Legal Sidebari
DACA Rescission: Legal Issues and Litigation
Status
May 23, 2018
On September 5, 2017, the Department of Homeland Security (DHS) issued a memorandum announcing
its decision to rescind the Deferred Action for Childhood Arrivals initiative (DACA), which the Obama
Administration implemented in 2012 to provide temporary relief from removal and work authorization,
among other benefits, to certain unlawfully present aliens who arrived in the United States as children. As
justification for the rescission, DHS relied upon a letter from Attorney General Sessions concluding that
DACA was illegal—specifically, that it lacked “proper statutory authority,” was “an unconstitutional
exercise of authority by the Executive Branch,” and would likely be enjoined in “potentially imminent
litigation.”
Litigation has ensued at cross purposes. DACA recipients and other parties, including states and
universities, filed lawsuits in four federal district courts challenging the rescission as unlawful. Two of
those district courts have issued nationwide preliminary injunctions that currently require DHS to
continue processing applications for DACA relief from individuals who have obtained DACA relief in the
past (renewal applicants), but not applications from individuals who would be first-time DACA enrollees.
The order of a third district court—which will go into effect on July 23, 2018, unless DHS provides new
reasoning that adequately justifies the rescission in the court’s view—would require DHS to process both
first-time and renewal applications for DACA relief. After these district court decisions, Texas and six
other states filed a separate lawsuit seeking to bar DHS from continuing to grant DACA relief. That
lawsuit could result in a preliminary injunction that contradicts the preliminary injunctions already in
place in the rescission cases. The case is before a federal district judge in Texas who in 2015 barred the
Obama Administration from implementing a different deferred action initiative to protect certain
unlawfully present aliens with U.S. citizen or lawful permanent resident children.
Collectively, the lawsuits to preserve DACA and to force its termination raise the related issues of
whether DHS offered an adequate justification for the DACA rescission and whether DHS lacks, as
Attorney General Sessions concluded, statutory and constitutional authority to administer DACA.
Enactment of statutory protections for certain childhood arrivals would likely moot the lawsuits in
substantial part or entirely, but a range of legislative proposals to this effect—including those considered
during open debate on the Senate floor in February 2018 in the wake of a government shutdown over the
childhood arrivals issue—have not resulted in new law. Some Members have continued to pursue similar
legislative efforts, however.
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Litigation Overview: Tables of Ongoing Cases
Cases Challenging DACA Rescission
Federal
Case
Relief Granted
Status
District Court
Northern
Regents of the
Jan. 9, 2018: Nationwide preliminary
DHS appeal pending before
District of
University of
injunction requiring DHS to continue
the Ninth Circuit, which
California
California v.
processing DACA renewal
held oral argument on May
(N.D. Cal.)
DHS, No. C
applications.
15, 2018. Previously, the
17-05211 WHA
Supreme Court denied a
DHS petition for direct
Supreme Court review of
the preliminary injunction.
Eastern District Batalla Vidal v. Feb. 13, 2018: Nationwide preliminary DHS appeal pending before
of New York
Nielsen, 16-
injunction requiring DHS to continue
the Second Circuit. A
(E.D.N.Y.)
CV-4756
processing DACA renewal
proposed calendaring order
(NGG) (JO)
applications.
would set oral argument for
the end of June 2018.
District of
Casa de
March 5, 2018: The court ruled
Recently filed cross-appeals
Maryland (D.
Maryland v.
primarily in DHS’s favor, denying
pending before the Fourth
Md.)
DHS, RWT-17-
plaintiffs’ request for a preliminary
Circuit.
2942
injunction against the DACA phase-out
but granting them an injunction that
bars DHS from using DACA
application information for
enforcement purposes.
District of
NAACP v.
April 24, 2018: The court granted
Case docket reflects no
Columbia
Trump, 17-
summary judgment substantially in
activity since the April 24,
(D.D.C.)
1907 (JDB)
plaintiffs’ favor, vacating the DACA
2018 decision.
rescission memo and remanding it to
DHS. The vacatur order is stayed for
90 days (i.e., until July 23, 2018) to
give DHS “an opportunity to better
explain its rescission decision.” If the
order goes into effect on that date, it
will require DHS to process initial and
renewal applications for DACA relief.
Case Challenging DACA Implementation
Texas v. United States,
Southern District of No ruling issued yet on
Plaintiffs’ motion for a
1:18-cv-00068
Texas (S.D. Tex.)
relief.
preliminary injunction
barring new grants of
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DACA relief pending
before the district court,
which has ordered the
parties to propose a
briefing schedule by May
25, 2018.
DHS’s Justification for the DACA Rescission
The DHS rescission memo relied on two sources to support the conclusion that DACA “should be
terminated” due to concerns about its legality: the Attorney General letter described above, and Texas v.
United States, a 2015 decision by the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit). Texas
held that an Obama Administration initiative with two parts—(1) a planned expansion of DACA, which
would have covered more childhood arrivals and extended the term of relief from two years to three, and
(2) a planned implementation of the Deferred Action for Parents of Americans and Lawful Permanent
Residents initiative (DAPA)—likely violated the Administrative Procedure Act. An equally divided
Supreme Court affirmed Texas without opinion in 2016. DAPA would have offered relief to certain
unlawfully present aliens with children who are U.S. citizens or lawful permanent residents. DAPA had
potential to protect many more aliens than DACA. Whereas DACA has provided relief at some point to
approximately 800,000 childhood arrivals out of a potentially eligible population of 1.3 million, DHS
estimated in 2014 that DAPA could have offered relief to as many as four million unlawfully present
parents. Although Texas did not concern DACA itself (only a planned expansion of it that never went into
effect), the DHS memo suggested that aspects of the case cast doubt on DACA’s legality.
Primary Legal Issues in Cases Challenging the DACA
Rescission
The salient issue in the four rescission lawsuits is whether the DACA rescission is substantively valid
under § 706(2)(A) of the APA, which directs courts to “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.” This standard requires DHS to provide a “satisfactory explanation” showing that
“good reasons” support its decisions, including decisions to change existing policies. Two district
courts—the U.S. District Court for the Eastern District of New York (E.D.N.Y.) and the U.S. District
Court for the Northern District of California (N.D. Cal.)— held that the DHS rescission memo fails this
test because the courts rejected the Attorney General’s conclusions about DACA’s illegality. DACA is a
lawful exercise of executive branch statutory and constitutional authority, these courts concluded, and
DHS’s reliance upon the Attorney General’s advice to the contrary to justify the rescission was therefore
legally erroneous and inadequate under the “arbitrary and capricious” standard. A third district court, the
U.S. District Court for the District of Columbia (D.D.C.), held the DACA rescission arbitrary and
capricious under a different rationale. Instead of rejecting DHS’s underlying legal conclusion about
DACA’s illegality, the D.D.C. rejected the supporting reasoning that DHS and the Attorney General
offered for that conclusion as “scant,” “barebones,” and therefore unsatisfactory under § 706(2)(A). All
three courts also rejected DHS’s contention that “litigation risk” associated with DACA constituted an
independent and satisfactory justification for the rescission. In contrast, the U.S. District Court for
Maryland (D. Md.) determined that DHS had a “reasonable basis” to conclude that DACA is illegal, given
the outcome of the DAPA litigation and the advice from the Attorney General, and that the rescission
memo therefore satisfies § 706(2)(A).
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For the two district courts that issued preliminary injunctions, then, the issue of the substantive validity of
the DACA rescission under § 706(2)(A) of the APA boiled down to whether DACA was legal in the first
place. Did the Executive contravene the immigration restrictions in the Immigration and Nationality Act
(INA), or the Executive’s constitutional duty under the Take Care Clause to pursue faithful execution of
those restrictions, by implementing a program with potential to provide temporary relief from removal
and other benefits to more than one million aliens whose presence violates the INA? Or does DACA fall
within the scope of the enforcement discretion that DHS, like all federal enforcement agencies, enjoys to
allocate its prosecutorial resources in the manner that the agency determines best serves the national
interest, particularly in light of the fact that the number of unlawfully present aliens in the United States
far exceeds DHS’s capacity to remove them? These questions do not yet have authoritative answers. A
2014 opinion by the Office of Legal Counsel at the Department of Justice—heavily relied upon in the
E.D.N.Y. and N.D. Cal. decisions—concluded that DAPA was legal even though it might have offered
protections to roughly four times as many unlawfully present aliens as DACA and even though DAPA
arguably trenched more directly upon the statutory scheme (given that the INA contains a mechanism for
parents of U.S. citizens and lawful permanent residents to acquire lawful immigration status). The Fifth
Circuit concluded to the contrary in Texas. The Supreme Court has endorsed immigration authorities’
practice of granting deferred action to unlawfully present aliens in individual cases “for humanitarian
reasons or simply for [the authorities’] own convenience,” but other than its split affirmance without
opinion in Texas, the Supreme Court has not addressed the scope of DHS’s authority to grant deferred
action on a programmatic basis.
The disagreement among district courts in the DACA rescission cases also stems in part from a difference
in opinion about the appropriate standard of review of an agency action that is premised upon a legal
justification. Whereas the E.D.N.Y. and N.D. Cal. reviewed DHS’s legal conclusion about DACA’s
illegality de novo—that is, without according it deference—the D. Md. asked only whether DHS had a
“reasonable basis” for the legal conclusion. (The D.D.C. rejected the sufficiency of DHS’s supporting
reasoning and did not reach an assessment of the adequacy of the legal conclusion itself.) All three courts
would appear to agree that, had DHS justified the rescission on policy instead of legal grounds, then a
narrow standard of review would apply that would not allow the courts “to substitute [their] judgment for
that of [DHS].” For example, if DHS had reasoned that DACA did not comport with the agency’s policy
of applying “the immigration laws . . . against all removable aliens” or that DACA undermined the
deterrent effect of the INA’s removal provisions, then the narrow standard of review would likely govern.
But DHS proffered a primarily legal justification (concerns about DACA’s illegality) for the rescission,
not a classic policy justification. The E.D.N.Y. and N.D. Cal. relied on two Supreme Court precedents for
the proposition that such a legal justification should trigger judicial review of the ultimate correctness of
the agency’s legal conclusion and not merely of whether the conclusion has a reasonable basis in law.
Whether the appellate courts and, perhaps ultimately, the Supreme Court agree with this interpretation of
those precedents could bear heavily on the outcome of the DACA rescission litigation.
The rescission cases present a number of other legal issues. DHS argues that two statutes bar judicial
review of the rescission, including one statute that precludes review of “agency action [that] is committed
to agency discretion by law,” but all four district courts disagreed. The D.D.C., which devoted
considerable analysis to the reviewability issue, reasoned that an agency cannot avoid judicial review of
an enforcement policy that the agency portrays to the public as legally required; the agency “may escape
political accountability or judicial review, but not both.” The Ninth Circuit signaled interest in this issue
by ordering supplemental briefing on it. Other legal issues include whether the rescission is procedurally
invalid under the APA because DHS did not subject it to notice and comment procedures, and whether the
rescission violates DACA recipients’ constitutional rights to equal protection and procedural due process.
All four district courts either resolved these issues in favor of the government or found it unnecessary to
assess their merits in resolving the challengers’ requests for injunctive relief.
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Primary Legal Issues in Texas’s Challenge to DACA
Texas and six other states contend in their complaint that DACA is unlawful on statutory and
constitutional grounds, so the merits of the lawsuit will likely turn upon the same issues about DACA’s
legality that are at the center of the rescission cases. A threshold issue exists as to whether the states have
suffered an injury from DACA adequate to establish their standing to sue, but the Fifth Circuit resolved
that issue in favor of the states that challenged DAPA in the 2015 Texas case and the outcome is unlikely
to change in the DACA lawsuit. The states’ challenge to DACA’s legality does, however, raise a unique
and thorny issue about remedies. The states seek a nationwide preliminary injunction that bars DHS
“from implementing the 2012 DACA memo by issuing or renewing DACA permits.” In other words, the
states ask the court to order DHS not to do something (continue administering the DACA initiative for
renewal applicants) that other courts have already ordered DHS to do. The case thus raises the prospect of
conflicting nationwide injunctions directed at the same federal agency. There is some authority for the
position that federal courts confronted with this prospect should apply principles of judicial comity and
equitable relief to fashion remedies that avoid direct conflict. But nationwide injunctions have become
increasingly common only in recent years, as another Sidebar explains, and the law governing potential
conflicts is not well developed. One scholar analyzing the recent trend in nationwide injunctions observed
that “[c]onflicting injunctions can be avoided with judicial restraint and good luck, but neither one is sure
to last forever.” The federal government, for its part, told the Ninth Circuit during oral argument
concerning the validity of one nationwide injunction that the government is “still figuring out” what it
would do if DHS becomes subject to conflicting injunctions.
Author Information
Ben Harrington
Legislative Attorney
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