Facts of the Case

Provided by Oyez

In 2012, the U.S. Department of Homeland Security (DHS) adopted a program—known as the Deferred Action for Childhood Arrivals (DACA)—to postpone the deportation of undocumented immigrants who had been brought to the United States as children and to assign them work permits allowing them to obtain social security numbers, pay taxes, and become part of “mainstream” society in the United States.


In 2017, after the national election, when the Trump administration replaced the Obama administration, DHS began a phase-out of DACA. The parties do not dispute the authority of a new administration to replace old policies with new policies, but the plaintiffs in this and related challenges allege that the new administration terminated DACA based on a mistake of law rather than in compliance with the law. Specifically, the Trump administration terminated DACA based on a conclusion that the Obama administration had created DACA “without proper statutory authority and with no established end-date” and thus that it was an “unconstitutional exercise of authority by the Executive Branch.”


The plaintiffs in this case and the related cases challenged this conclusion of law, alleging that the recission of DACA violated the Administrative Procedure Act because it was arbitrary and capricious, and because it was a substantive rule that did not comply with the APA’s notice-and-comment requirements. The challengers also alleged that the recission deprived DACA recipients of constitutionally protected liberty and property interests without due process of law and violated the Equal Protection Clause because it was motivated by discriminatory animus.


The U.S. Court of Appeals for the Ninth Circuit rejected the government’s motion to dismiss for lack of jurisdiction, finding that the DACA recission was not “committed to agency discretion by law” and that there was “law to apply.” Further, the Ninth Circuit granted plaintiffs a preliminary injunction restoring DACA, finding that the plaintiffs were likely to win on the merits of their arguments, they would suffer irreparable harm in the absence of preliminary relief, the balance of equities tips in the plaintiffs’ favor, and the injunction is in the public interest.



  1. Is the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals (DACA) policy judicially reviewable? 

  2. Is DHS’s decision to wind down the DACA policy lawful?


  1. The Department of Homeland Security’s decision to wind down DACA is reviewable, and its decision was arbitrary and capricious, in violation of the Administrative Procedure Act (APA). Chief Justice John Roberts authored the 5-4 majority opinion.

    As a threshold matter, the Court noted that the APA contains a rebuttable presumption that agency action is subject to judicial review. Because DACA was not merely a non-enforcement policy but affirmatively created a program for conferring immigration relief, it constitutes agency action subject to judicial review. Further, because the parties do not challenge any removal proceedings, the jurisdictional provisions of the Immigration and Nationality Act do not apply.

    Under the APA, an agency must supply “reasoned analysis” for its actions. The rescission memorandum failed to consider the possibility of eliminating benefits eligibility while continuing forbearance, relying solely on the Attorney General’s conclusion regarding the illegality of benefits. Moreover, the rescission memorandum failed to address whether there was “legitimate reliance” on the DACA Memorandum. While an agency does not need to consider all policy alternatives, it is required to assess “important aspects” of the problem before it. Given that deferred action was not only “within the ambit” of DACA, but its “centerpiece,” the failure to consider these options rendered the decision arbitrary and capricious.

    Joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, The Chief Justice also opined that the respondents in this case failed to establish a plausible inference that the rescission was motivated by animus, in violation of the equal protection guarantee of the Fifth Amendment.

    Justice Sonia Sotomayor filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. Though she joined the Chief Justice’s opinion as to the reviewability of the rescission and the conclusion that it was arbitrary and capricious, Justice Sotomayor argued that it was premature to dismiss the respondents’ equal protection claims and would thus remand the case to allow the respondents to develop those claims.

    Justice Clarence Thomas authored an opinion concurring in the judgment in part and dissenting in part, joined by Justices Samuel Alito and Neil Gorsuch. Justice Thomas argued that because the Obama administration’s implementation of DACA was unlawful, DHS’s decision to rescind the program is “clearly reasonable” and that the Court’s decision allows administrations to “unlawfully bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda” that “cannot be undone” without “sufficient policy justifications to the satisfaction of this Court.” Justice Thomas concurs in the judgment only as to the rejection of the equal protection claim.

    Justice Alito authored an opinion concurring in the judgment in part and dissenting in part, to reiterate his agreement with Justice Thomas’s dissent and with Justice Brett Kavanaugh’s separate dissent.

    Justice Kavanaugh authored an opinion concurring in the judgment in part and dissenting in part. Justice Kavanaugh argued that the Court should have focused not on the memorandum by DHS Secretary Duke, but the one by the subsequent DHS Secretary Nielsen, which the Court “jettison[ed]” as a post hoc justification. In Justice Kavanaugh’s view, the Nielsen Memorandum reasonably explained the decision to rescind DACA and thus would pass muster as an explanation for the rescission.

    Further analysis of the oral argument available at Oral Argument 2.0: https://argument2.oyez.org/2019/department-of-homeland-security-v-regents-of-the-university-of-california/