## Facts

- In 2012, the Department of Homeland Security (DHS) created Deferred Action for Childhood Arrivals (DACA) by memorandum, allowing certain noncitizens who came to the United States as children to seek renewable periods of deferred action (forbearance from removal) and related eligibility for work authorization and certain federal benefits.
- Roughly 700,000 people received DACA, and many made education, employment, and family decisions in reliance on its continuation.
- In 2014, DHS announced Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expansion of DACA; those initiatives were enjoined in *Texas v. United States*, and DHS later rescinded DAPA.
- On September 5, 2017, Acting Secretary Elaine C. Duke issued a memorandum rescinding DACA, relying on a letter from the Attorney General stating that DACA was unlawful in light of the *Texas* litigation and should be ended.
- The Duke memorandum directed DHS to reject new DACA applications and to wind down the program by allowing existing grants to expire on their normal timelines, with limited renewal opportunities during the wind-down.
- The Duke memorandum did not address whether DHS could keep DACA’s forbearance feature while ending or limiting the benefits and work-authorization features, and it did not meaningfully address the reliance interests of DACA recipients and others.
- States, universities, organizations, and individual DACA recipients filed multiple suits in several federal courts, arguing that the rescission violated the Administrative Procedure Act (APA) and the Constitution.
- District courts granted preliminary injunctive relief requiring DHS to continue accepting DACA renewal applications during litigation; the Ninth Circuit affirmed similar relief in the University of California litigation.
- After suits were filed, Secretary Kirstjen M. Nielsen issued a later memorandum providing additional policy reasons supporting rescission.
- The Supreme Court granted certiorari, consolidated cases, and reviewed the legality of the 2017 rescission.

## Issues

1. Whether DHS’s rescission of DACA was judicially reviewable under the APA, or instead was “committed to agency discretion by law” under 5 U.S.C. § 701(a)(2).
2. If reviewable, whether the 2017 rescission explained in the Duke memorandum was arbitrary and capricious under 5 U.S.C. § 706(2)(A), including whether DHS had to consider reasonable alternatives and reliance interests.
3. Whether DHS could defend the rescission by relying on the later Nielsen memorandum.
4. Whether the rescission violated the equal-protection component of the Fifth Amendment.

## Decision

- The Court held that the rescission was reviewable under the APA and was not insulated as an unreviewable exercise of enforcement discretion.
- The Court held that the 2017 rescission, as explained in the Duke memorandum, was arbitrary and capricious because DHS failed to consider important aspects of the decision.
- DHS treated DACA as an all-or-nothing program and did not adequately consider whether to keep deferred action (forbearance) while changing or ending the benefits and work-authorization features.
- DHS did not adequately address the serious reliance interests of DACA recipients and others and did not show how those interests were weighed against competing considerations.
- The Court declined to uphold the rescission based on the Nielsen memorandum, reasoning that the agency’s action must stand or fall on the reasons given at the time; the later memorandum functioned as a new justification rather than a mere explanation of the original decision.
- A plurality rejected the equal protection challenge on the record presented; Justice Sotomayor would have allowed that claim to proceed.
- The Court vacated in part and reversed in part the judgments below and remanded for further proceedings consistent with its opinion.

## Legal Principles

- Agency action is presumptively subject to judicial review under the APA; § 701(a)(2) is a narrow exception.
- Even when an agency action relates to enforcement choices, review is generally available where the agency rests its decision on a claimed legal constraint or a view about the scope of its authority.
- Under arbitrary-and-capricious review, an agency must consider the relevant factors, address significant aspects of the problem, and give a reasoned explanation for a change in policy.
- When a policy has generated substantial reliance, the agency must assess whether reliance exists, evaluate its significance, and account for it in the agency’s reasoning.
- Courts generally evaluate agency action based on the explanation the agency gave when it acted; later litigation-stage rationales or after-the-fact explanations cannot supply missing reasoning for the original action.
- The Court’s judgment did not decide whether DACA itself was lawful or whether DHS lacked power to end it; it required that any rescission be justified through APA-compliant reasoning.

## Conclusion

In *Department of Homeland Security v. Regents of the University of California*, the Supreme Court held that DHS’s 2017 decision to end DACA was subject to APA review and had to be set aside as arbitrary and capricious because DHS failed to separately consider DACA’s forbearance component and failed to account for substantial reliance interests, and the government could not cure those deficiencies by pointing to a later memorandum offering new reasons for the rescission.


Department of Homeland Security v. Regents of the University of California, 591 U.S. 1 (2020)