Department of Homeland Security v. Regents of the University of California

Justice Alito (pp. 46–47; 39:37): Let’s say that a – that there is a policy that certain – a certain category of drug cases will not be prosecuted in federal court. Lets say they are cases involving less than five kilos of cocaine. So case – cocaine cases with lesser amounts of drugs will not be prosecuted in federal court as a matter of enforcement priority. And then that is changed. So the five kilos is reduced to three. Would that be reviewable?

Leah Litman: No.

Justice Alito (p. 47; 40:08): What is – well, what’s the difference?

Leah Litman: An ordinary non-enforcement policy does not often trigger a host of associated benefits automatically or as a matter of law. But DACA did. Under longstanding statutes and regulations that predated DACA, all deferred action recipients (DACA or otherwise) received work authorization and eligibility for public benefits. Similarly, rescinding an ordinary non-enforcement policy will not automatically rescind that panoply of associated benefits. But the rescission of DACA did. By rescinding deferred action, the administration also took away a host of important entitlements like work authorization that expire automatically when the DACA period does.

Chief Justice Roberts (pp. 48–49; 41:46): But, Mr. Olson, the whole thing was about work authorization and these other benefits. Both administrations have said they’re not going to deport the people. So the deferred prosecution or deferred deportation, that’s not what the focus of the policy was. Yes, the other statutes provided that, but it was triggered by – by the memo.

Leah Litman: Two things, Mr. Chief Justice. One, that’s why the rescission of DACA is reviewable: The rescission memo automatically triggers termination of important benefits such as work authorization. Those benefits end when an individuals’ deferred action period ends. The fact that deferred action automatically triggered those benefits, you’ll recall, is why Texas and other states argued that the DACA program itself was reviewable. And what’s good for Texas should be good for us too: If granting those benefits is reviewable, surely taking them away is too. Second, deferred deportation is an important component of the DACA policy. This administration is already trying to deport several DACA beneficiaries, including Daniel Ramirez-Medina, by taking away their DACA status on pretextual grounds. (The administration first insisted Danny was in a gang; then admitted he was not; now it says he didn’t attend all of his GED classes.) So I’m not sure how much stock we can place in their promise not to deport DACA recipients to a country they don’t even know when the administration has already sought to violate that “promise.” And DACA became policy as a direct response to public pressure on the administration to do something to protect residents against deportation and the threat of deportation. So an important part of the policy was to function as a safeguard against deportation itself.

Justice Gorsuch (48:22): Well, if I might ask a question about that if we’re talking about the merits then, and then I – I’ll pass off the baton. The reliance interests that we’ve – we’ve talked about earlier. I – I think your – your friend on the other side would say we did address reliance interests in a paragraph and we could do it in 15 pages, but we’d say pretty much the same thing at the end of the day, and it would take another six years, and it would leave this class of persons under a continuing cloud of uncertainty and continue stasis in the political branches because they would not have a baseline rule of decision from this Court on this issue.

Leah Litman: Three things, Justice Gorsuch, if I may. First, there is no “harmless error” doctrine in administrative law that says agency actions are valid if the agency would reach the same result if it bothered to do so by following valid procedures, or through a decision-making process that was reasoned and not arbitrary and capricious. We demand that administrative agencies respond to comments and lay out their rationales to facilitate judicial review of agency decisions; that’s part of how we police agencies – by making them dot their i's and cross their t’s and engage in reasoned decision-making. It’s not all about the result; it’s about the process, too, and the work that an agency shows and the reasons that it gives. That’s missing here.

Second, I’m not sure it would be worse for DACA beneficiaries to be in a world where DACA continued during ensuing litigation than a world in which DACA didn’t exist at all – so they could not lawfully work and they could be deported. Third, there is absolutely nothing to prevent Congress from providing DACA beneficiaries with a path to citizenship or enacting an amnesty-style program today. Congress regularly legislates on matters that are the subject of pending litigation – including in this Court. That’s why United States v. Microsoft never reached a final resolution. Congress stepped in and passed legislation that made this Court’s intervention unnecessary. So Congress doesn’t have to wait for this Court.