Today the Supreme Court issued a 5-4 decision rejecting the Trump administration’s effort to get rid of DACA – Deferred Action for Childhood Arrivals.
Robert’s opinion is worth a read. But here’s my summary of the main points.
Administrative action must be supported by a reason at the time the action is taken and if it is changing a previous policy it must evaluate how it affects people who relied upon the earlier policy. DACA did two things, conferred benefits and deferred removal proceedings. Homeland Security Secretary Elaine Duke issued a memo explaining the termination of DACA at the time relying upon a 5th Circuit ruling declaring DAPA (a similar program for parents) illegal. But the 5th Circuit opinion only addressed benefits not foregoing removal. New Sec’y Kirstjen Neilsen expanded upon the reasons nine months later, but post-hoc (after the event) explanations that are different cannot be considered. She could have issued a new termination decision and explained it but did not. So her memo would not be considered. Homeland Security failed to explain why it would change the policy of foregoing removal proceedings and evaluate how it affected people who relied on DACA. So it was arbitrary and capricious.
Thomas in dissent was incredulous. So wait, they have to follow the rules to get rid of a policy put in place without following the rules?
Robert’s answer is yes.
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