Courthouse Steps Decision Teleforum: Department of Homeland Security v. Regents of the University of California

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On June 18, 2020, the Supreme Court released its decision in the case of Department of Homeland Security v. Regents of the University of California. By a vote of 5-4, the judgment of the U.S. Court of Appeals for the Ninth Circuit (DHS v. Regents) was vacated in part and reversed in part, the judgment of the D.C. Circuit (Trump v. NAACP) was affirmed, and various orders of the Second Circuit (Wolf v. Vidal) were vacated, affirmed in part, or reversed in part.  All the cases are remanded. The Chief Justice's opinion for the Court was joined by Justices Ginsburg, Breyer, and Kagan in full, and by Justice Sotomayor as to all but Part IV.  Justice Sotomayor concurred in part, concurred in the judgment in part, and dissented in part.  Justice Thomas concurred in the judgment in part and dissented in part, joined by Justices Alito and Gorsuch.  Justices Alito and Kavanaugh also filed opinions concurring on the judgment in part and dissenting in part. Our expert selection of speakers will discuss the decision and implications for the future.

Featuring: 

Dr. John C. Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Chapman University Fowler School of Law

Christopher Hajec, Director of Litigation, Immigration Reform Law Institute

Mario Loyola, Senior Fellow, Competitive Enterprise Institute

William A. Stock, Partner , Klasko Immigration Law Partners, LLP

 

 

This call is open to the public - please dial 888-752-3232 to access the call.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Dean Reuter:  Welcome to a special Courthouse Steps Edition of The Federalist Society's Teleforum Conference Call as, today, June 19, 2020, we discuss the Department of Homeland Security v. Regents of the University of California—the DACA case. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.

 

      We're very pleased to welcome, today, four guests to our Teleforum conference call. We're going to hear, in order, from William A. Stock. He's a partner in at Klasko Immigration Law Partners. He'll be followed in opening remarks by Christopher Hajec. He's the Director of Litigation at the Immigration Reform Law Institute. Then we'll hear from Dr. John Eastman, Henry Salvatori Professor of Law and Community Service and Director of the Center for Constitutional Jurisprudence, all at the Chapman University Fowler School of Law. And we'll wrap up opening remarks with Mario Loyola, Senior Fellow at the Competitive Enterprise Institute.

 

      A reminder that this call is being recorded, and all opinions are those of the experts. We're also likely to transcribe this call for use as a podcast and put on our website in the future.

 

      We'll hear opening remarks of about five minutes from each of our four guests and maybe some back and forth but then, as always, questions from the audience. So have those in mind.

     

      With that, Bill Stock, the floor is yours.

 

William A. Stock:  Thank you very much, Dean, and thank you to The Federalist Society.

 

      I've been asked to sort of quickly set up the stage for how the decision came about. If you remember back to 2011, 2010, there were a lot of negotiations about providing a path forward to legal status for some or all of the approximately 11 to 12 million people in the United States and, among those people, among the most sympathetic are young people who were brought to the United States, often as children. They had no particular control over the fact that they came to the United States and, of course, given that there are relatively few pathways for someone who enters the United States illegally to become legal in the United States, many of these children have grown up, have graduated from high school, have graduated from college. And there was an enormous pressure to provide some form of relief for them.

 

      In 2012, the Obama administration announced the DACA program. It stood for Deferred Action for Childhood Arrivals. And it set out certain criteria in terms of a child who had been brought to the United States before the age of 16, had lived in the United States, did not have a criminal record, could come forward and could request a recognition that they were a low priority for deportation. That is called deferred action in immigration law that we've practiced. This first came to public light in the 1970s when it was applied to John Lennon in a famous case, and he was granted deferred actions by the fact of his cannabis possession convictions.

 

      So it has always existed as a form of prosecutorial discretion within the immigration law that, for certain people, there are reasons why their deportation should be deferred. This was a relatively large-scale exercise of that authority that affected a potential population of approximately 1.7 million at the time the program stopped taking new applications. When President Trump cut it off in 2017, there were about 700,000 individuals who had come forward and been granted that deferred action.

 

      With deferred action comes employment authorization and the eligibility for certain limited public benefits. Most public benefits are, of course, not eligible to anyone who has not been a permanent resident for at least five years and is not a citizen of the U.S. So this case came about as a challenge to President Trump's rescission of the DACA program. So that's kind of where we are.

 

      The history of this -- I think there are sort of three things I want to highlight. And that is, when you read Justice Thomas's dissent, I think his argument is that it all boils down to the perception that the deferred action program was illegally created and was an unlawful exercise of executive power. So I want to really take that on. Second, I want to look just briefly at the separation of powers and administrative law issues that come out of the fact that this was issued in reliance on an illegal opinion of Attorney General Sessions. And then, third, the federalism considerations, briefly, that we may want to think about.

 

      So the first thing, this idea that, because it was created, as Justice Thomas says, without statutory authority and without going through the rulemaking process, I want to just raise that. The Immigration and Nationality Act is somewhat unusual in that it both sets forth a comprehensive statutory scheme for regulating the admission, expulsion, and incorporation of foreign nationals into the population of the United States, but it also contains in with it provisions that allow the President or executive officers to ignore this statute when it's determined to be detrimental to the interests of the United States. For example, Section 212(f) has become very famous through the travel ban cases but also for the expansion of the admission of people to the United States. We don't hear very much about Section 212(d)(5), which allows the President to parole people into the United States for significant public benefit.

 

      So this exercise of deferred action calls to mind two exercises of similar authority. So, Executive Order 12711 was issued by George H. W. Bush in 1989 in response to the Chinese government's crackdown on pro-democracy activists in Tiananmen Square. As a matter of foreign policy, President Bush wanted to make very clear that the Chinese government should be condemned for this, and he provided temporary relief that was called deferral of enforced departure to Chinese nationals who were in the United States as of June 4, 1989. Approximately three years later, in 1992, Congress passed something called the Chinese Student Protection Act, which ultimately did give a path to legal status and permanent residence for those Chinese nationals. But, for three years, the only thing which allowed them to remain in the United States was this act of administrative grace that was put in place by George Bush to protect them.

 

      Similarly, if you look at the long history of Liberians in the United States—there are approximately 10,000 who were in the United States in 1991 when the first civil war began in Liberia. And they were granted a series of temporary statuses until finally, just this last year, Congress decided to grant probably about 3,000 who had not figured out a way to get a Green Card already -- became Green Card holders through -- the opportunity arose to become Green Card holders through an act of Congress.

 

      So we have a more-than-20-year period of time where people were granted the temporary relief from deportation and work permission because of foreign policy concerns. So these examples illustrate how immigration enforcement power is tied to the President's power to conduct foreign relations and to consider the effects that the full enforcement of U.S. immigration law might have on U.S. relationships with foreign powers. So, in the China example, President Bush granted refuge to Chinese nationals as a way of repudiating the CCP's crackdown on some people. And, in the Liberia example, they were modified by the United States' special relationship with Liberia given the role that we had in its founding and, of course, the economic impacts of allowing Liberians in the United States to send money back to their home country.

 

      So the bottom line was only three justices agreed with Thomas that the end of DACA could be predicated upon it being illegal. So it's not surprising that the basic structure of the program, DACA, was similar to powers exercised for many, many years by many, many presidents of both parties, going back to the 1950s.

 

      So that brings us to the separation of powers issue and the sort of administrative law concerns that flow from that. It's axiomatic that it's the province of the judiciary to say what the law is, and that's whether they're interpreting specific statutory language or the extent of executive authority or the lawfulness of an administrative action. So this case began when the attorney general issued a letter to the Department of Homeland Security saying that he believed that the program was unlawful—ignoring, for example, the Supreme Court's decision in Arizona v. United States, which recognized that the immigration agencies had broad discretion to initiate removal proceedings or to decline to do so, and to consider human concerns, individual equities, or policy choices that bear on this nation's foreign relations.

 

      So the Court is presented, in this case, with a dilemma. The attorney general issues a legal determination of DACA's invalidity, and DHS relies only on the fact of that illegality. In fact, two months after the litigation started, one of the courts offered the DHS the opportunity to reframe its reasons for revoking DACA as a policy matter, and they declined to do so. It wasn't only until after there were three injunctions in place that Secretary Nielsen winds up issuing the second justification for the rescission of DACA, which includes both the legal grounds and the policy grounds.

 

      So, here, I have great sympathy for the way Justice Kavanaugh resolves the tension. He comes out, and he doesn't entirely endorse the AG's assertion that the program is illegal, but he wouldn't credit Secretary Nielsen's later assertion of the policy reasons why this administration chooses to revoke the DACA program. So the justices would agree, DHS, having made a policy in a prior administration, can make a different forbearance policy for a new administration.

 

      But where I think Justice Roberts comes down on this is that there's part of a bigger pattern of kind of violence to administrative law principles. Time and time again, we've seen this administration trying to make large policy changes, especially in the area of immigration, with really slapdash justifications and circumventing good administrative practices.

 

      There's no better example than the travel ban, where -- remember, the Supreme Court's decision in Trump v. Hawaii was about the third version of the travel ban. People forget that, in 2017, the original version of the travel ban was so messily rolled out that, four days after it was issued, the Office of Legal Counsel had to issue an interpretation of its own proclamation because the language was so unclear that it wasn't -- the administration thought that it should apply to people who had already had Green Cards. So it also included -- it was full of unintended consequences, like including a bar on Iraqi nationals who received their immigrant visas because they were providing material assistance to the U.S. military. No one had thought of that. That wasn't until the second travel ban that those folks were excluded.

 

      So, faced with the unintended consequences and modified rationales for the proclamation, the Supreme Court, I think, took the opportunity to sort of criticize the administration's ready-fire-aim approach to immigration policymaking.

 

      The final thing I would just mention is I think there are federalism concerns. Immigration is a federal law. It displaces most state efforts to regulate immigration or immigrants, the Supreme Court emphasized in Arizona v. United States. States have a different interest in the DACA context. Texas and 27 other states challenged the expansion of DACA and the DACA program in federal court. But New York, California, and 20 other states challenged the travel ban. They challenged the rescission of DACA. Texas stressed the expenses that new immigrants bring to the United States, but California, Washington, New York, these other states, have emphasized the benefits that these foreign nationals bring. After all, the states have now spent lots and lots of money to educate these young folks. They are just now reaching the age where they're taxpaying citizens. Because of their work authorization, all of their earnings are on the books. These states are looking at substantial loss in revenue if the work authorization granted these students is taken away.

 

      So, again, the President has said that the administration will end the DACA program, that he wants to take care of the DACA folks. I think Congress is the right place for a permanent solution. But I think the Court was holding the administration's feet to the fire to say that, if they were going to end this program, they had to do it as a matter of policy, and they had to own that since approximately 70 or 73 percent of people in most polls support giving a path to legal status to these young folks. The President has to own, as a policy matter, that his administration prefers to take away the protection that they have until Congress gets around to acting on it.

 

      So, Chris Hajec, I know you have a slightly different take on all this, and why don't you go ahead?

 

Christopher Hajec:  Okay. Thank you, Bill. I would like to react, first, before I start, to something you just said—and it was originally said by Chief Justice Marshall—that it is the province of the Judiciary to say what the law is. It would be nice if it were that simple, but it's not. All of the Executive Branch officials take an oath to uphold the Constitution. So, to the extent that Secretary Duke or Nielsen thought that DACA was unconstitutional, they would be violating their oath, in their view, if they continued to enforce it. And there's precedent for this view. Thomas Jefferson thought that the Alien and Sedition Acts were unconstitutional, and he refused to enforce them. Obama thought that DOMA was unconstitutional and refused to enforce it. But, with that said, I'm not sure that disposes of the case either.

 

      What I want to talk about is this opinion and what it means. Aside from its result, which continues DACA, there is very little or nothing in this opinion to give any comfort to proponents and supporters of DACA. In fact, I think it's written in big letters in this opinion that DACA is doomed, and it's just a matter of time and method.

 

      It would be very easy, comparatively speaking, for the Trump administration to do it "right" this time and follow the Chief Justice's view of what's required for reasoned decision making and explain itself more fully. It doesn't have to base it only on policy. It can deal with, say, reliance interests in a number of ways, the Chief suggests. All of them would probably be okay. But they didn't do any of it, so that's why it wasn't good enough. And it could deal with the forbearance part by saying that DACA should have gone through notice and comment, but it didn't. So the whole thing is unlawful including the forbearance part—the deferred action part. That can be done and, apparently, Trump said this morning that that's what he's going to do. So that would be the end of DACA because I think that would be upheld.

 

      Now, I would caution the administration to put it through notice and comment because, now, in this case, it was hard for the plaintiffs to argue that the rescission had to get notice and comment because that would imply that DACA needed notice and comment—which it did—and they didn't want to make that argument. But, nevertheless, to be safe, I would put it through notice and comment.

 

      But if Trump doesn't rescind it, then Judge Hanen in Texas is going to enjoin it. That case is getting started again after this decision where DACA is being challenged by Texas and other states. And he's bound by his opinion in the DAPA case, which directly transfers to this because DAPA included expanded DACA. And then the Fifth Circuit would uphold that, and then it would go to the Supreme Court. The Court might not grant cert and just leave it at the Fifth Circuit. But it also -- if it did grant cert, I think it would affirm the Fifth Circuit because one of the votes affirming the DAPA decision of the Fifth Circuit was Chief Justice Roberts, and the other four conservatives seem to be there. So it does seem that DACA is doomed. I would say, though, that it has a charmed life and, so, I hesitate to make any absolute prediction.

 

      I would also add that, if you are an opponent—as my organization is—of big amnesties that will just encourage much more illegal immigration and compound the problem created by decades of lax enforcement, DACA is convenient. It prevents -- by its existence, it makes much less likely a congressional deal between Congress and the President to give a much larger amnesty to all so-called Dreamers—who number -- by the various definitions that are used in such deals, they are far more numerous than just the 700,000 DACA recipients. But, as long as DACA's there, there's no big impetus for Congress or the President to act and reach such a deal. So it seems like DACA's going to go, and it seems like Trump's going to rescind it. But if he does not, it's going to go down in the courts I would say.

 

      Okay. I think Professor Eastman has an even more critical view of this decision, and I'll pass it on to him.

 

Dr. John C. Eastman:  Okay. This is John Eastman, and I should make one correction to my introduction. My role -- the hat I wear as the Director of the Center for Constitutional Jurisprudence is under the auspices of the Claremont Institute, who have been gracious to allow me to do that litigation work before the Supreme Court in more than 20 years now, including in this case.

 

      So, with that off the table, I think Chief Justice Roberts' majority opinion here is nothing shy of pure sophistry. Those are strong words, but I think they are warranted here.

 

      Let me first take issue with the legality of DACA. There are several components here that need to be considered. The first is the deferred action itself. We're not going to prosecute or put into civil deportation proceedings people who meet certain criteria. Now, the memo that Janet Napolitano wrote creating the DACA program goes out of its way to try and claim that that is being done in the exercise of prosecutorial discretion on a case-by-case basis because the legal precedent requires the exercise of prosecutorial discretion to be on a case-by-case basis. A wholesale, categorical suspension of the law for a large category of citizens is a legislative act, not an executive act or prosecutorial discretion.

 

      And, while the Supreme Court has never struck down such an act, it has strongly hinted that there is a line there that cannot be crossed from prosecutorial discretion to wholesale suspension of the law—the prior being valid exercise of executive power, the latter being invalid or unconstitutional. I think DACA's deferred action component pushes the limit or crosses that line itself. But, even if the Court was unwilling to take that step—how much prosecutorial discretion, how big a class, how great the exercise of prosecutorial discretion, for how many people—that might well be a non-justiciable, political issue that the Court wouldn't ultimately resolve. And I think that's why that has been on hold for so long.

 

      But, even if you assume they're not going to hold that aspect of it unconstitutional, there are two other pieces of this. You cannot, through the exercise of prosecutorial discretion not to take action, confer some lawful status on somebody. That's not an exercise of prosecutorial discretion; that's changing the law. And, yet, DACA purports to create a lawful presence. It goes out of its way to say, "We're creating a lawful presence, not a lawful status." That's just pure hypocrisy, right?

 

      And, then—beyond that—having created this illegal lawful presence, they then afford benefits to people who are now deemed by the administration to be lawfully present that are directly contrary to the exercise of authority conveyed by Congress and, in fact, as we noted in our brief, a direct violation of prohibition in Article I, Section 9, of drawing funds from the treasury without the authority of Congress. We have social security benefits. We have work authorizations. We have Medicare benefits. We have retroactive refunds on earned income tax credit that were all done because of Janet Napolitano's unilateral decision to confer lawful presence on this entire class of citizens and then provide benefits that were not only not authorized by Congress, but directly contrary to the prohibitions in the actual statutes. So I think there's easily an argument to be made that DACA itself was unconstitutional, certainly beyond statutory authority.

 

      Now, the second piece of this and why I think Justice Roberts' opinion is pure sophistry. He says we have to look at the two components—the conferral of benefits and the decision not to prosecute—separately. Because, if we look at it just as a decision not to prosecute, that may well be nonreviewable under the Administrative Procedure Act, as decisions of prosecutorial discretion are. But Chief Justice Roberts then tells us, but this did more than that, it conveyed a status—lawful presence—and it conferred benefits. And those two judgments needed to go through the Administrative Procedures Act. Because Trump's decision did not comport with the requirements, fully, of the Administrative Procedures Act, according to Roberts, then the rescission of that is a violation of the Administrative Procedures Act.

 

      He makes no mention whatsoever that Napolitano's memo that created that program in the first place likewise did not go through the Administrative Procedures Act. And if it's illegal on those grounds to rescind it, it must have been illegal to put it in place in the first place. And this is the key point that Justice Thomas makes in dissent. The notion that they had to perpetuate an illegal program -- unless they themselves go through hoops of the Administrative Procedures Act that the program's implementation itself did not go through is laughable.

 

      And then we get back around to the final decision of Chief Justice Roberts that the DHS secretary only looked at the benefits piece of this. This is the part that was illegal. It didn't address the rescission of the deferred action itself. But once we disaggregated those two things, how does the deferred action itself even require Administrative Procedures Act processes when it's an exercise of prosecutorial discretion? At bottom, what this case is is a continuing effort to thwart this administration from implementing one of the key policy agendas that was the centerpiece of his campaign in 2016. And here we are, now, four years into this administration and still not able to implement that policy.

 

      And one last piece on this, and I will raise this as a question. It's curious to me that this case was argued all the way back in November, seven months ago. There's nothing in any of these opinions that warranted seven months to get out the door. And I sure want to raise the question why it took so long to put it all the way till June when it may be too late for the administration now to go through the hoops that Roberts has, I think erroneously, set up for it in order to get it done before the end of the present administration. That, to me, is a travesty. It undermines the effect of the last election. And I think it is an imposition of the judiciary on this administration in a way that it would not impose on any other administration in history. And I've got a lot more to say about it as you might imagine. But I'll pass it on, now, to our next guest.

 

Mario Loyola:  Thank you, John. This is Mario Loyola, everyone. Thank you, Dean, for having us all on this Teleforum.

 

      I'm just going to talk, very briefly, to raise a couple of sort of bottom-line problems that I see arising from this decision, which arise really from its reasoning and the very circular argument Roberts appears to be making here. And it's weirdly circular for him because, agree or disagree with Justice Roberts, his opinions are usually pretty clear. And even if he does sometimes creatively misdescribe precedence in order to fill in the reasoning for his own opinion, this is an opinion in which there were several points—maybe it's just me—but there were several points where I was just left scratching my head wondering what on Earth the Chief Justice was talking about.

 

      And it's really -- just contemplate the circularity of this argument. Justice Roberts: "The Court here has ruled that those parts of DACA that were not illegal for failing to observe APA procedures cannot be rescinded unless the rescission follows APA procedures." I mean, that just cannot possibly be correct. So what they're setting up is a different standard for—a completely different standard—for what a rescission would have to have to under state [inaudible 00:27:50] than the original regulatory action, which apparently has not held, in this case, to any procedure at all.

 

      So, in holding that the rescission is reviewable, Roberts recognized that the deferred prosecution is not merely a refusal to institute proceedings. I think Professor Eastman remarked on this as well. So Roberts admits that it's not merely a case of prosecutorial discretion because even the forbearance part of this, the deferred action, creates a series of processes and reliance interests that are adjudicative and constitute benefits.

 

      So that would seem to expand the holding in Texas v. United States, which said the parts of DAPA -- DAPA is likely going to be vacated because there are parts of DAPA that create benefits that are not merely an exercise of unreviewable agency action. Roberts here, in order to justify his own reviewability of the rescission, is saying that all of DACA and DAPA basically creates obstinate benefits. So he goes on to say that the Court doesn't like post hoc rationalizations, but we are requiring it here. But the explanation has to be careful not to explain too much, and God forbid that the explanation should include reasons in addition to those originally found to be insufficient.

 

      So people say -- one takeaway that I'm hearing a lot is that this decision portends that DACA is doomed because it lays out a roadmap for its rescission. I'm not so confident that that's the case because the road map that Roberts has laid out here is very confusing, and it's not really at all clear where it leads.

 

      So the Court says that the government can either rest -- in saying what Nielsen should have done, the Court says the government can either rest on the original reasons for the rescission or it can issue a new rescission on the basis of new reasons. But if it rests on the original rescission, it can only elaborate on the reasons for the original decision if those reasons are found wanting, but it can't use additional new reasons. And it almost seemed as if Roberts was rejecting the rescission on the grounds -- the Nielsen memo on the grounds that it had additional justifications in addition to the ones mentioned in an explanation that was found insufficient. I mean, it's just so circular. It's hard to wrap your head around it.

 

      So the circularity here of the Court's reasoning means that the rule, the takeaway that lawyers will draw from this case, is very indeterminate. I mean, it's very hard to predict what a court would do in a future case using this decision, this opinion, as precedent. And especially because Roberts is saying here that, when you withdraw an agency action because of its illegality, you have to consider various components of the program separately. But this is not a rule; it's just a permission for future courts to justify a rescission of a policy that they don't like because you will always be able to think of a policy element that the agency didn't consider separately at some level. So there's a couple -- and I'm highlighting a couple of, even, sort of qualifying takeaways, bigger takeaways.

 

      First, there's a difference between prosecutorial discretion in the current case in respect to an action that has already occurred and prosecutorial discretion as applied to future cases, respectively, before they've even occurred. And there's a further difference between an agency or an administration concluding that an entire program is illegal and that it therefore is not going to enforce it. That's problematic enough. But what the Obama administration did in this situation was to say, "We're going to pick and choose who -- we're going to refuse to apply this category of law to an entire category of people, but we're going to apply it in other cases." So this elevation of prosecutorial discretion is almost kind of a royal prerogative of suspension. It's a legislative power. If the practice is followed, it's going to allow future administrations to basically rewrite the law.

 

      So the even bigger problem than that is the problem raised by a separation of -- is a separation of powers problem here and that you see. This is another example of agents -- of courts always, always, always getting deference wrong. Chevron is based on the idea that courts should defer to agency interpretations of law, which is the courts' area of competency. All of these other deference doctrines counsel that the courts should not defer to agencies in the agencies' core competency, which is determinations of fact and implementation -- development and implementation of policy. So this is a bad decision for separation of powers, and it's a bad decision in terms of legal reasoning, and I am not surprised that Professor Eastman [inaudible 00:33:14] I think I've ever heard. Thank you, Dean.

 

Dean Reuter:  Thank you, all. Let's go right to the floor for questions or at least open the queue for questions. It looks like we start off with three questions. Let's move, now, to our first caller. This is area code 203. Go right ahead, caller.

 

Caller 1:  Yes. Good afternoon to everybody. Thank you very much for a very interesting topic.

 

      My question is a simple one, I think, and I didn't hear it come up during the conversation. But I wanted to ask you is it not the case that the Supreme Court, through this decision, has essentially negated the 2016 presidential election by subverting the President's intent and remarks and plans in 2016? And, so, don't we have an argument that there's a separation of powers issue here? And, if there is, who enforces that? Thank you.

 

Dr. John C. Eastman:  Yes, I agree, and I mentioned that in my opening remarks. And I think -- years from now, when we see the notes and papers and memos distributed inside the Court, I think we're going to find that this case was held for seven months inexplicably to kind of kick the can down the road until, like the census decision, it was too late for the Trump administration to react.

 

      Now, I don't think that's true. There are emergency exceptions for expedited processing through the Administrative Procedures Act—a statutory authority that was used by Obama's Department of Health and Human Services to implement various aspects of Obamacare—and I would encourage the present administration to use that as well because what we have now is funds being distributed in violation of Article I, Section 9, of the Constitution. And, under this decision, that is going to keep happening. That's not supposed to ever happen. So I think there's more than ample ground for capping that expedited review authority.

 

      Second, I do think that this is undermined. The combination of the culmination here by the Supreme Court, the remand rather than resolution, the initial judicial decision issuing nationwide injunctions, all against what would be clearly upheld in any other administration, an attempt to alter a prosecutorial discretion policy and to unravel the policy judgment of the prior administration particularly. This is not an issue that was collateral to the 2016 election. This was one of the key central fights over that 2016 election. And what this decision has now done is tell the American people, "Your vote choosing an administration that will implement a policy that they campaigned on -- those votes didn't matter. The election didn't matter. We're going to stop that policy change from having any effect whatsoever." And, by the way -- yeah, go ahead. I'll stop there.

 

Christopher Hajec:  Okay. Yeah, I would just add—this is Chris Hajec—that you asked who enforces this? Well, in the final analysis, the people can enforce it through votes for president or Congress. Congress can also impeach and remove a Supreme Court justice. The people can amend the Constitution. There are various recourses in theory. But, in practice, there are three branches of government. They are independent from one another. And none is the judge of the others, even though the Supreme Court likes to arrogate to itself that role.

 

Dean Reuter:  What if we could hear from—this is Dean—one of the other speakers. It can't be, John, that if a nominee makes something central to his platform and is elected, he gets carte blanche on an issue and doesn't suffer a judicial review. And I understand your point about timing and the centrality of the immigration issue to the election. But what are the limits? Are there objective limits here? Go ahead.

 

William A. Stock:  Dean, if I was [CROSSTALK]. What I would say is that, if you're a person who believes in the program that the President was elected to enforce, I would be furious at the level of incompetence and disregard for administrative procedure that this administration has shown over and over and over again.

 

      What the Court's decision shows—and I credit the article from David French to really sort of crystalizing this—is the Court [inaudible 00:37:53] this case, over and over and over, with badly justified policy, enacted quickly without considering all of the interests and without going through correct internal kinds of reviews.

 

      So I agree that, if you're a supporter of the President's restrictions on immigration, you should be appalled at the way the President decided to do this because, remember, this—again—all comes down to the fact that the President relied on a legal justification that the policy was illegal. He wants you to tie the hands of future presidents by getting a decision that this program was illegally conceived in the first place, which would severely restrict the ability of this president or a future president to react, for example, to a Chinese takeover of Hong Kong by giving refuge to Hong Kong nationals who happened to be in the United States at that moment. If it's illegal for the President to be able to [inaudible 00:38:57] like DAPA on a broad basis, there are real constitutional concerns about the scope of presidential power. So that's how I react to that.

 

Dean Reuter:  Well, Bill, let me ask you --

 

[CROSSTALK]

 

Dr. John C. Eastman:  I really have to push back again. I have to push back against the notion that this administration has been negligent in pushing the policy forward. Let's start with the travel ban. The travel ban policy was carefully constructed. It had some of the top lawyers in the country at Jones Day working on it through the transition. What created the controversy and the ambiguity was not the administration policy but Sally Yates' overly broad interpretation of it deliberately to throw this thing into disarray. The holdover from the Obama administration said this applies to Green Cards as well, when the statutory language that was deliberately used and employed in that initial order did nothing of the kind. And the same thing is true here.

 

      The notion that I have to go through the Administrative Procedures Act processes in order to repeal an illegal policy from a prior administration that did not go through the Administrative Procedures Act processes is not a lack of due attention to the requirements of the rule. It's patently clear that, when Obama implemented this without going through APA -- how can it possibly be the case that we need to go through APA in order to repeal it or to change course? I mean, that's the essence of it. And the notion that that is somehow derelict in the duties of the Department of Justice or the White House Counsel's Office or the Office of Legal Counsel—by the way, Janet Napolitano's initial memo had no legal analysis whatsoever. Only when we get the DAPA memo do we try to get a backfill to try and rationalize the legality of what she did in the first place. And you can look at that OLC memo and just see how they are straining to try and rationalize something that was just completely indefensible.

 

Mario Loyola:  I would disagree with it being indefensible. I think it has no legal -- I think that there was no legal analysis because everyone [inaudible 00:41:06], going back to President Eisenhower in 1956, [inaudible 00:41:10] discretion on behalf of Hungarian freedom fighters, that the President had this authority. So I think the Court is really trying to make the administration own its policy choice and not say, "Oh, our hands are tied. We have to get rid of DACA because it's illegal." The Court says, "No, you've got to own the policy. To just take a legal justification [inaudible 00:41:35] arbitrary."

 

Dr. John C. Eastman:  DACA was a wholesale suspension of the law. There is no prior precedent, from Eisenhower through Bush or Clinton or Bush 43, that was wholesale. Those were exercises of executive foreign policy powers, not a wholesale alteration of the law domestically. And in several of [CROSSTALK] including Bush—I didn't interrupt you—including Bush 41, there was statutory authority for that specific action that was repealed in the 1996 Immigration Act.

 

Mario Loyola:  Yeah, the other --

 

[CROSSTALK]

 

Mario Loyola:  Another thing I would jump in to say in response—I'm sorry—is that the reason why the Trump administration has gotten itself into trouble in the courts is precisely because of the formality with which it has developed these executive orders. If it was going to do things the Obama administration's way, it would have just done things through these informal memos that you struggle, even, to figure out how to cite properly, such as the DACA and DAPA memos, because you can always have -- as Obama demonstrated, you can always have a ceremony and appropriate those actions that are totally internal to the agency just in order to reduce their target area. So I think that this administration has been much more formal than the Obama administration was, which really [inaudible 00:42:56] informal ways of skirting the Administrative Procedures Act.

 

Dean Reuter:  This is Dean. Let me just ask one quick clarifying question. Could the Obama administration have changed this policy through the same means it implemented it? If President Obama decided there was some need for a change in policy, could he have rescinded the policy through the same means he implemented it?

 

Mario Loyola:  Well, according to this decision, no, right? Because Roberts is clearly requiring a greater level of process and procedure for the rescission of a policy than he's requiring on the [inaudible 00:43:28] of the policy itself. And it's very weird [CROSSTALK]. What's really troubling about this decision—I'm sorry—part of what's really troubling about this decision and has been troubling me about the Administrative Procedures Act for a very long time is that the zone of policy discretion of the administration keeps getting whittled down further and further and further to the point where nothing is really left to agency discretion and policy terms, and the Court's decision is just another in a long line of examples where the courts are second guessing the administration's judgment on policy on pure policy grounds with only the most confusing legal reasoning.

 

Dean Reuter:  Let's try and get another caller. --

 

William A. Stock:  I mean, look --

 

Dean Reuter:  Bill. And let me get this question on the table and then I'll give you a chance to respond. Go ahead, caller from 714.

 

Caller 2:  Yes. DACA proponents often point to prosecutorial discretion as their strongest point upholding the policy, whether it's because of Heckler v. Chaney or Article II powers. But Roberts' opinion clearly says the program is not just about enforcement. So I'm curious what else do you think proponents will rest on when this case ultimately goes into further litigation?

 

[CROSSTALK]

William A. Stock:  Well, I’ll give the first shot --

 

Dr. John C. Eastman:  This is John. I'll -- go ahead Bill.

 

William A. Stock:  Well, so I think there's a misunderstanding in between -- as an immigration lawyer, I deal all the time with the fact that there are people who have a status which provides their lawful presence in the United States, and then there are other people who have no status but who have a lawful permission to be in the United States just because of the circumstances they're found in. So it is the -- so I don't know that I agree with Roberts' sort of way that they bifurcate that.

 

      I think it's much clearer to say that it is the act of formally recognizing the prosecutorial discretion which then has various consequences under other statutes that Congress already enacted. Those happen to provide work authorization, limits on eligibility for social security benefits, effects under the tax code—those are all because of Congress having provided those benefits under those other statutes when that's just a knock-on effect. So, look, I agree with the other panelists that DACA can be rescinded by this administration and that Roberts provides a very clear path as to how that should be done. And, from what we've seen, this administration's going to try to go ahead and do that.

 

Dr. John C. Eastman:  Yeah. This is John. I think the new challenge, given the pathway that Roberts has set out—assuming Roberts sticks with it when the case comes back to him, and I think that's an open question—the new round of challenge will be focused on the reliance interests.

 

      And I think that's another troubling aspect of Roberts' opinion here because the DACA memo by Napolitano itself specifically says there's no reliance. You can't rely on this. You have no status. This is not altering any -- giving you any legal right to any benefits. It can be revoked at any time. And every single application that was filed had on the bottom of the page, in big, bright letters, "There is no benefits that can -- no reliance, no entitlement to anything provided here. It can be revoked at any time." So the notion that there might be some reliance interests, when it's so explicit upfront that there can be no reliance interests, is a little bizarre. And yet there's a kernel there in Roberts' opinion that would suggest that that needs to be considered more adequately, and maybe it would lose and maybe it would win. I just find that difficult to reconcile with the original DACA memo.

 

Dean Reuter:  Anybody else on this point before we go to the next caller? All right. Heading to area code 646. Go right ahead, caller.

 

Caller 3:  Thank you. I think I agree with John's and Mario's analysis. The question I have, really, is sort of the bizarre administrative law application here of the Chenery doctrine and of arbitrary and capricious review. Do you think that is going to have any weight with lower courts, courts of appeals, in the future? Or do you think they're just going to disregard this case as sort of a one-off that shouldn't sort of carry much weight because it's so strange and so out of step with traditional administrative law?

 

Dean Reuter:  Who wants to take a shot at that?

 

Christopher Hajec:  I think the Chief Justice is pioneering his approach to arbitrary and capricious review, and he started in the census case. He seems to have an ethic of process and even an ethic of appearances that the ground of the census case for overturning Secretary Ross' decision to include a citizenship question on the census was not that it wasn't it a good reason that he gave, but that it seemed contrived—and that it seemed contrived, not that it was contrived.

 

      And I think Justice Roberts would hold to that—say what you will about it—that what's important here is the appearance, is making it look good, making it look like you've considered all the factors dispassionately, when really what's going on—and this should be allowed to go on—is that the President told you to do this particular thing.

 

      Nobody believes that Secretary Napolitano just decided to issue the DACA memo; it's quite clear that Obama order her to do that. And same here—Trump told his DHS secretaries to rescind it. And that's good. That puts the people in charge of regulatory policy because the President's elected, and these officials under him are not. And I think there's indication in case law that Roberts is concerned about presidential control over his subordinates for that reason—because it's democratic. So at least Roberts didn't go so far as to demand some kind of neutral, dispassionate decision making in reality. What he's really demanding is that you have to talk about what you have to talk about, and you have to make it look convincing.

 

Mario Loyola:  It's such a very weird rule, and I have to say that it's not at all clear how the Court -- how you would be able to predict what the Court would do with that in any given case.

 

      I mean, if you think about what the Court is saying, the way in which the Nielsen memorandum is insufficient is that it is adding explanations to the original rescission memo but without elaborating sufficiently on the reasons in the original rescission memo. So the original rescission memo is found substantively insufficient for reasons that the agency cannot correct by adding substance to the memo. What's it supposed to do—add footnotes to the original explanation? It's not at all clear what would meet the standard of the Court's -- what would meet the Court's standard for a full, reasoned, compelling explanation. It's not at all clear.

 

      So that's why I think that the indeterminacy established by this precedent is going to be a major problem moving forward which exacerbates, but the way, the problem of political control because it just opens up further the capacity for courts to second guess the policy judgments of elected branches, which is really what that --

 

Christopher Hajec:  That is always a problem. I don't know if -- I'd have to look at it again to see how much indeterminacy there is in my view. But the way I read it was that they can either issue a new rule and give any kind of reasons they want, including the original reasons plus other reasons, or they could just reaffirm the old rule, in which case they have to stick with the original reasons and they can't add to them. And he had policy grounds or whatever for saying that. I didn't find it unclear, but I would have to look at it again.

 

Dr. John C. Eastman:  Yeah. This just points out another oddity of the opinion. The original reasons were that DAPA was illegal because it didn't go through APA. That was affirmed by an equally divided court, the Supreme Court. And Attorney General Sessions issued a directive that, under that reasoning—which was governing now—DACA is illegal for the same reasons. And that was the reason proffered by the secretary of the Department of Homeland Security.

 

      The Court's decision reasoning that the rescission was illegal for the same reason necessarily agrees that DACA was illegal for that reason. Which means it necessarily affirms the reasoning of the original decision to revoke. So you can get twisted in pretzel knots all over this. The fact of the matter is Roberts was substituting his judgment for rescission for that which was perfectly valid by this administration.

 

Christopher Hajec:  Yeah. I mean, it is a feature of this opinion that the majority doesn't care whether DACA is unlawful. They [CROSSTALK]. And it wasn't -- it's not -- courts don't normally do that. If they invalidate a rule, they normally go back to the rule before it unless it too is invalid, then they go further back. And if they'd done that here, they would have concluded that the plaintiffs lacked standing because they couldn't win because the Court—as Justice Thomas says they should do—would refuse to give effect to an unlawful program. But that didn't matter to the majority.

 

[CROSSTALK]

 

William A. Stock:  I think you have to entertain the possibility that there are six justices of this Court who were not willing to say that the DACA program, as originally conceived, was illegal, right? The majority --

 

Dr. John C. Eastman:  -- But, however…

 

Christopher Hajec:  -- No. I don't think that's true.

 

William A. Stock:  The majority opinion and Justice Kavanaugh—and Justice Kavanaugh. Justice Kavanaugh does not say that he thinks the DACA program is illegal. He says [CROSSTALK] I would have expected that the Nielsen memo is good enough.

 

Christopher Hajec:  [CROSSTALK] Oh, sure. Yeah, you have to entertain the possibility. Yes, you're right.

 

Mario Loyola:  Here's a key point, though. If everything—going back to what John Eastman said—if everything that Roberts says in this opinion is true, then the one thing that follows inescapably is that DACA and DAPA are illegal and have to be vacated.

 

Dean Reuter:  Let's see if we can get one more question in.

 

Christopher Hajec:  That's wrong. I disagree. I disagree entirely. Nothing in the majority opinion takes the position that DACA was illegal and, in fact, the entire issue for the remand is that the sole justification for Duke's rescission of DACA is that it was illegal. Now, if that would have been sufficient for the majority, they would not have remanded. Because they remanded, it was clearly not --

 

William A. Stock:  -- Oh, I don't agree.

 

Christopher Hajec:  -- sufficient to say it was illegal.

 

William A. Stock:  I don't agree.

 

Dr. John C. Eastman:  Yeah, I disagree with that because the basis of the decision is that the rescission didn't meet the requirements of the Administrative Procedures Act. DACA itself didn't go through the Administrative Procedures Act. So to hold that the rescission was illegal necessarily means that DACA was illegal, and therefore her rationale for rescinding DACA was perfectly valid under the Administrative Procedures Act. You can't get out of that. And the fact that Roberts ducks it doesn't make it go away.

 

Mario Loyola:  Go back to what Roberts describes in the Fifth Circuit decision in Texas v. United States. He's talking -- he affirms, right? He's talking about -- that decision said DAPA may be vacated because it creates substantive rights that are a legislative exercise, and it's not merely prosecutorial discretion. But in his opinion -- so Roberts says yes, that's correct. But, in addition, the prosecutorial discretion is reviewable because it is not merely an executive action because it creates a bunch of substantive rights. So, if that's true, he's expanded the whole thing in Texas v. United States to encompass all of DACA and DAPA.

 

Dean Reuter:  Let me ask the four speakers to -- if you object to one final question from the audience. Speak now if you object. Otherwise, we'll get one more question in. All right. Let's take a final question if we can. Try to be as brief as possible please.

 

Matt Muggeridge:  Hi. My name is Matt Muggeridge. I'm an immigration attorney in Virginia. How could this decision force Congress to act? It seems to me that the villain of the peace in immigration law is Congress—that they can never get focused or get on the same page or make any deals. And they can never enact good, helpful, bipartisan legislation, so we end up with these policies that bounce back and forth. And DACA is the supreme example of a sort of quasi law that's been in place for so long that now I do think that there are reliance interests that have been created by Congress' unwillingness to act. So, if you have something like temporary protected status—which goes through Congress and then the agency acts and everyone sort of goes along with it and it stays in place forever and nobody cares—could this decision finally force Congress into some sort of action now that it's been kind of taken out of the hands of executive decision?

 

Dean Reuter:  That's a good question. And as you answer this, let me ask each of you to express any final thoughts you have. And let's go in the order we opened, if we could, and then we'll wrap this up. Bill Stock, your thoughts on that or any final thoughts?

 

William A. Stock:  Yeah, I would agree that the most important place to leave this is with Congress and that Democrats have been reluctant to compromise narrowly on the DACA and would like a broader relief. But, ultimately, we saw before the injunctions were put in place that discussions were ongoing about legislative relief. Ultimately, any kind of long-term permission to stay in the United States, any type of path to citizenship must be given by Congress, and I would support the caller's emphasis that this hopefully will force Congress' hand.

 

Christopher Hajec:  Yes, I would say that this decision doesn't force anything. It makes it less likely because it leaves DACA in place at least for the time being. And even its eventual rescission would not force Congress to act. They've rejected Dream acts twice, I think, and the reason for that is it's very unpopular. And my final thoughts would be that DACA is more important, in my view, even more important as a constitutional law issue than an immigration issue, and it is very unconstitutional. And, for that reason, it should be overturned.

 

Dr. John C. Eastman:  Yeah, I'm even more cynical than that on Congress' ability. Look, I think it's not just because DACA amnesty is unpopular. I think, if you looked at the range of amnesty possibilities, the Dreamers are among the most popular group to get that through. I think there's something much more nefarious going on why we don't get it through Congress. One side thinks that keeping this alive as a political issue to hammer their opponents with is more valuable than actually getting the thing accomplished. Otherwise, Trump's invitation to legislate a DACA program would have been accepted. And I don't see that lack of good faith in legislating about this issue going away any time soon. And what that means is you had a prior administration that, by fiat, put this program in place, and now the Court's complicit in keeping it in place even though the election largely turned on repealing that and other similar policies. So I think this is a serious threat not just to our immigration policy, but to our structure of government and who decides basic policy questions in our country, and we seem to be losing that.

 

Dean Reuter:  Mario Loyola, you get the final thought here.

 

Mario Loyola:  Yeah. And I'll just reiterate that this is a really -- this decision manages to get almost every separation of powers interest wrong. It leaves in place a situation in which the President's ability to legislate is expanded. The President's ability to impose policy judgments is diminished. And it expands the Court's ability to substitute both legislative and policy judgments for those of the political branches. So it's just a real mess and a really unfortunate mess.

 

Dean Reuter:  Well, we're going to have to leave it right there. I appreciate you hanging in for a few extra minutes.

 

      Thanks to all four of our guests today for a fascinating discussion. I want to thank the audience, as well, for dialing in and for your thoughtful questions. This is an issue I'm sure we'll return to in the future. A reminder to our audience to check your emails. Check our website for upcoming teleforum conference calls. But until that next call, we are adjourned. Thank you very much, everyone.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society's practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.