US Supreme Court Blocks DACA Rescission, for Now

June 22, 2020

In a landmark 5–4 decision issued June 18, the US Supreme Court held that the Department of Homeland Security’s rescission of the Deferred Action for Childhood Arrivals (DACA) program was unlawful agency action.

DACA Program

Announced by the Department of Homeland Security (DHS) in 2012, the DACA program provides immigration relief, including temporary forbearance of removal from the United States, work authorization eligibility and various federal benefits, to certain unauthorized aliens brought to the United States as children. Since implementation, approximately 700,000 aliens have turned to the DACA program for reprieve.

How We Got Here

In 2014, DHS expanded eligibility for DACA and announced a new program, Deferred Action for Parents of Americans and Lawful Permanent Residence (DAPA), which would offer the same immigration relief to parents of US citizens or lawful permanent residents. Twenty-six states petitioned against DHS’s expansion of DACA and implementation of DAPA, resulting in a nationwide preliminary injunction.

The change in presidential administrations led to a shift in DHS’s position on DACA. The Acting Secretary of Homeland Security announced the termination of the DACA program, noting that the agency believed the DACA program to be unlawful. Under this guidance, DHS began rejecting new DACA applications and only accepting renewal applications for existing DACA recipients whose benefits expired within six months.

Litigation ensued that challenged the agency’s termination of the DACA program. The consolidated cases are Department of Homeland Security v. Regents of the University of California, Trump v. NAACP and McAleenan v. Vidal. The District Court in NAACP agreed that the rescission was inadequately explained and offered DHS the opportunity to provide a fuller explanation of its conclusion that DACA was unlawful.

The Decision

Chief Justice John Roberts wrote the majority opinion, except as to part IV regarding the equal protection claims.

  • The majority opinion dismissed the government’s challenge that DHS’s rescission decision is unreviewable, relying heavily on the text of the Administrative Procedures Act (APA) and relevant APA case law.
  • Finding that DHS’s decision to rescind DACA was arbitrary and capricious under the APA, the Court reasoned that DHS “failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.”
  • The plurality agreed that respondents failed to establish a plausible inference that DHS’s rescission of the DACA program was motivated by animus in violation of the equal protection guarantee of the Fifth Amendment. In her dissenting opinion, Justice Sonia Sotomayor argues the opposite.

The majority agreed that the record “raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.” Accordingly, the Court remanded to DHS, so that it may consider the problem anew.

The Dissent

Several of the justices filed dissenting opinions, including Justices Clarence Thomas, Brett Kavanaugh, and Samuel Alito.

  • In his dissent, Justice Thomas, with whom Justices Alito and Neal Gorsuch join, criticized the majority for perpetuating a decision to “unlawfully wield power in direct contravention of the enabling statute’s clear limits.”
  • In his dissent, Justice Kavanaugh disagreed with the majority’s treatment of the Nielsen Memorandum and found that DHS sufficiently explained its reasoning for rescinding DACA.
  • Justice Alito opined that the Court, “without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term.”

What Now?

While the Court’s opinion invalidates DHS’s previous attempt to rescind DACA, it may have given DHS a roadmap on how to successfully end the program in the future. Until then, it appears that DACA is now available to first-time applicants and those seeking renewal.


If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord

Laura C. Garvin

For additional government-related guidance, learn more about our Washington strategic government relations and counseling practice.