permanent residents. However, a district court order upheld by the Fifth Circuit and affirmed by an evenly split Supreme Court enjoined nationwide all policies in the Johnson Memorandum.[11]

The Fifth Circuit held that the Johnson Memorandum likely violated the Administrative Procedure Act (APA) because it failed to go through the required procedures of notice-and-comment rulemaking.[12] It also held that the Johnson Memorandum likely violated the INA because the INA already had an “intricate system of immigration classifications and employment eligibility” that overlapped the DAPA policy.[13] Finally, the court noted that Congress likely needed to pass DAPA legislatively given its potential application to more than four million people.[14] Thus, DAPA and the expansion of DACA were struck down. But the original DACA program remained in effect.

A change in administration, however, brought a change in policy. On September 5, 2017, Acting Secretary of Homeland Security Elaine Duke issued a memorandum rescinding DACA.[15] The Duke Memorandum began by describing a letter sent to U.S. Attorney General Jeff Sessions by Texas Attorney General Ken Paxton. In it, the Texas Attorney General threatened that if the federal government did not rescind DACA, he would amend his state’s successful complaint against DAPA to challenge DACA.[16] The Duke Memorandum also included a letter sent one day prior by Attorney General Sessions to Acting Secretary Duke, advising that DHS rescind DACA based on the legal opinion that DHS lacked statutory authority to create DACA in the first place and, therefore, the program “has the same legal and constitutional defects that the courts recognized as to DAPA.”[17]

Acting Secretary Duke concluded that “[t]aking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing [DAPA] litigation, and the … letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.”[18]

More than nine months later and only in response to litigation,[19] Secretary of Homeland Security Kirstjen M. Nielsen issued another memorandum providing “further explanation” of DHS’s decision to rescind DACA.[20] Secretary Nielsen agreed that DACA was contrary to law and that there were no “sufficiently material” differences between DACA and DAPA, rendering the former as unlawful as the latter.[21] She further noted that the “threat of burdensome litigation,”—such as the civil action threatened by the Texas Attorney General—“distracts from the agency’s work.”[22] Finally, Secretary Nielsen defended DHS’s decision to rescind DACA by reasoning that “public policies of non-enforcement” should be “enacted legislatively,” and that, given the “unacceptably high levels” of illegal border crossings by minors, it was “critically important for DHS to project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration laws against all classes and categories of aliens.”[23]

Several challengers, including states, the University of California system, and DACA recipients, contested the rescission of DACA by filing suit in the Northern District of California.[24] The district court ordered DHS and Acting Secretary Duke to complete the administrative record by providing “all emails, letters, memoranda, notes, media items, opinions and other materials directly or indirectly considered in the final agency decision to rescind DACA.”[25] On a petition for mandamus in response to this order, the Supreme Court instructed the district court to rule on the government’s reviewability arguments before requiring DHS to provide additional documents.[26] The district court, in a win for the challengers, found that DHS’s action was judicially reviewable and arbitrary and capricious, and thus entered a nationwide preliminary injunction that required DHS to adjudicate renewal applications for existing DACA recipients.[27]

The Ninth Circuit affirmed the district court’s rulings, holding that DACA’s rescission was both reviewable and arbitrary and capricious.[28] It held that DHS’s decision was reviewable because courts can review agency actions when agencies justify the decision as compelled by law.[29] The Ninth Circuit then found the decision arbitrary and capricious because the legal reasoning underlying DHS’s decision was incorrect.[30] The court distinguished the Fifth Circuit’s ruling on DAPA by noting that the Fifth Circuit found DAPA inconsistent with the INA because “Congress ha[d] ‘directly addressed the precise question at issue’” and therefore foreclosed the DAPA program.[31] By contrast, there was “no argument” that Congress has “similarly occupied the field with respect to DACA.” [32] Thus, it was not inconsistent with the INA. Furthermore, unlike DAPA, for which the Fifth Circuit held that a decision affecting 4.3 million people would not have been delegated by Congress to DHS, DACA applied to far fewer people and, therefore, was within DHS’s authority.[33]

Challengers filed similar suits in the Eastern District of New York, the District of Maryland, and the District Court for the District of Columbia, all of which resulted in similar rulings.[34] In 2019, the Supreme Court granted certiorari[35] on two issues: whether DHS’s decision to rescind DACA is reviewable and, if so, whether it was arbitrary and capricious under the APA. On June 17, 2020, the Supreme Court ruled that DHS’s decision was reviewable, and that it was arbitrary and capricious.

I agree that DHS’s decision to rescind DACA was reviewable—to hold otherwise would violate core separations of powers values in allowing the executive branch to escape responsibility for and judicial review of its actions. The Court was also correct in holding that the decision to rescind DACA was arbitrary and capricious. A decision this monumental required much more analysis and reasoning than DHS provided, taking into account the weighty reliance interests of hundreds of thousands of DACA recipients, their families, and their communities.

II. DHS’s Decision to Rescind DACA is Reviewable

Congress has long provided that courts may review agency actions for “abuse of discretion” under the APA.[36] In turn, the Supreme Court has consistently interpreted the APA’s provision for judicial review broadly, explaining that it applies “a strong presumption favoring judicial review of administrative action.”[37] Especially when an agency claims that its actions are predetermined by law, “[i]t is emphatically the province and duty” of the Court “to say what the law is.”[38] Absent such judicial review, actions by administrative agencies—the powerful “fourth branch” of government[39]—lack legitimacy and public accountability.

The government bears a “heavy burden” to overcome this presumption of reviewability.[40] DHS argued that rescission of DACA is not reviewable under an exception to the APA whereby agency actions are “committed to agency discretion by law.”[41] DHS failed to acknowledge, however, that this is a “very narrow exception.”[42] The Court has limited it to “rare instances where … there is no ‘law to apply,’”[43] such as with block grant apportionment,[44] national security personnel decisions,[45] refusal to reconsider a prior adjudicative decision,[46] and refusal to institute specific requested enforcement proceedings “traditionally … committed to agency discretion.”[47] Conversely, the Court has refused to extend this narrow exception to programmatic policy decisions—such as an agency’s refusal to initiate rulemaking.[48] Section 701(a)(2) of the APA applies only to individualized enforcement decisions “involv[ing] a complicated balancing of a number of factors … peculiarly within [the agency’s] expertise.”[49]

Broad programmatic policy decisions affecting hundreds of thousands of people—like the rescission of DACA—are both reviewable and distinguishable from discrete prosecutorial decisions “traditionally … committed to agency discretion.”[50] For example, in Heckler v. Chaney, the Court held unreviewable under Section 701(a)(2) the Food and Drug Administration (FDA)’s decision not to bring enforcement proceedings over the use of certain drugs in lethal injections.[51] The “unsuitability for judicial review” of the FDA’s decision was based on the agency’s need to “assess whether a violation ha[d] occurred,” “whether agency resources [were] best spent on this violation or another,” and whether the agency was “likely to succeed if it act[ed].”[52] Those factors all concerned details specific to an individual case, not a broad programmatic policy. Further, the Court compared the FDA’s non-enforcement decision to “the decision of a prosecutor in the Executive Branch not to indict”—itself an individualized decision, not a programmatic policy.[53] Thus, the Court made clear that the narrow exception in section 701(a)(2) of the APA applies only to discrete enforcement decisions.

Unlike in Chaney, this is not an individualized enforcement or non-enforcement decision—the decision to adopt or rescind a class-based deferred action policy establishes a framework that guides future decisions for an entire class of potential recipients. It is a broad programmatic policy decision and does not fall within the tradition of non-reviewability established in Chaney. Instead, it is subject to the “strong presumption” in favor of reviewability.[54]

Chaney also recognized a critical distinction between enforcement decisions and non-enforcement decisions, as an agency’s refusal to act “does not exercise its coercive power over an individual’s liberty or property rights.”[55] Enforcement and non-enforcement decisions are not equal. By eliminating DACA’s non-enforcement policy, the government paved the way for exercising its coercive power over individuals, including arresting and deporting them. This is exactly the kind of far-reaching policy decision with broad consequences that should be subject to the presumption of judicial review.

Still, DHS argued that Congress’s conferral of broad authority to the Secretary of Homeland Security[56] excludes her decisions from judicial review. But the Court recently held in Department of Commerce v. New York that judicial review is proper even where Congress “confers broad authority on the Secretary.”[57] Unlike in Webster v. Doe, where the Court held unreviewable a firing decision made by the Director of the CIA based on national security concerns,[58] the rescission of DACA is not the kind of discretionary, internal decision where the Secretary needs maximum flexibility. Again, it is a broad, programmatic policy decision—affecting hundreds of thousands of people—that is suited to judicial review.[59]

Such judicial review is necessary to preserve democratic accountability for DHS’s actions. Acting Secretary Duke’s one-sentence explanation for DACA’s rescission was based solely on “the Supreme Court’s and the Fifth Circuit’s rulings” on DAPA and a legal determination by Attorney General Sessions that DACA was unlawful.[60] This clearly provides “law to apply,”[61] so the judiciary, tasked with saying “what the law is,”[62] must review whether the legal conclusions provided appropriate justification. Without judicial review, DHS paradoxically could justify its decision based solely on legal determinations, while at the same time insulating itself from judicial review.

This would violate the constitutional separation of powers scheme, as the judicial branch must be able to check the executive branch. Where an agency justifies its action based solely on the domain of the judicial branch—the law—it cannot evade review. Thus, when an agency concludes that a particular policy is required by law, “it shifts responsibility for its decision onto courts.”[63] Judicial review, in turn, promotes democratic accountability by preventing the executive branch from evading responsibility for its actions.

Public accountability is only possible if the electorate can “determine on whom the blame or the punishment of a pernicious measure … ought really to fall.”[64] Agencies wield great power without the same democratic accountability as the president and the legislature. One way to answer that concern is to require judicial review of agency actions based on public ventilation of an agency’s reasoning. But where, as here, an agency gives no reasoned analysis other than reliance on its interpretation of the law, judicial review is even more important to ensure that agencies cannot evade responsibility for their actions.

Rather than encroaching on executive discretion, judicial review can empower the executive.[65] Here, for example, judicial review does one of two things: The Court could confirm the agency’s lack of discretion, which simply preserves the status quo and takes no power away from the executive.[66] Or the Court could decide that the agency incorrectly perceived a lack of discretion to enact a policy like DACA, which would expand the executive’s discretion to make a reasoned policy choice.[67] The Court did the latter, expanding the options available to DHS and noting in particular that DHS should have considered continuing the forbearance aspect of DACA while terminating benefits eligibility based on the Fifth Circuit’s reasons for striking down DAPA.[68]

Thus, although DHS argued that judicial review of DACA’s rescission violates separation of powers, what it actually advocated was pure abdication of the judicial role. Separation of powers depends on the judiciary checking the executive. DHS cannot argue contradictorily both that its decision is committed to agency discretion and that it had no discretion because DACA was illegal. “[A]n official cannot claim that the law ties her hands while at the same time denying the courts’ power to unbind her. She may escape political accountability or judicial review, but not both.”[69] The Court, therefore, was correct in holding that it could review DHS’s decision to rescind DACA. The only question remaining was whether DHS’s decision was arbitrary and capricious under the APA.

III. DHS’s Rescission of DACA was Arbitrary and Capricious

The APA requires that courts “shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[70] To survive judicial review, the Supreme Court has emphasized that “the grounds upon which the administrative agency acted” must be “clearly disclosed and adequately sustained.”[71] Agency explanations must be “based on consideration of the relevant factors,” and may not “fail[] to consider an important aspect of the problem.”[72] Otherwise, the agency’s action is arbitrary and capricious.

The future of DACA affects nearly 700,000 young people, their families, communities, employers, and their estimated 200,000 U.S.-born children.[73] The decision to rescind such a program is a weighty one that cannot and should not have been explained in a sentence or less.[74] It requires “reasoned explanation” and accounting for how “longstanding policies may have ‘engendered serious reliance interests.’”[75] DHS’s explanation failed on both counts. It provided no more than conclusory reasoning and ignored altogether the critical reliance interests at stake. Thus, the Supreme Court correctly found DHS’s rescission of DACA “arbitrary and capricious” under the APA.[76]

A. The Nielsen Memorandum was not properly before the Court.

As a preliminary matter, the Nielsen Memorandum is a post hoc rationalization not properly before the Court, so the Court rightly declined to consider it. It is a “foundational principle of administrative law that a court may uphold agency action only on the grounds that the agency invoked when it took the action.”[77]

This prohibition is not merely an issue of formality over practicality. It is a long-established rule with profound justifications. Requiring contemporaneous, reasoned deliberation by agencies protects courts from having to review continuously changing reasoning in litigation. In addition, the APA’s judicial review procedures provide legitimacy to agency actions by assuring the public that the agency has ventilated thoroughly the issue by “consider[ing]” all “relevant factors” and “giv[ing] adequate reasons for its decisions.”[78] This is especially important given the enormous power agencies wield—here, DHS made a decision affecting nearly 700,000 DACA recipients, their families, their communities, and the broader economy. Courts’ “paramount function” is to evaluate whether an agency, “given an essentially legislative task to perform” has “negate[d] the dangers of arbitrariness and irrationality.”[79]

Allowing an agency to provide post hoc rationalizations once litigation commences defeats the deliberation and transparency promoting functions of judicial review. Where arbitrary and capricious review promotes reasoned deliberation,[80] post hoc rationalizations—like the Nielsen Memorandum—allow agencies to make arbitrary decisions and then have their lawyers justify those decisions later when challenged. This practice erodes agencies’ transparency and accountability to the American public.

Accordingly, the Court properly limited itself to the record produced at the time DHS rescinded DACA on September 5, 2017, through the Duke Memorandum. The Nielsen Memorandum was issued more than nine months later and only in response to litigation challenging the earlier rescission. It was not a new decision by the agency,[81] but instead expressly “decline[d] to disturb” the Duke Memorandum and professed merely to provide “further explanation.”[82] Thus, the Court was right to exclude the Nielsen Memorandum and look only at the Duke Memorandum.

B. The Duke Memorandum provided insufficient reasoning.

The Duke Memorandum itself has a number of fatal flaws that render its decision to repeal DACA arbitrary and capricious. It based rescission on purely legal justifications, insisting that DHS lacked authority to enact the program in the first place. I agree with the Supreme Court that, without providing reasoned analysis in support of its conclusion, DHS’s decision to rescind DACA was arbitrary and capricious. DHS provided insufficient reasoning of DACA’s illegality, and, in basing its decision on the Fifth Circuit’s ruling regarding DAPA, failed to distinguish key differences between DACA and DAPA.

First, the Duke Memorandum’s one-sentence conclusion of DACA’s illegality was insufficiently reasoned. Courts should not “be compelled to guess at the theory underlying the agency’s action,” nor should courts “be expected to chisel that which must be precise from what the agency has left vague and indecisive.”[83] Yet the Duke Memorandum did not provide any explanation for its conclusory claim that DACA is unconstitutional[84]—and, indeed, no court has declared DACA or DAPA unconstitutional.

DHS’s conclusory statement of DACA’s illegality left courts to guess at the agency’s basis for acting. One possibility was that DHS believed DACA was illegal because it was not enacted through notice and comment rulemaking. Where agency announcements are “general statements of policy,” they do not require notice-and-comment procedures.[85] In deciding whether a policy is a general statement, lower courts have looked at whether the policy leaves the agency or official “free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.”[86] But the 2012 DACA Memorandum likely is a “general statement of policy” exempt from notice-and-comment rulemaking as it “does not dictate a categorical outcome,” but merely provides “criteria to guide the exercise of discretion by subordinate agency officials in evaluating particular cases.”[87] Indeed, the 2012 DACA Memorandum specifically requires that “requests for relief pursuant to this memorandum are to be decided on a case by case basis.”[88] The Duke Memorandum failed entirely to evaluate whether DACA, when created, was exempt from notice and comment rulemaking. Even if it were not, however, this rationale for DHS’s actions is nothing more than conjecture, as DHS did not provide reasoned analysis advancing this argument or any other. Without reasoned analysis to support its legal conclusion, DHS’s decision was arbitrary and capricious.

DHS also failed to address the fact that DACA fits within a long tradition of the Supreme Court and Congress acknowledging deferred action as a feature of the immigration system. The INA confers authority to the executive to “[e]stablish[] national immigration enforcement policies and priorities,”[89] and the executive branch has “engag[ed] in a regular practice” of exercising enforcement discretion “for humanitarian reasons or simply for its own convenience.”[90] Deferred action represents a decision by executive branch officials not to pursue deportation proceedings against an individual or class of individuals otherwise eligible for removal from this country.[91] As the Ninth Circuit noted, “Congress has historically recognized the existence of deferred action in amendments to the … INA … and other statutory enactments.”[92] And the executive branch has frequently applied deferred action programmatically, “to entire classes of otherwise removable noncitizens.”[93] Yet the Duke Memorandum did not engage with this long historical backdrop of programmatic deferred action policies in its conclusory statement of DACA’s illegality. Ultimately, in providing only a one-sentence conclusion of DACA’s illegality, DHS left the courts and the public to guess at its contemporaneous reasoning. This will not do.

Second, DHS was unjustified in relying on the Fifth Circuit’s ruling on DAPA’s illegality to conclude that DACA was also illegal. Even assuming that the Fifth Circuit’s ruling was correct, the Duke Memorandum still failed to distinguish key differences between DAPA and DACA. The Fifth Circuit held that DAPA was unlawful because it encroached upon an “intricate [statutory] process” already laid out in the INA for eligible DAPA recipients.[94] Congress has not passed a comparable intricate statutory process for individuals eligible for DACA, and therefore DACA likely does not violate the INA.

The Fifth Circuit also based its conclusion that DAPA violated the INA on DAPA’s application to approximately four million individuals.[95] It concluded that if Congress intended to create such a policy, it would have done so by express legislation.[96] DACA, by comparison, applies to many fewer individuals and is more similar in scale to past discretionary relief programs, including the Family Fairness program, which was offered by the Reagan Administration to an estimated 1.5 million individuals.[97] In failing to even address these distinctions, DHS’s decision was arbitrary and capricious.

C. DHS failed to consider significant reliance interests.

Finally, and by itself fatal, DHS failed to demonstrate that it adequately considered the vast reliance interests at stake. When an agency reverses a previous policy, it must provide a “reasoned explanation for the change”[98] that includes reasons “for disregarding facts and circumstances … engendered by the prior policy.” Where “serious reliance interests [are] at stake,” the agency must offer more than “conclusory statements.”[100]

The Duke Memorandum never even mentions the reliance interests of the nearly 700,000 DACA recipients, nor those of their communities, employers, and nearly 200,000 U.S.-citizen children.[101] DACA recipients “have enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children,” relying on their deferred status to live and work lawfully without fear of arrest and deportation.[102] Rescission would obliterate that security. It would also result in the United States losing an estimated $215 billion in GDP and $60 billion in federal tax revenue over a ten-year period, and cause abrupt, substantial losses for employers, universities, and the military as former DACA recipients face removal.[103] Without analysis of these significant reliance interests, the decision to rescind DACA was arbitrary and capricious.


The Court had multiple options before it when deciding how to rule in this case. It could have avoided wading into the agency’s decision making altogether by ruling that DHS’s rescission of DACA was unreviewable. But this would have undermined the Court’s strong presumption in favor of reviewability and could have made it more difficult in future for those on both sides of the political divide to challenge agency decisions that seem arbitrary and capricious. On the other hand, if the Court had held that the agency’s decision was reviewable but well-reasoned, it would have undercut many of its own cases requiring thoroughly reasoned decision making by agencies, considering all tradeoffs and counterarguments.[104]

Even though the Court ruled that DHS’s decision was reviewable and arbitrary and capricious, it was a narrow holding. It is not true that DACA can never be rescinded, and the Court rightly did not force DHS to maintain ad infinitum DACA’s discretionary policy. But if DHS wants to rescind the program, it is obligated by law to provide a reasoned analysis supporting its decision—considering all factors, including the serious reliance interests at stake. To rule otherwise would have set a dangerous precedent that provides agencies too much power without any accountability.


Gillian Beth Miller: J.D. 2020, UC Berkeley Law and California Law Review Vol. 108 Supervising Editor. Thank you to Professor Amanda Tyler and Professor Kenneth Bamberger for their instruction in Supreme Court Seminar and Administrative Law, respectively. And thank you to the CLR Online team, especially Alexandra Copper, Noor-ul-ain Hasan, and Miranda Rutherford for their diligent work editing this piece.

[1] 591 U.S. __ (2020).

[2] See, e.g., Elaine Kamarck and Christine Stenglein, How Many Undocumented Immigrants Are in the United States and Who Are They?, Brookings Inst. (Nov. 12, 2019), [] (noting the difficulty of counting undocumented immigrants); Jeffrey S. Passel, Measuring Illegal Immigration: How Pew Research Center Counts Unauthorized Immigrants In The U.S., Pew Research Ctr. (July 12, 2019), [] (same).

[3] Defined as “a form of prosecutorial discretion whereby the Department of Homeland Security declines to pursue the removal of a person unlawfully present in the United States.” Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 967 (9th Cir. 2017).

[4] 6 U.S.C. § 202(5) (2012).

[5] Memorandum from Janet Napolitano, Sec’y of Homeland Sec. to David V. Aguilar, Acting Comm’r of U.S. Customs and Border Prot.; Alejandro Mayorkas, Dir. of U.S. Citizenship and Immigration Servs.; and John Morton, Director of U.S. Immigration and Customs Enf’t (June 15, 2012), [] [hereinafter DACA Memorandum]; see also Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 486 (9th Cir. 2018).

[6] See Regents, 908 F.3d at 490.

[7] Id.

[8] Misha E. Hill & Meg Wiehe, State & Local Tax Contributions of Young Undocumented Immigrants, Inst. on Taxation and Econ. Policy (Apr. 30, 2018), [].

[9] See, e.g., Brief for The Nat’l Ass’n of Home Builders, et al. as Amici Curiae Supporting Respondents, Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U. S. __ (2020); Brief for the Serv. Emps. Int’l Union, et al. as Amici Curiae Supporting Respondents, Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U. S. __ (2020). During oral argument, Justice Breyer noted that he had “counted briefs in this Court . . . which state different kinds of reliance interests. There are sixty-six healthcare organizations. There are three labor unions. There are 210 educational associations. There are six military organizations. There are three home builders, five states plus those involved, 108, [he thinks] municipalities and cities, 129 religious organizations, and 145 businesses.” Oral Argument at 18:49, Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 US _ (2020), available at [].

[10] Memorandum from Jeh Charles Johnson, Sec’y of Homeland Sec. to León Rodriguez, Dir. of U.S. Citizenship and Immigration Servs.; Thomas S. Winkowsi, Acting Dir. of U.S. Immigration and Customs Enf’t; and R. Gil Kerlikowske, Comm’r of U.S. Customs and Border Protection (Nov. 20, 2014), [] [hereinafter Johnson Memorandum].

[11] United States v. Texas, 136 S. Ct. 2271, 2272 (2016) (per curiam); Texas v. United States, 809 F.3d 134 (5th Cir. 2015); Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).

[12] Texas, 809 F.3d at 146, 170–86. Notice and comment rulemaking, as outlined in the Administrative Procedure Act (APA) and expanded upon by courts, requires agencies to provide notice of the proposed rulemaking and an opportunity for public comment before enacting a rule. Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987). It is designed to increase public participation and provide full information to agencies before they make decisions. See id.

[13] Texas, 809 F.3d at 184; see also id. at 178–81.

[14] Id. at 181.

[15] Memorandum from Elaine Duke, Acting Sec’y of Homeland Sec. to James W. McCament, Acting Dir. of U.S. Citizenship and Immigration Servs.; Thomas D. Horman, Acting Dir. of U.S. Immigration and Customs Enf’t; Kevin K. McAleenan, Acting Comm’r of U.S. Customs and Border Protection; Joseph B. Maher, Acting Gen. Counsel; Ambassador James D. Nealon, Assistant Sec’y, Int’l Engagement; and Julie M. Kirchner, Citizenship and Immigration Servs. Ombudsman (Sept. 5, 2017), available at [] [hereinafter Duke Memorandum].

[16] Id.; Letter from Ken Paxton, Attorney General of Texas, to Jeff Sessions, Attorney General of the United States (June 29, 2017), [] (stating that the State would voluntarily dismiss its suit “[i]f, by September 5, 2017, the Executive Branch agrees to rescind the June 15, 2012 DACA memorandum and not to renew or issue any new DACA or Expanded DACA permits in the future,” but that otherwise the State would amend its complaint “to challenge both the DACA program and the remaining Expanded DACA permits.”).

[17] See Duke Memorandum, supra note 15.

[18] Id.

[19] During litigation challenging Acting Secretary Duke’s rescission of DACA, a district court in the District of Columbia stayed its order vacating DACA’s rescission to permit DHS to provide further clarification of its decision to rescind the program. See NAACP v. Trump, 298 F. Supp. 3d 209, 245–46 (D.D.C. 2018).

[20] Memorandum from Sec’y Kirstjen M. Nielsen, Dep’t of Homeland Sec. (June 22, 2018), [] [hereinafter Nielsen Memorandum].

[21] Id.

[22] Id.

[23] Id.

[24] See Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018).

[25] Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. C 17-05211 WHA, 2017 WL 4642324, at *8–9 (N.D. Cal. Oct. 17, 2017).

[26] In re United States, 138 S. Ct. 443, 445 (2017).

[27] Regents, 279 F. Supp. 3d at 1037–46.

[28] Regents, 908 F.3d at 486.

[29] Id. at 499–503.

[30] Id. at 510 (holding that “DACA was a permissible exercise of executive discretion”).

[31] Id. at 508 (quoting Texas, 809 F.3d at 186).

[32] Id.

[33] Id. at 509 (“As the district court laconically put it, ‘there is a difference between 4.3 million [people] and 689,800.’”); see also Texas, 809 F.3d at 181–82.

[34] See McAleenan v. Vidal, et al. (formerly Batalla Vidal v. Nielsen), 279 F. Supp. 3d 401 (E.D.N.Y. 2018) (enjoining the rescission of DACA because it was arbitrary and capricious); Casa De Maryland v. U.S. Dep’t of Homeland Sec., 924 F.3d 684 (4th Cir. 2019) (reversing the district court’s conclusion that the rescission was reviewable but not arbitrary and capricious, and concluding that the rescission was reviewable, arbitrary and capricious, and should be vacated under the APA); NAACP, 298 F. Supp. 3d at 249 (granting partial summary judgment against the government and vacating the rescission of DACA, concluding that it violated the APA).

[35] The Court granted certiorari in Regents, NAACP, and Batalla Vidal. The petition for certiorari in Casa de Maryland, No. 18-1469, remained pending.

[36] See 5 U.S.C. § 706(2)(A) (2012).

[37] Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015) (internal quotations omitted); see also 5 U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”).

[38] Marbury v. Madison, 1 Cranch 137, 177 (1803); see also 5 U.S.C. § 706 (2012) (“the reviewing court shall decide all relevant questions of law”).

[39] FTC v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J., dissenting) (noting that agencies had “become a veritable fourth branch of the Government, which has deranged our three-branch legal theories”).

[40] Mach Mining, 575 U.S. at 486 (quoting Dunlop v. Bachowski, 421 U.S. 560, 567 (1975)).

[41] 5 U.S.C. § 701(a)(2) (2012).

[42] Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).

[43] Id. (citation omitted); see also Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2568–69 (2019).

[44] Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (holding that lump-sum appropriations are committed to agency discretion because the “very point” of lump-sum appropriation is to give agencies flexibility to “adapt to changing circumstances”).

[45] Webster v. Doe, 486 U.S. 592, 600–01 (1988) (holding that firing decisions by the Central Intelligence Agency are unreviewable where there is “no basis on which a reviewing court could properly assess an Agency termination decision”).

[46] Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 282 (1987) (finding it impossib[le] [to] devis[e] an adequate standard of review” where an agency refused to reconsider a prior adjudicative decision).

[47] Heckler v. Chaney, 470 U.S. 821, 831–32 (1985) (noting the “general unsuitability for judicial review of agency decisions to refuse enforcement”).

[48] See Massachusetts v. EPA, 549 U.S. 497, 527 (2007) (contrasting the unreviewable nonenforcement decision in Chaney with agency refusals to initiate rulemaking, which “are less frequent, more apt to involve legal as opposed to factual analysis, and subject to special formalities, including a public explanation”) (internal quotation marks and citation omitted).

[49] Chaney, 470 U.S. at 831.

[50] Id. at 832.

[51] Id. at 824–26.

[52] Id. at 831–32.

[53] Id. at 832.

[54] Mach Mining, 575 U.S. at 489.

[55] Chaney, 470 U.S. at 832.

[56] The Secretary of Homeland Security is charged “with the administration and enforcement” of immigration laws. 8 U.S.C. § 1103(a)(1) (2012). She is vested with the authority to “establish such regulations; … issue such instructions; and perform such other acts as [she] deems necessary for carrying out [her] authority.” Id. § 1103(a)(2).

[57] Dep’t of Commerce, 139 S. Ct. at 2568.

[58] Webster, 486 U.S. at 600–01.

[59] See Dep’t of Commerce, 139 S. Ct. at 2568 (describing the need to “honor the presumption of judicial review”).

[60] Duke Memorandum, supra note 15.

[61] Citizens to Preserve Overton Park, 401 U.S. at 410.

[62] Marbury, 1 Cranch at 177; see also 5 U.S.C. § 706 (“the reviewing court shall decide all relevant questions of law”).

[63] Brief for Respondent at 17, Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U. S. __ (2020).

[64] Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 498 (2010) (quoting The Federalist No. 70 at 476 (Alexander Hamilton) (Jacob E. Cooke ed. 1961)).

[65] Regents, 908 F.3d at 498.
If an agency head is mistaken in her assessment that the law precludes one course of action, allowing the courts to disabuse her of that incorrect view of the law does not constrain discretion, but rather opens new vistas within which discretion can operate. That is, if an administrator chooses option A for the sole reason that she believes option B to be beyond her legal authority, a decision from the courts putting option B back on the table allows a reasoned, discretionary policy choice between the two courses of action.

[66] Id. (“…if the agency’s view of the law is instead confirmed by the courts, no injury to discretion results because the status quo is preserved.”).

[67] See id.

[68] Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U. S. __, at *21.

[69] NAACP, 298 F. Supp. 3d at 249.

[70] 5 U.S.C. § 706(2)(A) (2012).

[71] SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 94 (1943).

[72] Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42–43 (1983).

[73] Priscilla Alvarez, Will DACA Parents Be Forced to Leave Their U.S.-Citizen Children Behind?, The Atlantic (Oct. 21, 2017), [].

[74] See Duke Memorandum, supra note 15 (“Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated.”)

[75] Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016) (quoting F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)).

[76] See 5 U.S.C. § 706(2)(A) (2012). The Court has interpreted “arbitrary and capricious” to include when “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43. The Court has also noted that reviewing courts should not make up for such deficiencies by “supply[ing] a reasoned basis for the agency’s action that the agency itself has not given.” Id. (quoting SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 196 (1947)).

[77] Michigan v. EPA, 135 S. Ct. 2699, 2710 (2015) (emphasis added); Chenery I, 318 U.S. at 87.

[78] State Farm, 463 U.S. at 42–43; Encino Motorcars, 136 S. Ct. at 2125.

[79] Nat’l Tire Dealers & Retreaders Ass’n, Inc. v. Brinegar, 491 F.2d 31, 41 (D.C. Cir. 1974) (quoting Auto. Parts & Accessories Ass’n v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968)).

[80] See State Farm, 463 U.S. at 52 (requiring an agency decision be “the product of reasoned decisionmaking”).

[81] If it had been a new decision, the goals of promoting reasoned deliberation and transparency could still be effectuated. See id.

[82] Nielsen Memorandum, supra note 20.

[83] Chenery II, 332 U.S. at 196–97.

[84] The Duke Memorandum’s only mention of DACA’s unconstitutionality was its reliance on Attorney General Session’s letter stating that “[s]uch an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Duke Memorandum, supra note 15.

[85] 5 U.S.C. § 553(b)(3)(A) (2012).

[86] Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987).

[87] Brief for Respondent at 50, Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U. S. __ (2020).

[88] DACA Memorandum, supra note 5.

[89] 6 U.S.C. § 202(5) (2012).

[90] Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483–84 (1999).

[91] See Hiroshi Motomura, Immigration Outside the Law 29 (2014).

[92] Regents, 908 F.3d at 487 (citing 8 U.S.C. § 1227(d)(2) (“The denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for … deferred action[.]”); REAL ID Act of 2005, Pub. L. No. 109–13, § 202(c)(2), 119 Stat. 231, 313 (2005) (listing proof of “approved deferred action status” as “evidence of lawful status” for a driver’s license)).

[93] Regents, 908 F.3d at 488; see also Andorra Bruno et al., Cong. Research Serv., Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, 20–23 (July 13, 2012) (noting twenty-one such “administrative directives on blanket or categorical deferrals of deportation” issued between 1976 and 2011).

[94] Texas, 809 F.3d at 179.

[95] Id. at 181.

[96] Id. at 188.

[97] Regents, 908 F.3d at 489.

[98] Encino Motorcars, 136 S. Ct. at 2125.

[99] Fox, 556 U.S. at 516.

[100] Encino Motorcars, 136 S. Ct. at 2127.

[101] See Alvarez, supra note 74 (noting an estimated 200,000 U.S.-citizen children at risk of being separated from their DACA-recipient parents).

[102] Brief for Respondent at 41, Department of Homeland Sec. v. Regents of the Univ. of Cal., 591 U. S. __ (2020).

[103] Ike Brannon and Logan Albright, The Economic and Fiscal Impact of Repealing DACA, Cato Inst. (Jan. 18, 2017), [].

[104] See, e.g., State Farm, 463 U.S. at 43; see also United States v. Nova Scotia Food Prod. Corp., 568 F.2d 240 (2d Cir. 1977) (holding that agencies must disclose all scientific bases for their decisions and respond to all major comments received in notice and comment rulemaking).

Recommended Citation: Gillian Beth Miller, Separation of Powers, Checks and Balances, and the Future of DACA, Calif. L. Rev. Online (July 2020),

More From California Law Review Online

#BlackLivesMatter—Getting from Contemporary Social Movements to Structural Change

This piece is part of the Reckoning and Reformation symposium, which brings together scholars writing broadly about the law, justice, race, and inequality. The California Law Review published two other pieces as part of this joint effort with other law reviews: The Racial Reckoning of Public Interest Law Racial Justice for Street Vendors     Introduction […]

Racial Justice for Street Vendors

This piece is part of the Reckoning and Reformation symposium, which brings together scholars writing broadly about the law, justice, race, and inequality. The California Law Review published two other pieces as part of this joint effort with other law reviews: The Racial Reckoning of Public Interest Law #BlackLivesMatter—Getting from Contemporary Social Movements to Structural Change […]

The Racial Reckoning of Public Interest Law

This piece is part of the Reckoning and Reformation symposium, which brings together scholars writing broadly about the law, justice, race, and inequality. The California Law Review published two other pieces as part of this joint effort with other law reviews: Racial Justice for Street Vendors #BlackLivesMatter—Getting from Contemporary Social Movements to Structural Change     […]

Homegrown Discrimination

When foreign labor recruiters, acting on foreign soil as agents of domestic growers, intentionally prefer young, non-disabled men as temporary agricultural workers in the United States, federal antidiscrimination law traditionally has offered no recourse because of the presumption against extraterritorial application of domestic statutes.  Accordingly, prospective migrant workers face discrimination abroad by American employers’ agents […]