Introduction
On November 12, 2019, the Supreme Court of the us heard oral arguments in Department of Homeland Security v. Regents of the University of California, Docket No. 18-587. The Court is reviewing two issues:1. Whether the Department of Homeland Security's (DHS's) decision to wind down DACA is judicially reviewable; and
2. Whether the DHS's decision to wind down the DACA program is lawful.
The DHS initially rescinded the memorandum implementing DACA in 2017, arguing that the program itself was illegal which the rescission of DACA was in unison with DHS policy. This plan to end DACA was enjoined by several administrative district courts. These injunctions remained in situ despite DHS's plan to subsequently provide a more detailed explanation for its decision during a second rescission memorandum issued by former Secretary Kirstjen Nielsen. The Supreme Court agreed to review the difficulty on appeal from the choice of the us Court of Appeals for the Ninth Circuit. The Court consolidated the case with McAleenan v. Vidal, No. 18-589 (Second Circuit) and Trump v. NAACP, No. 18-588 (District Court for the District of Colombia), which involve similarly adverse decisions for the Trump Administration.
The Petitioner's oral arguments (the government) were presented by Noel J. Francisco, the lawman of the us . The oral argument time for the Respondents was split between the private Respondents and therefore the state Respondents. Theodore B. Olson represented the private Respondents while Michael J. Mongan, the lawman of San Francisco , California, represented the state respondents.
In this article, we'll examine the key points from the oral arguments within the DACA recession cases. to find out more about DACA and therefore the DACA rescission generally, please see our updated article on the topic [see article].
You may read the whole oral argument for yourself here [PDF version]. we'll include page cites to the transcript in our discussion of the oral arguments so as that you simply may follow along and find the first quotes from the oral arguments.
Petitioner's Oral Argument: lawman of the us , Noel J. Francisco
The lawman began his oral arguments by articulating the Government's position on the 2 questions presented by the Supreme Court. First, he argued that the DHS justifiably terminated DACA supported its position that DACA itself is against the law and its implementation had exceeded the DHS's authority (4-5). He added that the rescission of a policy involving the discretionary decision to not enforce the immigration laws against a category of aliens didn't violate the executive Procedures Act (APA) (4-5). Second, he argued that the choice to rescind DACA, which he described as a “stopgap measure,” was effectively the exercise of prosecutorial discretion, and thus wasn't reviewable by the Courts (5-6).Justice Ruth Bader Ginsburg asked the primary question of the lawman . She suggested that his arguments were at tension: If the rescission of DACA isn't reviewable because it's a matter of agency discretion, than how could the lawman simultaneously argue that the govt has no discretion to take care of DACA because DACA itself is against the law (6)? She suggested that the choice to rescind the program can only be discretionary if the Government's position is that it had the authority to implement the program and thus the authority to continue the program.
The lawman respondent to Justice Ginsburg by pointing to the Supreme Court 's decision in Heckler v. Chaney, 470 U.S. 821 (1985) [PDF version]. the difficulty in Chaney was whether the Food and Drug Administration's (FDA's) decision to not regulate drugs employed by states in completing the execution was reviewable. The Court ruled in favor of the FDA therein case, holding that there's a presumption of nonreviewability when workplace makes a non-enforcement decision committed to its discretion under the APA. The lawman took the position that the DACA rescission was almost like Chaney therein the govt advanced alternative legal and policy arguments for its decision (6-7). The lawman additionally took the position that albeit the govt had only advanced a legal argument and not also a policy argument for the rescission, review was foreclosed by the Supreme Court's decision in I.C.C. v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987) (“BLE”) [PDF version].
Chief Justice John Roberts followed this exchange with a hypothetical question: Were the govt to make a decision to not enforce the immigration laws in the least , would that be reviewable (8-9). The lawman suggested that this is able to be reviewable under an exception from the presumption of non-reviewability articulated in Chaney for the entire abdication of authority (8-9). The lawman distinguished the moment matter from the hypothetical, however, on the idea that the govt was actually trying to enforce the Immigration and Nationality Act (INA) by rescinding the DACA policy (8-9).
Justice Elena Kagan tried to determine the Solicitor General's position on the reviewability of the choice to implement DACA versus the choice to rescind it after it had been implemented. The lawman took the position that the choice to implement DACA within the first place is reviewable, but the choice to rescind DACA isn't (16-17). In support of this position, he explained that it had been the Government's position that application of the holding of BLE renders the rescission of DACA reviewable because the INA doesn't limit the government's authority to enforce the immigration laws against the category of aliens eligible for DACA (16-17).
Justice Stephen Breyer suggested that, while individual exercises of prosecutorial discretion might not be reviewable, a broad-based policy of prosecutorial discretion is reviewable (14). In light of this, Justice Breyer asked why the choice to rescind DACA, a broad prosecutorial discretion policy, wasn't reviewable (14). The lawman again cited to Chaney, explaining that the exercise of discretion entailed by DACA was on high-low-jack with the Court's earlier precedent and committed to the discretion of DHS — making its rescission un-reviewable.
Justice Samuel Alito inquired whether the rescinding of advantages granted to DACA beneficiaries — including employment authorization and eligibility for driver's licenses — made the rescission of DACA reviewable (17). Justice Alito's question relied on the choice of the us Court of Appeals for the Fifth Circuit in Texas v. us , 809 F.3d 134 (5th Cir. 2015) [PDF version], wherein the Fifth Circuit upheld an injunction against the DHS's plan to implement the previous DAPA program [see article], which was almost like , albeit broader than, DACA [see article]. One reason that the Fifth Circuit found that DAPA was reviewable was because, like DACA, it rendered beneficiaries eligible for ancillary benefits. An equally divided Supreme Court subsequently affirmed the Fifth Circuit's decision in us v. Texas, 136 S.Ct. 2271 (2016) [PDF version] [see article]. The lawman took the position that rescinding benefits granted along side DACA didn't make the rescission of DACA reviewable. He reasoned that because these benefits were merely a “collateral consequence” of the exercise of prosecutorial discretion, their revocation as a results of the rescission didn't make the underlying exercise of discretion itself reviewable (17-18).
The discussion next shifted as to if reliance interests weighed against rescinding DACA — in regard to the very fact that a lot of DACA beneficiaries and affected entities had made decisions supported the existence of the DACA policy. In response to an issue by Justice Neil Gorsuch, the lawman explained that albeit reliance interests weighed against the DHS's decision to rescind DACA, those interests are nevertheless limited by the very fact that DACA was intended, by its own terms, to be a stop-gap measure (20). Furthermore, he argued that former Secretary Nielsen took those reliance interests under consideration by providing for the orderly wind-down of DACA (20).
Justice Breyer appeared skeptical that the govt had adequately considered the reliance interests — noting that DACA has over 700,000 beneficiaries (24), as addressed within the numerous amicus briefs submitted by a spread of organizations representing different constituent groups. The lawman again asserted that these reliance interests were accounted for by former Secretary Nielsen (25-26). He also countered that under the idea suggested by Justice Breyer, one would need to conclude that DACA was illegal from the beginning because the previous administration didn't consider the reliance interests implicated in creating the DACA program (25-26).
Justice Kagan noted that in her memorandum, former Secretary Nielsen weighed the loss of the reliance interests that might result from rescinding DACA against her conclusion that DACA was illegal (26-27). Secretary Kagan asked whether this balancing test would be suffering from a conclusion that DACA wasn't illegal (26-27). The lawman explained that the last word decision wouldn't be affected because Secretary Nielsen provided three separate and distinct reasons for rescinding DACA, had explained that every reason would stand on its own as a basis for the rescission, and had concluded that anybody of the explanations would outweigh the reliance interests in favor of rescission (27). While the primary two grounds concerned DACA's legality (first that Nielsen believed the program was illegal, second that Nielsen believed there have been serious doubts that the program was legal), the third ground concerned only DHS's policy to avoid broad-based non-enforcement policies, thus not implicating DACA's legality in the least (27).
Justice Sonia Sotomayor expressed her skepticism with reference to the government's position that DACA was illegal which the reliance interests had been considered within the rescission decision. Regarding legality, Justice Sotomayor stated she was unsure how DACA was illegal when the govt has got to make discretionary decisions on the way to allocate limited resources to enforce the immigration laws all the time (28-31). Regarding reliance issues, she specifically suggested that the govt had did not consider the reliance interests created by the previous administration's assurances to those that came forward for DACA benefits that they might be safe (28-31). She added that rescinding DACA would destroy the lives of the individuals who had relied on those assurances (30).
Justice Sotomayor suggested that, under law , the pertinent reasons for the Court to think about were those provided at the time the choice was made — thus the explanations provided within the original rescission memorandum published by former Acting Secretary Elena Duke, and not the explanations relied upon by the lawman within the subsequent and more detailed memorandum published by former Secretary Nielsen (28-31). In light of this, Justice Sotomayor asked when the choice was really made that the rescission might be solely justified on policy grounds, phrasing the DHS's decision as “[t]hat this is often often not about the law; this is about our option to destroy lives” (28-31).
The lawman briefly addressed both lines of Justice Sotomayor's questioning. First, regarding legality, the lawman stated that there was no got to reach the question of whether DHS's legal assessment was correct because the rescission could stand entirely supported discretionary policy justifications (32). Regarding reliance, the lawman stated that the previous administration never presented DACA as being a program that might be effect in perpetuity, but rather as a stop-gap measure (32).
Justice Kagan asked whether it had been the Government's position that DACA violates a selected provision of the INA (35). The lawman again stated that the merits of DACA itself aren't dispositive to the legality of the choice to rescind DACA because the rescission could stand on other grounds (35). He added, however, that it had been the Government's position that thanks to DACA's breadth within the number of individuals covered and therefore the ancillary benefits offered, it might need to are expressly authorized by the INA so as to be legal (36).
Justice Breyer returned to a different point raised by Justice Sotomayor about whether the Court should consider the Nielsen memorandum for rescinding DACA in the least . He stated that under Chaney, it might seem that the Court should check out the reason provided at the time the choice to rescind DACA was made — the Duke memorandum — instead of an ex post de facto explanation (39). In light of this, Justice Breyer asked why the lawman opposed remanding the case to the lower courts for further proceedings (39). The lawman explained that former Secretary Nielsen had ratified the first rescission decision, meaning that it had been and is that the official agency position (40). He added that it might have made no sense to need DHS to reinstate DACA only to rescind it again on similar grounds (40). Justice Brett Kavanaugh observed that, in ratifying the first decision, former Secretary Nielsen stated that she would have rescinded DACA albeit it were legal, a characterization with which the lawman agreed (42-43).
Private Respondents' Oral Arguments: Theodore B. Olson
Olson opened his argument with two points. First, he stated that DHS has not explained its conclusion that DACA is unconstitutional (43-44), which DHS couldn't overturn a policy that has been in situ for five years and has over 700,000 direct beneficiaries supported an unsupported and erroneous legal conclusion (44). Second, Olson noted that the govt didn't cite to any statutory limitation in support of its argument that the DHS's rescission of DACA wasn't subject to review (45).Citing to the Supreme Court decisions in Weyerhaeuser Company v. Ross-Simmons Hardwood Lumber Co., Inc., 549 U.S. 312 (2007) [PDF version], Judulang v. Holder, 132 S.Ct. 476 (2011) [PDF version], and Mach Mining, LLC v. EEOC, 135 S.Ct. 1645 (2015 [PDF version], Olson argued that there's a presumption of reviewability of an agency's decision absent some express limitation within the law (45).Justice Alito asked whether the choice to narrow the scope of a non-enforcement prosecutorial discretion policy would generally be reviewable (46-48). Olson stated that it might not (46-48). However, Olson distinguished DACA from typical exercises of non-enforcement prosecutorial discretion in two respects. First, he stated that Congress has directed the Administration to allocate limited resources in enforcing the immigration laws. Second, he noted that DACA comes with certain associated benefits — although he stated that benefits incident to DACA aren't decisive to the difficulty which those benefits, like employment authorization, are covered by statutes (46-48). judge Roberts also engaged during this line of questioning (49-50).
Justice Gorsuch expressed concern that Olson didn't articulate a limiting principle on reviewability in his response to Justice Alito (51-53). Olson responded by stating that DACA is categorical and involves an outsized number of beneficiaries (51-53). Justice Gorsuch, however, responded that a lot of instances of prosecutorial discretion within the criminal context might be described similarly (51-53).
Olson distinguished DACA from Justice Alito's broad example by noting the scope of DACA and its substantial reliance interests, emphasizing that the govt had invited DACA beneficiaries to affirmatively breakthrough and join the program (53-56). Justice Gorsuch asked Olson what the govt would need to say about the reliance interests so as for rescission to be valid (58-59), while noting that the govt was concerned that remand would cause the case dragging on for several more years (58-59).
Olson responded that with reference to the matter of the substantial reliance of DACA recipients on its benefits, Nielsen was bound by the first Duke rescission decision (58-59) which was both insufficient and flawed, which the Nielsen memorandum didn't rectify the difficulty because it had been not an independent decision (58-59). Olson suggested that the govt would need to start the DACA rescission process over, articulating all the reliance concerns then providing a rational explanation for rescinding DACA (58-59).
Justice Kavanaugh asked Olson to deal with the very fact that the Nielsen memo expressly stated that the DACA rescission was justifiable purely on policy grounds (59-61). Olson asserted that because the Nielsen memo wasn't issued contemporaneously with the choice to finish DACA, it shouldn't be the main target of the Court's review (59-61). Olson again argued that the Nielsen memo didn't represent an independent decision, notwithstanding language within the memorandum stating otherwise (59-61).
Justice Kavanaugh asked whether Olson believed that the chief has the authority to finish DACA in the least (61). Olson acknowledged that the govt could, under certain circumstances, terminate DACA (61).
Justice Kavanaugh asked if the Court were to think about the Nielsen memorandum on its own, whether the reasoning for rescission articulated would be sufficient, and specifically asked Olson to elucidate his position on the Nielsen memorandum's treatment of reliance interests (61-63). Olson stated that it might be insufficient which the Nielsen memorandum did not address specific reliance interests (61-63). When Justice Kavanaugh asked Olson what explanation would be sufficient Olson suggested that DHS could have analyzed the value and benefits of rescinding DACA and why it had been overturning a previous Office of Legal Counsel opinion on DACA's legality (61-63).
Justice Sotomayor followed abreast of the delay point addressed by Justice Gorsuch. She asked Olson whether the DACA rescission was distinguishable from other deferred action decisions therein the chief here had provided both legal and policy grounds for ending DACA instead of only policy grounds (63-64). Olson agreed with this suggestion (63-64).
Regarding the likelihood of remand, judge Roberts and Justice Alito asked whether an in depth explanation by the lawman of the three grounds provided by Nielsen therein clearly articulated why each ground independently supported terminating would satisfy review requirements (65-66). Olson stated that this sort of explanation could satisfy review requirements (65-66).
State Respondents' Oral Arguments: Michael J. Mongan
Mongan advanced three main arguments against the validity of the DACA rescission. First, because the Nielsen memorandum didn't articulate a replacement rationale for rescinding DACA, the govt was bound by its original rational issued contemporaneously with the first decision (66-67). Second, the first rationale didn't take under consideration the substantial reliance interests that weighed against rescission (66-67). Third, the premise of the first rationale that DACA is unlawful is wrong (66-67).Regarding reviewability, Mongan stated that the difficulty here is distinguishable from Chaney. Because the Government's own position is that DACA is unlawful, the govt 's position is necessarily that DACA isn't committed to agency discretion — since the Government has no discretion to implement an unlawful policy (66-67).
Mongan argued that the Government's rescission decision hinges on whether DACA itself is lawful (68-69). He noted that the govt didn't deny that it's deferred action authority or that the population of DACA beneficiaries may be a compelling population of people (68-69).
Mongan stated that the DHS Secretary's deferred action authority derives from 6 USC 202, which outlines the duties of the Secretary of Homeland Security (69). He argued that Congress codified the DHS Secretary's authorities after prior exercises of deferred action for classes of aliens (69). judge Roberts interjected, noting that DACA is way greater in scope than prior exercises of deferred action (69-70). Mongan responded that the Family Fairness Policy, which was implemented in 1990 and codified by Congress in 1991, applied to an identical percentage of the prevailing nonimmigrant population at the time to DACA today — some extent raised by Justice Sotomayor (69-70).
Justice Kagan asked whether the rescission would are reviewable under Chaney if it were based solely on policy grounds with none allusion to DACA's actual or potential illegality (71). Mongan stated that it might still be reviewable because it involves a broad policy for the exercise of deferred action instead of a concrete decision to not enforce a specific statute with reference to particular actions — which was the difficulty in Chaney (71). Mongan made this distinction again in response to questions from Justice Alito (72).
Justice Breyer asked Mongan where he would draw the road between reviewability and non-reviewability within the deferred action context (73-74). Mongan declined to interact during this line-drawing, suggesting within the alternative that the Court should specialise in the facts presented during this particular case, which the choice to terminate DACA was reviewable supported those facts (73-74). Mongan further clarified in his exchange with Justice Breyer that the choice to enforce a deferred action policy is distinguishable within the reviewability context from the choice to not enforce a specific law regarding particular actions (75).
Justice Gorsuch expressed confusion over whether Mongan believed that DACA wouldn't are reviewable if it had been based solely on policy grounds or if there was something about DACA itself that made it distinguishable from Chaney (76-77). Mongan agreed with the latter suggestion — that it's the scope of DACA that places it outside the scope of Chaney (76-77). Justice Gorsuch suggested that this position would appear to implicate prosecutorial discretion broadly — which it had been unclear where Mongan would draw the road between reviewability and non-reviewability (76-77). Mongan again declined to draw a line, stating that the DACA rescission was reviewable supported the facts presented (76-77).
Chief Justice Roberts asked whether the DACA rescission would be reviewable had the Attorney General provided a opinion stating that DACA was more likely illegal than not, with regard to the Fifth Circuit's DAPA decision, which was affirmed by an equally divided Supreme Court. Mongan stated that it might still be reviewable, which the reason suggested by the judge would be insufficient given the substantial reliance interests at stake (78-79).
Justice Kagan asked whether the plaintiffs would have challenged the DACA termination during a similar way had the govt balanced its legal concerns against specific reliance interests during a more detailed way (79). Mongan stated that they might have likely presented an identical challenge to the DACA rescission — although the conceded that courts may find such a hypothetical justification sufficient (79). Mongan returned to the moment case, however, noting that the govt didn't justify its decision with the type of detailed balancing test described by Justice Kagan (79).
Chief Justice Roberts asked that if the Court were to remand, whether a legal explanation supported the Fifth Circuit DAPA decision would be sufficient (79). Mongan stated that this is able to be insufficient — which the govt would need to articulate its own specific legal theory supporting rescission (79-80).
Justice Breyer asked — in light of Mongan's answers — what the purpose of remanding the case would be (82-83). Mongan stated that we can't be sure what the DHS would decide if it had been presented with a choice that DACA is lawful (82-83).
Justice Kavanaugh noted that the District Court for the District of Colombia remanded to the DHS to elucidate its DACA rescission, which then-Secretary Nielsen had done so (83-85). He noted that in elaborating on the choice , both Nielsen and therefore the lawman had stated that they might have rescinded DACA solely on policy grounds albeit they believed that the underlying policy was legal (83-85). Thus, Justice Kavanaugh was unclear what would be accomplished by another remand. Mongan reiterated that he didn't consider Nielsen's memorandum to represent an independent decision — but Justice Kavanaugh appeared unconvinced by this argument (83-85). within the alternative, Mongan took the position that, notwithstanding the Nielsen memorandum's statements to the contrary, justification for rescission was ultimately tied to the DHS's view that DACA is against the law (84-86).
Rebuttal Argument of lawman Francisco
Having heard the arguments of the respondents, the lawman made clear that former Secretary Nielsen provided three distinct grounds for rescinding DACA, and stated that every ground outweighed any reliance interests break away the others (87-88). The lawman noted that the third of those grounds implicated only policy considerations (87-88).Justice Ginsburg appeared unconvinced, stating that the Court cannot know needless to say what former Secretary Nielsen's decision would are had it been clearly recognized that DACA is legal (89). She suggested that the Nielsen memorandum was “infected by the idea” that DACA is against the law (89). The lawman restated that the memorandum as long as each ground supporting rescission stands on its own (89-90). He stated that the choice fell under Chaney -noting that the FDA therein case had provided alternative legal and policy justifications for its non-enforcement decision (89-90). The lawman argued that the choice to rescind DACA was reasonable no matter one's views of the legality of the program (90).
Justice Kagan questioned whether former Secretary Nielsen had weighed the policy justifications for terminating DACA alone against reliance interests — the lawman stated that she had (90-91). Justice Breyer stated that the Nielsen memorandum offered conclusions without reasons for those conclusions — but the lawman responded that the choice to not facilitate further violations of the immigration laws may be a reason for rescission in and of itself (91-92).
The lawman concluded by stating that the Court needn't consider the underlying legality of DACA if it concludes that any of the explanations for rescission presented by former Secretary Nielsen are sufficient. However, the lawman stated that if the Court didn't find the previous Secretary's justifications for rescission, it should address whether DACA is legal instead of remanding. To support this conclusion, the lawman stated that the Administration can't be forced to take care of an illegal policy. The lawman made clear that the Government's position is that DACA is against the law (92).
No comments:
Post a Comment