Department of Homeland Security v. Regents of Univ. of Cal.

(Slip Opinion) OCTOBER TERM, 2019 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

DEPARTMENT OF HOMELAND SECURITY ET AL. v.

REGENTS OF THE UNIVERSITY OF

CALIFORNIA ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 18–587. Argued November 12, 2019—Decided June 18, 2020*

In 2012, the Department of Homeland Security (DHS) issued a memo-

randum announcing an immigration relief program known as Deferred

Action for Childhood Arrivals (DACA), which allows certain unauthor-

ized aliens who arrived in the United States as children to apply for a

two-year forbearance of removal. Those granted such relief become

eligible for work authorization and various federal benefits. Some

700,000 aliens have availed themselves of this opportunity.

Two years later, DHS expanded DACA eligibility and created a re-

lated program known as Deferred Action for Parents of Americans and

Lawful Permanent Residents (DAPA). If implemented, that program

would have made 4.3 million parents of U. S. citizens or lawful perma-

nent residents eligible for the same forbearance from removal, work

eligibility, and other benefits as DACA recipients. Texas, joined by 25

other States, secured a nationwide preliminary injunction barring im-

plementation of both the DACA expansion and DAPA. The Fifth Cir-

cuit upheld the injunction, concluding that the program violated the

Immigration and Nationality Act (INA), which carefully defines eligi-

bility for benefits. This Court affirmed by an equally divided vote, and

——————

* Together with No. 18–588, Trump, President of the United States, et

al. v. National Association for the Advancement of Colored People et al.,

on certiorari before judgment to the United States Court of Appeals for

the District of Columbia Circuit, and No. 18–589, Wolf, Acting Secretary

of Homeland Security, et al. v. Batalla Vidal et al., on certiorari before

judgment to the United States Court of Appeals for the Second Circuit.

2 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Syllabus

the litigation then continued in the District Court.

In June 2017, following a change in Presidential administrations,

DHS rescinded the DAPA Memorandum, citing, among other reasons,

the ongoing suit by Texas and new policy priorities. That September,

the Attorney General advised Acting Secretary of Homeland Security

Elaine C. Duke that DACA shared DAPA’s legal flaws and should also

be rescinded. The next day, Duke acted on that advice. Taking into

consideration the Fifth Circuit and Supreme Court rulings and the At-

torney General’s letter, Duke decided to terminate the program. She

explained that DHS would no longer accept new applications, but that

existing DACA recipients whose benefits were set to expire within six

months could apply for a two-year renewal. For all other DACA recip-

ients, previously issued grants of relief would expire on their own

terms, with no prospect for renewal.

Several groups of plaintiffs challenged Duke’s decision to rescind

DACA, claiming that it was arbitrary and capricious in violation of the

Administrative Procedure Act (APA) and infringed the equal protec-

tion guarantee of the Fifth Amendment’s Due Process Clause. District

Courts in California (Regents, No. 18–587), New York (Batalla Vidal,

No. 18–589), and the District of Columbia (NAACP, No. 18–588) all

ruled for the plaintiffs. Each court rejected the Government’s argu-

ments that the claims were unreviewable under the APA and that the

INA deprived the courts of jurisdiction. In Regents and Batalla Vidal,

the District Courts further held that the equal protection claims were

adequately alleged, and they entered coextensive nationwide prelimi-

nary injunctions based on the conclusion that the plaintiffs were likely

to succeed on their APA claims. The District Court in NAACP took a

different approach. It deferred ruling on the equal protection chal-

lenge but granted partial summary judgment to the plaintiffs on their

APA claim, finding that the rescission was inadequately explained.

The court then stayed its order for 90 days to permit DHS to reissue a

memorandum rescinding DACA, this time with a fuller explanation of

the conclusion that DACA was unlawful. Two months later, Duke’s

successor, Secretary Kirstjen M. Nielsen, responded to the court’s or-

der. She declined to disturb or replace Duke’s rescission decision and

instead explained why she thought her predecessor’s decision was

sound. In addition to reiterating the illegality conclusion, she offered

several new justifications for the rescission. The Government moved

for the District Court to reconsider in light of this additional explana-

tion, but the court concluded that the new reasoning failed to elaborate

meaningfully on the illegality rationale.

The Government appealed the various District Court decisions to

the Second, Ninth, and D. C. Circuits, respectively. While those ap-

peals were pending, the Government filed three petitions for certiorari

Cite as: 591 U. S. ____ (2020) 3

Syllabus

before judgment. Following the Ninth Circuit affirmance in Regents,

this Court granted certiorari.

Held: The judgment in No. 18–587 is vacated in part and reversed in

part; the judgment in No. 18–588 is affirmed; the February 13, 2018

order in No. 18–589 is vacated, the November 9, 2017 order is affirmed

in part, and the March 29, 2018 order is reversed in part; and all of the

cases are remanded.

No. 18–587, 908 F. 3d 476, vacated in part and reversed in part; No. 18–

588, affirmed; and No. 18–589, February 13, 2018 order vacated, No-

vember 9, 2017 order affirmed in part, and March 29, 2018 order re-

versed in part; all cases remanded.

THE CHIEF JUSTICE delivered the opinion of the Court, except as to

Part IV, concluding:

1. DHS’s rescission decision is reviewable under the APA and is

within this Court’s jurisdiction. Pp. 9–13.

(a) The APA’s “basic presumption of judicial review” of agency ac-

tion, Abbott Laboratories v. Gardner, 387 U. S. 136, 140, can be rebut-

ted by showing that the “agency action is committed to agency discre-

tion by law,” 5 U. S. C. §701(a)(2). In Heckler v. Chaney, the Court held

that this narrow exception includes an agency’s decision not to insti-

tute an enforcement action. 470 U. S. 821, 831–832. The Government

contends that DACA is a general non-enforcement policy equivalent to

the individual non-enforcement decision in Chaney. But the DACA

Memorandum did not merely decline to institute enforcement proceed-

ings; it created a program for conferring affirmative immigration re-

lief. Therefore, unlike the non-enforcement decision in Chaney,

DACA’s creation—and its rescission—is an “action [that] provides a

focus for judicial review.” Id., at 832. In addition, by virtue of receiving

deferred action, 700,000 DACA recipients may request work authori-

zation and are eligible for Social Security and Medicare. Access to such

benefits is an interest “courts often are called upon to protect.” Ibid.

DACA’s rescission is thus subject to review under the APA. Pp. 9–12.

(b) The two jurisdictional provisions of the INA invoked by the

Government do not apply. Title 8 U. S. C. §1252(b)(9), which bars re-

view of claims arising from “action[s]” or “proceeding[s] brought to re-

move an alien,” is inapplicable where, as here, the parties do not chal-

lenge any removal proceedings. And the rescission is not a decision “to

commence proceedings, adjudicate cases, or execute removal orders”

within the meaning of §1252(g). Pp. 12–13.

2. DHS’s decision to rescind DACA was arbitrary and capricious un-

der the APA. Pp. 13–26.

(a) In assessing the rescission, the Government urges the Court to

consider not just the contemporaneous explanation offered by Acting

Secretary Duke but also the additional reasons supplied by Secretary

4 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Syllabus

Nielsen nine months later. Judicial review of agency action, however,

is limited to “the grounds that the agency invoked when it took the

action.” Michigan v. EPA, 576 U. S. 743, 758. If those grounds are

inadequate, a court may remand for the agency to offer “a fuller expla-

nation of the agency’s reasoning at the time of the agency action,” Pen-

sion Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654

(emphasis added), or to “deal with the problem afresh” by taking new

agency action, SEC v. Chenery Corp., 332 U. S. 194, 201. Because Sec-

retary Nielsen chose not to take new action, she was limited to elabo-

rating on the agency’s original reasons. But her reasoning bears little

relationship to that of her predecessor and consists primarily of imper-

missible “post hoc rationalization.” Citizens to Preserve Overton Park,

Inc. v. Volpe, 401 U. S. 402, 420. The rule requiring a new decision

before considering new reasons is not merely a formality. It serves

important administrative law values by promoting agency accounta-

bility to the public, instilling confidence that the reasons given are not

simply convenient litigating positions, and facilitating orderly review.

Each of these values would be markedly undermined if this Court al-

lowed DHS to rely on reasons offered nine months after the rescission

and after three different courts had identified flaws in the original ex-

planation. Pp. 13–17.

(b) Acting Secretary Duke’s rescission memorandum failed to con-

sider important aspects of the problem before the agency. Although

Duke was bound by the Attorney General’s determination that DACA

is illegal, see 8 U. S. C. §1103(a)(1), deciding how best to address that

determination involved important policy choices reserved for DHS.

Acting Secretary Duke plainly exercised such discretionary authority

in winding down the program, but she did not appreciate the full scope

of her discretion. The Attorney General concluded that the legal de-

fects in DACA mirrored those that the courts had recognized in DAPA.

The Fifth Circuit, the highest court to offer a reasoned opinion on

DAPA’s legality, found that DAPA violated the INA because it ex-

tended eligibility for benefits to a class of unauthorized aliens. But the

defining feature of DAPA (and DACA) is DHS’s decision to defer re-

moval, and the Fifth Circuit carefully distinguished that forbearance

component from the associated benefits eligibility. Eliminating bene-

fits eligibility while continuing forbearance thus remained squarely

within Duke’s discretion. Yet, rather than addressing forbearance in

her decision, Duke treated the Attorney General’s conclusion regard-

ing the illegality of benefits as sufficient to rescind both benefits and

forbearance, without explanation. That reasoning repeated the error

in Motor Vehicle Manufacturers Association of the United States, Inc.

v. State Farm— treating a rationale that applied to only part of a policy

as sufficient to rescind the entire policy. 463 U. S. 29, 51. While DHS

Cite as: 591 U. S. ____ (2020) 5

Syllabus

was not required to “consider all policy alternatives,” ibid., deferred

action was “within the ambit of the existing” policy, ibid.; indeed, it

was the centerpiece of the policy. In failing to consider the option to

retain deferred action, Duke “failed to supply the requisite ‘reasoned

analysis.’ ” Id., at 57.

That omission alone renders Duke’s decision arbitrary and capri-

cious, but it was not the only defect. Duke also failed to address

whether there was “legitimate reliance” on the DACA Memorandum.

Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742. Certain

features of the DACA policy may affect the strength of any reliance

interests, but those features are for the agency to consider in the first

instance. DHS has flexibility in addressing any reliance interests and

could have considered various accommodations. While the agency was

not required to pursue these accommodations, it was required to assess

the existence and strength of any reliance interests, and weigh them

against competing policy concerns. Its failure to do so was arbitrary

and capricious. Pp. 17–26.

THE CHIEF JUSTICE, joined by JUSTICE GINSBURG, JUSTICE BREYER,

and JUSTICE KAGAN, concluded in Part IV that respondents’ claims fail

to establish a plausible inference that the rescission was motivated by

animus in violation of the equal protection guarantee of the Fifth

Amendment. Pp. 27–29.

ROBERTS, C. J., delivered the opinion of the Court, except as to Part IV.

GINSBURG, BREYER, and KAGAN, JJ., joined that opinion in full, and SO-

TOMAYOR, J., joined as to all but Part IV. SOTOMAYOR, J., filed an opinion

concurring in part, concurring in the judgment in part, and dissenting in

part. THOMAS, J., filed an opinion concurring in the judgment in part and

dissenting in part, in which ALITO and GORSUCH, JJ., joined. ALITO, J.,

and KAVANAUGH, J., filed opinions concurring in the judgment in part

and dissenting in part.

Cite as: 591 U. S. ____ (2020) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 18–587, 18–588, and 18–589

_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587 v.

REGENTS OF THE UNIVERSITY OF

CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588 v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589 v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[June 18, 2020]

2 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court, except as to Part IV.

In the summer of 2012, the Department of Homeland Se-

curity (DHS) announced an immigration program known as

Deferred Action for Childhood Arrivals, or DACA. That

program allows certain unauthorized aliens who entered

the United States as children to apply for a two-year for-

bearance of removal. Those granted such relief are also

eligible for work authorization and various federal benefits.

Some 700,000 aliens have availed themselves of this

opportunity.

Five years later, the Attorney General advised DHS to

rescind DACA, based on his conclusion that it was unlaw-

ful. The Department’s Acting Secretary issued a memoran-

dum terminating the program on that basis. The termina-

tion was challenged by affected individuals and third

parties who alleged, among other things, that the Acting

Secretary had violated the Administrative Procedure Act

(APA) by failing to adequately address important factors

bearing on her decision. For the reasons that follow, we

conclude that the Acting Secretary did violate the APA, and

that the rescission must be vacated.

I

A

In June 2012, the Secretary of Homeland Security issued

a memorandum announcing an immigration relief program

for “certain young people who were brought to this country

as children.” App. to Pet. for Cert. in No. 18–587, p. 97a

(App. to Pet. for Cert.). Known as DACA, the program ap-

plies to childhood arrivals who were under age 31 in 2012;

have continuously resided here since 2007; are current stu-

dents, have completed high school, or are honorably dis-

charged veterans; have not been convicted of any serious

crimes; and do not threaten national security or public

Cite as: 591 U. S. ____ (2020) 3

Opinion of the Court

safety. Id., at 98a. DHS concluded that individuals who

meet these criteria warrant favorable treatment under the

immigration laws because they “lacked the intent to violate

the law,” are “productive” contributors to our society, and

“know only this country as home.” Id., at 98a–99a.

“[T]o prevent [these] low priority individuals from being

removed from the United States,” the DACA Memorandum

instructs Immigration and Customs Enforcement to “exer-

cise prosecutorial discretion[ ] on an individual basis . . . by

deferring action for a period of two years, subject to re-

newal.” Id., at 100a. In addition, it directs U. S. Citizen-

ship and Immigration Services (USCIS) to “accept applica-

tions to determine whether these individuals qualify for

work authorization during this period of deferred action,”

id., at 101a, as permitted under regulations long predating

DACA’s creation, see 8 CFR §274a.12(c)(14) (2012) (permit-

ting work authorization for deferred action recipients who

establish “economic necessity”); 46 Fed. Reg. 25080–25081

(1981) (similar). Pursuant to other regulations, deferred ac-

tion recipients are considered “lawfully present” for pur-

poses of, and therefore eligible to receive, Social Security

and Medicare benefits. See 8 CFR §1.3(a)(4)(vi); 42 CFR

§417.422(h) (2012).

In November 2014, two years after DACA was promul-

gated, DHS issued a memorandum announcing that it

would expand DACA eligibility by removing the age cap,

shifting the date-of-entry requirement from 2007 to 2010,

and extending the deferred action and work authorization

period to three years. App. to Pet. for Cert. 106a–107a. In

the same memorandum, DHS created a new, related pro-

gram known as Deferred Action for Parents of Americans

and Lawful Permanent Residents, or DAPA. That program

would have authorized deferred action for up to 4.3 million

parents whose children were U. S. citizens or lawful perma-

nent residents. These parents were to enjoy the same for-

bearance, work eligibility, and other benefits as DACA

4 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

recipients.

Before the DAPA Memorandum was implemented, 26

States, led by Texas, filed suit in the Southern District of

Texas. The States contended that DAPA and the DACA

expansion violated the APA’s notice and comment require-

ment, the Immigration and Nationality Act (INA), and the

Executive’s duty under the Take Care Clause of the Consti-

tution. The District Court found that the States were likely

to succeed on the merits of at least one of their claims and

entered a nationwide preliminary injunction barring imple-

mentation of both DAPA and the DACA expansion. See

Texas v. United States, 86 F. Supp. 3d 591, 677–678 (2015).

A divided panel of the Court of Appeals for the Fifth Cir-

cuit affirmed the preliminary injunction. Texas v. United

States, 809 F. 3d 134, 188 (2015). In opposing the injunc-

tion, the Government argued that the DAPA Memorandum

reflected an unreviewable exercise of the Government’s en-

forcement discretion. The Fifth Circuit majority disagreed.

It reasoned that the deferred action described in the DAPA

Memorandum was “much more than nonenforcement: It

would affirmatively confer ‘lawful presence’ and associated

benefits on a class of unlawfully present aliens.” Id., at 166.

From this, the majority concluded that the creation of the

DAPA program was not an unreviewable action “committed

to agency discretion by law.” Id., at 169 (quoting 5 U. S. C.

§701(a)(2)).

The majority then upheld the injunction on two grounds.

It first concluded the States were likely to succeed on their

procedural claim that the DAPA Memorandum was a sub-

stantive rule that was required to undergo notice and com-

ment. It then held that the APA required DAPA to be set

aside because the program was “manifestly contrary” to the

INA, which “expressly and carefully provides legal designa-

tions allowing defined classes” to “receive the benefits” as-

sociated with “lawful presence” and to qualify for work

Cite as: 591 U. S. ____ (2020) 5

Opinion of the Court

authorization, 809 F. 3d, at 179–181, 186 (internal quota-

tion marks omitted). Judge King dissented.

This Court affirmed the Fifth Circuit’s judgment by an

equally divided vote, which meant that no opinion was is-

sued. United States v. Texas, 579 U. S. ___ (2016) (per cu-

riam). For the next year, litigation over DAPA and the

DACA expansion continued in the Southern District of

Texas, while implementation of those policies remained

enjoined.

Then, in June 2017, following a change in Presidential

administrations, DHS rescinded the DAPA Memorandum.

In explaining that decision, DHS cited the preliminary in-

junction and ongoing litigation in Texas, the fact that

DAPA had never taken effect, and the new administration’s

immigration enforcement priorities.

Three months later, in September 2017, Attorney

General Jefferson B. Sessions III sent a letter to Acting Sec-

retary of Homeland Security Elaine C. Duke, “advis[ing]”

that DHS “should rescind” DACA as well. App. 877. Citing

the Fifth Circuit’s opinion and this Court’s equally divided

affirmance, the Attorney General concluded that DACA

shared the “same legal . . . defects that the courts recog-

nized as to DAPA” and was “likely” to meet a similar fate.

Id., at 878. “In light of the costs and burdens” that a rescis-

sion would “impose[ ] on DHS,” the Attorney General urged

DHS to “consider an orderly and efficient wind-down

process.” Ibid.

The next day, Duke acted on the Attorney General’s ad-

vice. In her decision memorandum, Duke summarized the

history of the DACA and DAPA programs, the Fifth Circuit

opinion and ensuing affirmance, and the contents of the At-

torney General’s letter. App. to Pet. for Cert. 111a–117a.

“Taking into consideration the Supreme Court’s and the

Fifth Circuit’s rulings” and the “letter from the Attorney

General,” she concluded that the “DACA program should be

terminated.” Id., at 117a.

6 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Duke then detailed how the program would be wound

down: No new applications would be accepted, but DHS

would entertain applications for two-year renewals from

DACA recipients whose benefits were set to expire within

six months. For all other DACA recipients, previously is-

sued grants of deferred action and work authorization

would not be revoked but would expire on their own terms,

with no prospect for renewal. Id., at 117a–118a.

B

Within days of Acting Secretary Duke’s rescission an-

nouncement, multiple groups of plaintiffs ranging from in-

dividual DACA recipients and States to the Regents of the

University of California and the National Association for

the Advancement of Colored People challenged her decision

in the U. S. District Courts for the Northern District of Cal-

ifornia (Regents, No. 18–587), the Eastern District of New

York (Batalla Vidal, No. 18–589), and the District of Co-

lumbia (NAACP, No. 18–588). The relevant claims are that

the rescission was arbitrary and capricious in violation of

the APA and that it infringed the equal protection guaran-

tee of the Fifth Amendment’s Due Process Clause.1

All three District Courts ruled for the plaintiffs, albeit at

different stages of the proceedings.2 In doing so, each court

rejected the Government’s threshold arguments that the

——————

1 Plaintiffs also raised notice and comment claims, which uniformly

failed below, and assorted due process challenges, some of which sur-

vived motions to dismiss. Those claims are not before us.

2 In a related challenge not at issue here, the District Court for the

District of Maryland granted partial summary judgment in favor of the

Government. Casa de Maryland v. United States Dept. of Homeland Se-

curity, 284 F. Supp. 3d 758 (2018). After the Government filed petitions

for certiorari in the instant cases, the Fourth Circuit reversed that deci-

sion and vacated Acting Secretary Duke’s rescission as arbitrary and ca-

pricious. Casa de Maryland v. United States Dept. of Homeland Security,

924 F. 3d 684 (2019), cert. pending, No. 18–1469. The Fourth Circuit has

since stayed its mandate.

Cite as: 591 U. S. ____ (2020) 7

Opinion of the Court

claims were unreviewable under the APA and that the INA

deprived the court of jurisdiction. 298 F. Supp. 3d 209,

223–224, 234–235 (DC 2018); 279 F. Supp. 3d 1011, 1029–

1033 (ND Cal. 2018); 295 F. Supp. 3d 127, 150, 153–154

(EDNY 2017).

In Regents and Batalla Vidal, the District Courts held

that the equal protection claims were adequately alleged.

298 F. Supp. 3d 1304, 1315 (ND Cal. 2018); 291 F. Supp. 3d

260, 279 (EDNY 2018). Those courts also entered coexten-

sive nationwide preliminary injunctions, based on the con-

clusion that the plaintiffs were likely to succeed on the mer-

its of their claims that the rescission was arbitrary and

capricious. These injunctions did not require DHS to accept

new applications, but did order the agency to allow DACA

recipients to “renew their enrollments.” 279 F. Supp. 3d, at

1048; see 279 F. Supp. 3d 401, 437 (EDNY 2018).

In NAACP, the D. C. District Court took a different

course. In April 2018, it deferred ruling on the equal pro-

tection challenge but granted partial summary judgment to

the plaintiffs on their APA claim, holding that Acting Sec-

retary Duke’s “conclusory statements were insufficient to

explain the change in [the agency’s] view of DACA’s lawful-

ness.” 298 F. Supp. 3d, at 243. The District Court stayed

its order for 90 days to permit DHS to “reissue a memoran-

dum rescinding DACA, this time providing a fuller expla-

nation for the determination that the program lacks statu-

tory and constitutional authority.” Id., at 245.

Two months later, Duke’s successor, Secretary Kirstjen

M. Nielsen, responded via memorandum. App. to Pet. for

Cert. 120a–126a. She explained that, “[h]aving considered

the Duke memorandum,” she “decline[d] to disturb” the re-

scission. Id., at 121a. Secretary Nielsen went on to articu-

late her “understanding” of Duke’s memorandum, identify-

ing three reasons why, in Nielsen’s estimation, “the

decision to rescind the DACA policy was, and remains,

sound.” Ibid. First, she reiterated that, “as the Attorney

8 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

General concluded, the DACA policy was contrary to law.”

Id., at 122a. Second, she added that, regardless, the agency

had “serious doubts about [DACA’s] legality” and, for law

enforcement reasons, wanted to avoid “legally questiona-

ble” policies. Id., at 123a. Third, she identified multiple

policy reasons for rescinding DACA, including (1) the belief

that any class-based immigration relief should come from

Congress, not through executive non-enforcement; (2)

DHS’s preference for exercising prosecutorial discretion on

“a truly individualized, case-by-case basis”; and (3) the im-

portance of “project[ing] a message” that immigration laws

would be enforced against all classes and categories of al-

iens. Id., at 123a–124a. In her final paragraph, Secretary

Nielsen acknowledged the “asserted reliance interests” in

DACA’s continuation but concluded that they did not “out-

weigh the questionable legality of the DACA policy and the

other reasons” for the rescission discussed in her memoran-

dum. Id., at 125a.

The Government asked the D. C. District Court to revise

its prior order in light of the reasons provided by Secretary

Nielsen, but the court declined. In the court’s view, the new

memorandum, which “fail[ed] to elaborate meaningfully”

on the agency’s illegality rationale, still did not provide an

adequate explanation for the September 2017 rescission.

315 F. Supp. 3d 457, 460, 473–474 (2018).

The Government appealed the various District Court de-

cisions to the Second, Ninth, and D. C. Circuits, respec-

tively. In November 2018, while those appeals were pend-

ing, the Government simultaneously filed three petitions

for certiorari before judgment. After the Ninth Circuit af-

firmed the nationwide injunction in Regents, see 908 F. 3d

476 (2018), but before rulings from the other two Circuits,

we granted the petitions and consolidated the cases for ar-

gument. 588 U. S. ___ (2019). The issues raised here are

(1) whether the APA claims are reviewable, (2) if so,

Cite as: 591 U. S. ____ (2020) 9

Opinion of the Court

whether the rescission was arbitrary and capricious in vio-

lation of the APA, and (3) whether the plaintiffs have stated

an equal protection claim.

II

The dispute before the Court is not whether DHS may

rescind DACA. All parties agree that it may. The dispute

is instead primarily about the procedure the agency fol-

lowed in doing so.

The APA “sets forth the procedures by which federal

agencies are accountable to the public and their actions

subject to review by the courts.” Franklin v. Massachusetts,

505 U. S. 788, 796 (1992). It requires agencies to engage in

“reasoned decisionmaking,” Michigan v. EPA, 576 U. S.

743, 750 (2015) (internal quotation marks omitted), and di-

rects that agency actions be “set aside” if they are “arbi-

trary” or “capricious,” 5 U. S. C. §706(2)(A). Under this

“narrow standard of review, . . . a court is not to substitute

its judgment for that of the agency,” FCC v. Fox Television

Stations, Inc., 556 U. S. 502, 513 (2009) (internal quotation

marks omitted), but instead to assess only whether the de-

cision was “based on a consideration of the relevant factors

and whether there has been a clear error of judgment,” Cit-

izens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402,

416 (1971).

But before determining whether the rescission was arbi-

trary and capricious, we must first address the Govern-

ment’s contentions that DHS’s decision is unreviewable

under the APA and outside this Court’s jurisdiction.

A

The APA establishes a “basic presumption of judicial

review [for] one ‘suffering legal wrong because of agency ac-

tion.’ ” Abbott Laboratories v. Gardner, 387 U. S. 136, 140

(1967) (quoting §702). That presumption can be rebutted

by a showing that the relevant statute “preclude[s]” review,

10 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

§701(a)(1), or that the “agency action is committed to

agency discretion by law,” §701(a)(2). The latter exception

is at issue here.

To “honor the presumption of review, we have read the

exception in §701(a)(2) quite narrowly,” Weyerhaeuser Co.

v. United States Fish and Wildlife Serv., 586 U. S. ___, ___

(2018) (slip op., at 12), confining it to those rare “adminis-

trative decision[s] traditionally left to agency discretion,”

Lincoln v. Vigil, 508 U. S. 182, 191 (1993). This limited cat-

egory of unreviewable actions includes an agency’s decision

not to institute enforcement proceedings, Heckler v.

Chaney, 470 U. S. 821, 831–832 (1985), and it is on that ex-

ception that the Government primarily relies.

In Chaney, several death-row inmates petitioned the

Food and Drug Administration (FDA) to take enforcement

action against two States to prevent their use of certain

drugs for lethal injection. The Court held that the FDA’s

denial of that petition was presumptively unreviewable in

light of the well-established “tradition” that “an agency’s

decision not to prosecute or enforce” is “generally commit-

ted to an agency’s absolute discretion.” Id., at 831. We

identified a constellation of reasons that underpin this tra-

dition. To start, a non-enforcement decision “often involves

a complicated balancing of a number of factors which

are peculiarly within [the agency’s] expertise,” such as

“whether the particular enforcement action requested best

fits the agency’s overall policies.” Ibid. The decision also

mirrors, “to some extent,” a prosecutor’s decision not to in-

dict, which has “long been regarded as the special province

of the Executive Branch.” Id., at 832. And, as a practical

matter, “when an agency refuses to act” there is no action

to “provide[ ] a focus for judicial review.” Ibid.

The Government contends that a general non-enforcement

policy is equivalent to the individual non-enforcement

decision at issue in Chaney. In each case, the Government

argues, the agency must balance factors peculiarly within

Cite as: 591 U. S. ____ (2020) 11

Opinion of the Court

its expertise, and does so in a manner akin to a criminal

prosecutor. Building on that premise, the Government ar-

gues that the rescission of a non-enforcement policy is no

different—for purposes of reviewability—from the adoption

of that policy. While the rescission may lead to increased

enforcement, it does not, by itself, constitute a particular

enforcement action. Applying this logic to the facts here,

the Government submits that DACA is a non-enforcement

policy and that its rescission is therefore unreviewable.

But we need not test this chain of reasoning because

DACA is not simply a non-enforcement policy. For starters,

the DACA Memorandum did not merely “refus[e] to insti-

tute proceedings” against a particular entity or even a par-

ticular class. Ibid. Instead, it directed USCIS to “establish

a clear and efficient process” for identifying individuals who

met the enumerated criteria. App. to Pet. for Cert. 100a.

Based on this directive, USCIS solicited applications from

eligible aliens, instituted a standardized review process,

and sent formal notices indicating whether the alien would

receive the two-year forbearance. These proceedings are ef-

fectively “adjudicat[ions].” Id., at 117a. And the result of

these adjudications—DHS’s decision to “grant deferred ac-

tion,” Brief for Petitioners 45—is an “affirmative act of ap-

proval,” the very opposite of a “refus[al] to act,” Chaney, 470

U. S., at 831–832. In short, the DACA Memorandum does

not announce a passive non-enforcement policy; it created

a program for conferring affirmative immigration relief.

The creation of that program—and its rescission—is an “ac-

tion [that] provides a focus for judicial review.” Id., at 832.

The benefits attendant to deferred action provide

further confirmation that DACA is more than simply a

non-enforcement policy. As described above, by virtue of

receiving deferred action, the 700,000 DACA recipients may

request work authorization and are eligible for Social Secu-

rity and Medicare. See supra, at 3. Unlike an agency’s re-

fusal to take requested enforcement action, access to these

12 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

types of benefits is an interest “courts often are called upon

to protect.” Chaney, 470 U. S., at 832. See also Barnhart v.

Thomas, 540 U. S. 20 (2003) (reviewing eligibility determi-

nation for Social Security benefits).

Because the DACA program is more than a non-enforce-

ment policy, its rescission is subject to review under the

APA.

B

The Government also invokes two jurisdictional provi-

sions of the INA as independent bars to review. Neither

applies.

Section 1252(b)(9) bars review of claims arising from “ac-

tion[s]” or “proceeding[s] brought to remove an alien.” 66

Stat. 209, as amended, 8 U. S. C. §1252(b)(9). That tar-

geted language is not aimed at this sort of case. As we have

said before, §1252(b)(9) “does not present a jurisdictional

bar” where those bringing suit “are not asking for review of

an order of removal,” “the decision . . . to seek removal,” or

“the process by which . . . removability will be determined.”

Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (plu-

rality opinion) (slip op., at 10–11); id., at ___ (BREYER, J.,

dissenting) (slip op., at 31). And it is certainly not a bar

where, as here, the parties are not challenging any removal

proceedings.

Section 1252(g) is similarly narrow. That provision limits

review of cases “arising from” decisions “to commence pro-

ceedings, adjudicate cases, or execute removal orders.”

§1252(g). We have previously rejected as “implausible” the

Government’s suggestion that §1252(g) covers “all claims

arising from deportation proceedings” or imposes “a general

jurisdictional limitation.” Reno v. American-Arab Anti-

Discrimination Comm., 525 U. S. 471, 482 (1999). The re-

scission, which revokes a deferred action program with as-

sociated benefits, is not a decision to “commence proceed-

ings,” much less to “adjudicate” a case or “execute” a

Cite as: 591 U. S. ____ (2020) 13

Opinion of the Court

removal order.

With these preliminary arguments out of the way, we

proceed to the merits.

III

A

Deciding whether agency action was adequately ex-

plained requires, first, knowing where to look for the

agency’s explanation. The natural starting point here is the

explanation provided by Acting Secretary Duke when she

announced the rescission in September 2017. But the Gov-

ernment urges us to go on and consider the June 2018 mem-

orandum submitted by Secretary Nielsen as well. That

memo was prepared after the D. C. District Court vacated

the Duke rescission and gave DHS an opportunity to “reis-

sue a memorandum rescinding DACA, this time providing

a fuller explanation for the determination that the program

lacks statutory and constitutional authority.” 298 F. Supp.

3d, at 245. According to the Government, the Nielsen Mem-

orandum is properly before us because it was invited by the

District Court and reflects the views of the Secretary of

Homeland Security—the official responsible for immigra-

tion policy. Respondents disagree, arguing that the Nielsen

Memorandum, issued nine months after the rescission, im-

permissibly asserts prudential and policy reasons not relied

upon by Duke.

It is a “foundational principle of administrative law” that

judicial review of agency action is limited to “the grounds

that the agency invoked when it took the action.” Michigan,

576 U. S., at 758. If those grounds are inadequate, a court

may remand for the agency to do one of two things: First,

the agency can offer “a fuller explanation of the agency’s

reasoning at the time of the agency action.” Pension Benefit

Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654

(1990) (emphasis added). See also Alpharma, Inc. v.

14 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Leavitt, 460 F. 3d 1, 5–6 (CADC 2006) (Garland, J.) (per-

mitting an agency to provide an “amplified articulation” of

a prior “conclusory” observation (internal quotation marks

omitted)). This route has important limitations. When an

agency’s initial explanation “indicate[s] the determinative

reason for the final action taken,” the agency may elaborate

later on that reason (or reasons) but may not provide new

ones. Camp v. Pitts, 411 U. S. 138, 143 (1973) (per curiam).

Alternatively, the agency can “deal with the problem

afresh” by taking new agency action. SEC v. Chenery Corp.,

332 U. S. 194, 201 (1947) (Chenery II). An agency taking

this route is not limited to its prior reasons but must comply

with the procedural requirements for new agency action.

The District Court’s remand thus presented DHS with a

choice: rest on the Duke Memorandum while elaborating on

its prior reasoning, or issue a new rescission bolstered by

new reasons absent from the Duke Memorandum. Secre-

tary Nielsen took the first path. Rather than making a new

decision, she “decline[d] to disturb the Duke memoran-

dum’s rescission” and instead “provide[d] further explana-

tion” for that action. App. to Pet. for Cert. 121a. Indeed,

the Government’s subsequent request for reconsideration

described the Nielsen Memorandum as “additional expla-

nation for [Duke’s] decision” and asked the District Court

to “leave in place [Duke’s] September 5, 2017 decision to re-

scind the DACA policy.” Motion to Revise Order in No. 17–

cv–1907 etc. (D DC), pp. 2, 19. Contrary to the position of

the Government before this Court, and of JUSTICE

KAVANAUGH in dissent, post, at 4 (opinion concurring in

judgment in part and dissenting in part), the Nielsen Mem-

orandum was by its own terms not a new rule implementing

a new policy.

Because Secretary Nielsen chose to elaborate on the rea-

sons for the initial rescission rather than take new admin-

istrative action, she was limited to the agency’s original rea-

sons, and her explanation “must be viewed critically” to

Cite as: 591 U. S. ____ (2020) 15

Opinion of the Court

ensure that the rescission is not upheld on the basis of im-

permissible “post hoc rationalization.” Overton Park, 401

U. S., at 420. But despite purporting to explain the Duke

Memorandum, Secretary Nielsen’s reasoning bears little

relationship to that of her predecessor. Acting Secretary

Duke rested the rescission on the conclusion that DACA is

unlawful. Period. See App. to Pet. for Cert. 117a. By con-

trast, Secretary Nielsen’s new memorandum offered three

“separate and independently sufficient reasons” for the re-

scission, id., at 122a, only the first of which is the conclusion

that DACA is illegal.

Her second reason is that DACA is, at minimum, legally

questionable and should be terminated to maintain public

confidence in the rule of law and avoid burdensome litiga-

tion. No such justification can be found in the Duke Mem-

orandum. Legal uncertainty is, of course, related to illegal-

ity. But the two justifications are meaningfully distinct,

especially in this context. While an agency might, for one

reason or another, choose to do nothing in the face of uncer-

tainty, illegality presumably requires remedial action of

some sort.

The policy reasons that Secretary Nielsen cites as a third

basis for the rescission are also nowhere to be found in the

Duke Memorandum. That document makes no mention of

a preference for legislative fixes, the superiority of case-by-

case decisionmaking, the importance of sending a message

of robust enforcement, or any other policy consideration.

Nor are these points included in the legal analysis from the

Fifth Circuit and the Attorney General. They can be viewed

only as impermissible post hoc rationalizations and thus

are not properly before us.

The Government, echoed by JUSTICE KAVANAUGH, pro-

tests that requiring a new decision before considering Niel-

sen’s new justifications would be “an idle and useless for-

mality.” NLRB v. Wyman-Gordon Co., 394 U. S. 759, 766,

16 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

n. 6 (1969) (plurality opinion). See also post, at 5. Proce-

dural requirements can often seem such. But here the rule

serves important values of administrative law. Requiring

a new decision before considering new reasons promotes

“agency accountability,” Bowen v. American Hospital Assn.,

476 U. S. 610, 643 (1986), by ensuring that parties and the

public can respond fully and in a timely manner to an

agency’s exercise of authority. Considering only contempo-

raneous explanations for agency action also instills confi-

dence that the reasons given are not simply “convenient lit-

igating position[s].” Christopher v. SmithKline Beecham

Corp., 567 U. S. 142, 155 (2012) (internal quotation marks

omitted). Permitting agencies to invoke belated justifica-

tions, on the other hand, can upset “the orderly functioning

of the process of review,” SEC v. Chenery Corp., 318 U. S.

80, 94 (1943), forcing both litigants and courts to chase a

moving target. Each of these values would be markedly un-

dermined were we to allow DHS to rely on reasons offered

nine months after Duke announced the rescission and after

three different courts had identified flaws in the original

explanation.

JUSTICE KAVANAUGH asserts that this “foundational

principle of administrative law,” Michigan, 576 U. S., at

758, actually limits only what lawyers may argue, not what

agencies may do. Post, at 5. While it is true that the Court

has often rejected justifications belatedly advanced by ad-

vocates, we refer to this as a prohibition on post hoc ration-

alizations, not advocate rationalizations, because the prob-

lem is the timing, not the speaker. The functional reasons

for requiring contemporaneous explanations apply with

equal force regardless whether post hoc justifications are

raised in court by those appearing on behalf of the agency

or by agency officials themselves. See American Textile

Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 539 (1981)

(“[T]he post hoc rationalizations of the agency . . . cannot

serve as a sufficient predicate for agency action.”); Overton

Cite as: 591 U. S. ____ (2020) 17

Opinion of the Court

Park, 401 U. S., at 419 (rejecting “litigation affidavits” from

agency officials as “merely ‘post hoc’ rationalizations”).3

Justice Holmes famously wrote that “[m]en must turn

square corners when they deal with the Government.” Rock

Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143

(1920). But it is also true, particularly when so much is at

stake, that “the Government should turn square corners in

dealing with the people.” St. Regis Paper Co. v. United

States, 368 U. S. 208, 229 (1961) (Black, J., dissenting). The

basic rule here is clear: An agency must defend its actions

based on the reasons it gave when it acted. This is not the

case for cutting corners to allow DHS to rely upon reasons

absent from its original decision.

B

We turn, finally, to whether DHS’s decision to rescind

DACA was arbitrary and capricious. As noted earlier, Act-

ing Secretary Duke’s justification for the rescission was suc-

cinct: “Taking into consideration” the Fifth Circuit’s conclu-

sion that DAPA was unlawful because it conferred benefits

in violation of the INA, and the Attorney General’s conclu-

sion that DACA was unlawful for the same reason, she

concluded—without elaboration—that the “DACA program

should be terminated.” App. to Pet. for Cert. 117a.4

——————

3 JUSTICE KAVANAUGH further argues that the contemporaneous expla-

nation requirement applies only to agency adjudications, not rule-

makings. Post, at 5–6 (opinion concurring in judgment in part and dis-

senting in part). But he cites no authority limiting this basic principle—

which the Court regularly articulates in the context of rulemakings—to

adjudications. The Government does not even raise this unheralded ar-

gument.

4 The Government contends that Acting Secretary Duke also focused

on litigation risk. Although the background section of her memo refer-

ences a letter from the Texas Attorney General threatening to challenge

DACA, the memo never asserts that the rescission was intended to avert

litigation. And, given the Attorney General’s conclusion that the policy

was unlawful—and thus presumably could not be maintained or de-

fended in its current form—it is difficult to see how the risk of litigation

18 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Respondents maintain that this explanation is deficient

for three reasons. Their first and second arguments work

in tandem, claiming that the Duke Memorandum does not

adequately explain the conclusion that DACA is unlawful,

and that this conclusion is, in any event, wrong. While

those arguments carried the day in the lower courts, in our

view they overlook an important constraint on Acting Sec-

retary Duke’s decisionmaking authority—she was bound by

the Attorney General’s legal determination.

The same statutory provision that establishes the Secre-

tary of Homeland Security’s authority to administer and en-

force immigration laws limits that authority, specifying

that, with respect to “all questions of law,” the determina-

tions of the Attorney General “shall be controlling.” 8

U. S. C. §1103(a)(1). Respondents are aware of this con-

straint. Indeed they emphasized the point in the reviewa-

bility sections of their briefs. But in their merits argu-

ments, respondents never addressed whether or how this

unique statutory provision might affect our review. They

did not discuss whether Duke was required to explain a le-

gal conclusion that was not hers to make. Nor did they dis-

cuss whether the current suits challenging Duke’s rescis-

sion decision, which everyone agrees was within her legal

authority under the INA, are proper vehicles for attacking

the Attorney General’s legal conclusion.

Because of these gaps in respondents’ briefing, we do not

evaluate the claims challenging the explanation and cor-

rectness of the illegality conclusion. Instead we focus our

attention on respondents’ third argument—that Acting Sec-

retary Duke “failed to consider . . . important aspect[s] of

the problem” before her. Motor Vehicle Mfrs. Assn. of

United States, Inc. v. State Farm Mut. Automobile Ins. Co.,

463 U. S. 29, 43 (1983).

——————

carried any independent weight.

Cite as: 591 U. S. ____ (2020) 19

Opinion of the Court

Whether DACA is illegal is, of course, a legal determina-

tion, and therefore a question for the Attorney General. But

deciding how best to address a finding of illegality moving

forward can involve important policy choices, especially

when the finding concerns a program with the breadth of

DACA. Those policy choices are for DHS.

Acting Secretary Duke plainly exercised such discretion-

ary authority in winding down the program. See App. to

Pet. for Cert. 117a–118a (listing the Acting Secretary’s de-

cisions on eight transition issues). Among other things, she

specified that those DACA recipients whose benefits were

set to expire within six months were eligible for two-year

renewals. Ibid.

But Duke did not appear to appreciate the full scope of

her discretion, which picked up where the Attorney Gen-

eral’s legal reasoning left off. The Attorney General con-

cluded that “the DACA policy has the same legal . . . defects

that the courts recognized as to DAPA.” App. 878. So, to

understand those defects, we look to the Fifth Circuit, the

highest court to offer a reasoned opinion on the legality

of DAPA. That court described the “core” issue before it as

the “Secretary’s decision” to grant “eligibility for benefits”—

including work authorization, Social Security, and

Medicare—to unauthorized aliens on “a class-wide basis.”

Texas, 809 F. 3d, at 170; see id., at 148, 184. The Fifth Cir-

cuit’s focus on these benefits was central to every stage of

its analysis. See id., at 155 (standing); id., at 163 (zone of

interest); id., at 164 (applicability of §1252(g)); id., at 166

(reviewability); id., at 176–177 (notice and comment); id., at

184 (substantive APA). And the Court ultimately held that

DAPA was “manifestly contrary to the INA” precisely be-

cause it “would make 4.3 million otherwise removable al-

iens” eligible for work authorization and public benefits.

Id., at 181–182 (internal quotation marks omitted).5

——————

5 As the Fifth Circuit noted, DAPA recipients were eligible for Social

20 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

But there is more to DAPA (and DACA) than such bene-

fits. The defining feature of deferred action is the decision

to defer removal (and to notify the affected alien of that de-

cision). See App. to Pet. for Cert. 99a. And the Fifth Circuit

was careful to distinguish that forbearance component from

eligibility for benefits. As it explained, the “challenged por-

tion of DAPA’s deferred-action program” was the decision

to make DAPA recipients eligible for benefits. See Texas,

809 F. 3d, at 168, and n. 108. The other “[p]art of DAPA,”

the court noted, “involve[d] the Secretary’s decision—at

least temporarily—not to enforce the immigration laws as

to a class of what he deem[ed] to be low-priority illegal al-

iens.” Id., at 166. Borrowing from this Court’s prior de-

scription of deferred action, the Fifth Circuit observed that

“the states do not challenge the Secretary’s decision to ‘de-

cline to institute proceedings, terminate proceedings, or de-

cline to execute a final order of deportation.’ ” Id., at 168

(quoting Reno, 525 U. S., at 484). And the Fifth Circuit un-

derscored that nothing in its decision or the preliminary in-

junction “requires the Secretary to remove any alien or to

alter” the Secretary’s class-based “enforcement priorities.”

Texas, 809 F. 3d, at 166, 169. In other words, the Secre-

tary’s forbearance authority was unimpaired.

Acting Secretary Duke recognized that the Fifth Circuit’s

holding addressed the benefits associated with DAPA. In

her memorandum she explained that the Fifth Circuit con-

——————

Security and Medicare benefits because they had been designated “law-

fully present.” Texas, 809 F. 3d, at 168. Lawful presence is a statutory

prerequisite for receipt of certain benefits. See id., at 148 (citing 8

U. S. C. §1611). It is not the same as forbearance nor does it flow inexo-

rably from forbearance. Thus, while deferred action recipients have been

designated lawfully present for purposes of Social Security and Medicare

eligibility, see 8 CFR §1.3; 42 CFR §417.422(h), agencies can also exclude

them from this designation, see 45 CFR §152.2(8) (2019) (specifying that

DACA recipients are not considered lawfully present for purposes of cov-

erage under the Affordable Care Act).

Cite as: 591 U. S. ____ (2020) 21

Opinion of the Court

cluded that DAPA “conflicted with the discretion author-

ized by Congress” because the INA “ ‘flatly does not permit

the reclassification of millions of illegal aliens as lawfully

present and thereby make them newly eligible for a host of

federal and state benefits, including work authorization.’ ”

App. to Pet. for Cert. 114a (quoting Texas, 809 F. 3d, at

184). Duke did not characterize the opinion as one about

forbearance.

In short, the Attorney General neither addressed the for-

bearance policy at the heart of DACA nor compelled DHS

to abandon that policy. Thus, removing benefits eligibility

while continuing forbearance remained squarely within the

discretion of Acting Secretary Duke, who was responsible

for “[e]stablishing national immigration enforcement poli-

cies and priorities.” 116 Stat. 2178, 6 U. S. C. §202(5). But

Duke’s memo offers no reason for terminating forbearance.

She instead treated the Attorney General’s conclusion re-

garding the illegality of benefits as sufficient to rescind both

benefits and forbearance, without explanation.

That reasoning repeated the error we identified in one of

our leading modern administrative law cases, Motor Vehicle

Manufacturers Association of the United States, Inc. v. State

Farm Mutual Automobile Insurance Co. There, the Na-

tional Highway Traffic Safety Administration (NHTSA)

promulgated a requirement that motor vehicles produced

after 1982 be equipped with one of two passive restraints:

airbags or automatic seatbelts. 463 U. S., at 37–38, 46.

Four years later, before the requirement went into effect,

NHTSA concluded that automatic seatbelts, the restraint of

choice for most manufacturers, would not provide effective

protection. Based on that premise, NHTSA rescinded the

passive restraint requirement in full. Id., at 38.

We concluded that the total rescission was arbitrary and

capricious. As we explained, NHTSA’s justification sup-

ported only “disallow[ing] compliance by means of ” auto-

matic seatbelts. Id., at 47. It did “not cast doubt” on the

22 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

“efficacy of airbag technology” or upon “the need for a

passive restraint standard.” Ibid. Given NHTSA’s prior

judgment that “airbags are an effective and cost-beneficial

lifesaving technology,” we held that “the mandatory

passive restraint rule [could] not be abandoned without any

consideration whatsoever of an airbags-only requirement.”

Id., at 51.

While the factual setting is different here, the error is the

same. Even if it is illegal for DHS to extend work authori-

zation and other benefits to DACA recipients, that conclu-

sion supported only “disallow[ing]” benefits. Id., at 47. It

did “not cast doubt” on the legality of forbearance or upon

DHS’s original reasons for extending forbearance to child-

hood arrivals. Ibid. Thus, given DHS’s earlier judgment

that forbearance is “especially justified” for “productive

young people” who were brought here as children

and “know only this country as home,” App. to Pet. for

Cert. 98a–99a, the DACA Memorandum could not be re-

scinded in full “without any consideration whatsoever” of a

forbearance-only policy, State Farm, 463 U. S., at 51.6

The Government acknowledges that “[d]eferred action

coupled with the associated benefits are the two legs upon

which the DACA policy stands.” Reply Brief 21. It insists,

however, that “DHS was not required to consider whether

DACA’s illegality could be addressed by separating” the

——————

6 The three-page memorandum that established DACA is devoted en-

tirely to forbearance, save for one sentence directing USCIS to “deter-

mine whether [DACA recipients] qualify for work authorization.” App.

to Pet. for Cert. 101a. The benefits associated with DACA flow from a

separate regulation. See 8 CFR §1.3(a)(4)(vi); see also 42 CFR

§417.422(h) (cross-referencing 8 CFR §1.3). Thus, DHS could have ad-

dressed the Attorney General’s determination that such benefits were

impermissible under the INA by amending 8 CFR §1.3 to exclude DACA

recipients from those benefits without rescinding the DACA Memoran-

dum and the forbearance policy it established. But Duke’s rescission

memo shows no cognizance of this possibility.

Cite as: 591 U. S. ____ (2020) 23

Opinion of the Court

two. Ibid. According to the Government, “It was not arbi-

trary and capricious for DHS to view deferred action and its

collateral benefits as importantly linked.” Ibid. Perhaps.

But that response misses the point. The fact that there may

be a valid reason not to separate deferred action from ben-

efits does not establish that DHS considered that option or

that such consideration was unnecessary.

The lead dissent acknowledges that forbearance and ben-

efits are legally distinct and can be decoupled. Post, at 21–

22, n. 14 (opinion of THOMAS, J). It contends, however, that

we should not “dissect” agency action “piece by piece.” Post,

at 21. The dissent instead rests on the Attorney General’s

legal determination—which considered only benefits—“to

supply the ‘reasoned analysis’ ” to support rescission of both

benefits and forbearance. Post, at 22 (quoting State Farm,

463 U. S., at 42). But State Farm teaches that when an

agency rescinds a prior policy its reasoned analysis must

consider the “alternative[s]” that are “within the ambit of

the existing [policy].” Id., at 51. Here forbearance was not

simply “within the ambit of the existing [policy],” it was the

centerpiece of the policy: DACA, after all, stands for “De-

ferred Action for Childhood Arrivals.” App. to Pet. for Cert.

111a (emphasis added). But the rescission memorandum

contains no discussion of forbearance or the option of retain-

ing forbearance without benefits. Duke “entirely failed to

consider [that] important aspect of the problem.” State

Farm, 463 U. S., at 43.

That omission alone renders Acting Secretary Duke’s de-

cision arbitrary and capricious. But it is not the only defect.

Duke also failed to address whether there was “legitimate

reliance” on the DACA Memorandum. Smiley v. Citibank

(South Dakota), N. A., 517 U. S. 735, 742 (1996). When an

agency changes course, as DHS did here, it must “be cogni-

zant that longstanding policies may have ‘engendered seri-

ous reliance interests that must be taken into account.’ ”

Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___ (2016)

24 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

(slip op., at 9) (quoting Fox Television, 556 U. S., at 515). “It

would be arbitrary and capricious to ignore such matters.”

Id., at 515. Yet that is what the Duke Memorandum did.

For its part, the Government does not contend that Duke

considered potential reliance interests; it counters that she

did not need to. In the Government’s view, shared by the

lead dissent, DACA recipients have no “legally cognizable

reliance interests” because the DACA Memorandum stated

that the program “conferred no substantive rights” and pro-

vided benefits only in two-year increments. Reply Brief 16–

17; App. to Pet. for Cert. 125a. See also post, at 23–24 (opin-

ion of THOMAS, J). But neither the Government nor the lead

dissent cites any legal authority establishing that such fea-

tures automatically preclude reliance interests, and we are

not aware of any. These disclaimers are surely pertinent in

considering the strength of any reliance interests, but that

consideration must be undertaken by the agency in the first

instance, subject to normal APA review. There was no such

consideration in the Duke Memorandum.

Respondents and their amici assert that there was much

for DHS to consider. They stress that, since 2012, DACA

recipients have “enrolled in degree programs, embarked on

careers, started businesses, purchased homes, and even

married and had children, all in reliance” on the DACA pro-

gram. Brief for Respondent Regents of Univ. of California

et al. in No. 18–587, p. 41 (Brief for Regents). The conse-

quences of the rescission, respondents emphasize, would

“radiate outward” to DACA recipients’ families, including

their 200,000 U. S.-citizen children, to the schools where

DACA recipients study and teach, and to the employers who

have invested time and money in training them. See id., at

41–42; Brief for Respondent State of New York et al. in No.

18–589, p. 42 (Brief for New York). See also Brief for 143

Businesses as Amici Curiae 17 (estimating that hiring and

training replacements would cost employers $6.3 billion).

Cite as: 591 U. S. ____ (2020) 25

Opinion of the Court

In addition, excluding DACA recipients from the lawful la-

bor force may, they tell us, result in the loss of $215 billion

in economic activity and an associated $60 billion in federal

tax revenue over the next ten years. Brief for Regents 6.

Meanwhile, States and local governments could lose $1.25

billion in tax revenue each year. Ibid.

These are certainly noteworthy concerns, but they are not

necessarily dispositive. To the Government and lead dis-

sent’s point, DHS could respond that reliance on forbear-

ance and benefits was unjustified in light of the express lim-

itations in the DACA Memorandum. Or it might conclude

that reliance interests in benefits that it views as unlawful

are entitled to no or diminished weight. And, even if DHS

ultimately concludes that the reliance interests rank as se-

rious, they are but one factor to consider. DHS may deter-

mine, in the particular context before it, that other interests

and policy concerns outweigh any reliance interests. Mak-

ing that difficult decision was the agency’s job, but the

agency failed to do it.

DHS has considerable flexibility in carrying out its re-

sponsibility. The wind-down here is a good example of the

kind of options available. Acting Secretary Duke author-

ized DHS to process two-year renewals for those DACA re-

cipients whose benefits were set to expire within six

months. But Duke’s consideration was solely for the pur-

pose of assisting the agency in dealing with “administrative

complexities.” App. to Pet. for Cert. 116a–118a. She should

have considered whether she had similar flexibility in ad-

dressing any reliance interests of DACA recipients. The

lead dissent contends that accommodating such interests

would be “another exercise of unlawful power,” post, at 23

(opinion of THOMAS, J.), but the Government does not make

that argument and DHS has already extended benefits for

purposes other than reliance, following consultation with

the Office of the Attorney General. App. to Pet. for Cert.

116a.

26 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Had Duke considered reliance interests, she might, for

example, have considered a broader renewal period based

on the need for DACA recipients to reorder their affairs. Al-

ternatively, Duke might have considered more accommo-

dating termination dates for recipients caught in the mid-

dle of a time-bounded commitment, to allow them to, say,

graduate from their course of study, complete their military

service, or finish a medical treatment regimen. Or she

might have instructed immigration officials to give salient

weight to any reliance interests engendered by DACA when

exercising individualized enforcement discretion.

To be clear, DHS was not required to do any of this or to

“consider all policy alternatives in reaching [its] decision.”

State Farm, 463 U. S., at 51. Agencies are not compelled to

explore “every alternative device and thought conceivable

by the mind of man.” Vermont Yankee Nuclear Power Corp.

v. Natural Resources Defense Council, Inc., 435 U. S. 519,

551 (1978). But, because DHS was “not writing on a blank

slate,” post, at 22, n. 14 (opinion of THOMAS, J.), it was re-

quired to assess whether there were reliance interests, de-

termine whether they were significant, and weigh any such

interests against competing policy concerns.

The lead dissent sees all the foregoing differently. In its

view, DACA is illegal, so any actions under DACA are them-

selves illegal. Such actions, it argues, must cease immedi-

ately and the APA should not be construed to impede that

result. See post, at 19–23 (opinion of THOMAS, J.).

The dissent is correct that DACA was rescinded because

of the Attorney General’s illegality determination. See

ante, at 20. But nothing about that determination fore-

closed or even addressed the options of retaining forbear-

ance or accommodating particular reliance interests. Act-

ing Secretary Duke should have considered those matters

but did not. That failure was arbitrary and capricious in

violation of the APA.

Cite as: 591 U. S. ____ (2020) 27

Opinion

Opinion of of the Court

ROBERTS , C. J.

IV

Lastly, we turn to respondents’ claim that the rescis-

sion violates the equal protection guarantee of the Fifth

Amendment.

The parties dispute the proper framing of this claim. The

Government contends that the allegation that the Execu-

tive, motivated by animus, ended a program that dispropor-

tionately benefits certain ethnic groups is a selective en-

forcement claim. Such a claim, the Government asserts,

is barred by our decision in Reno v. American-Arab Anti-

Discrimination Committee. See 525 U. S., at 488 (holding

that “an alien unlawfully in this country has no constitu-

tional right to assert selective enforcement as a defense

against his deportation”). Respondents counter that their

claim falls outside the scope of that precedent because they

are not challenging individual enforcement proceedings.

We need not resolve this debate because, even if the claim

is cognizable, the allegations here are insufficient.

To plead animus, a plaintiff must raise a plausible infer-

ence that an “invidious discriminatory purpose was a moti-

vating factor” in the relevant decision. Arlington Heights v.

Metropolitan Housing Development Corp., 429 U. S. 252,

266 (1977). Possible evidence includes disparate impact on

a particular group, “[d]epartures from the normal proce-

dural sequence,” and “contemporary statements by mem-

bers of the decisionmaking body.” Id., at 266–268. Track-

ing these factors, respondents allege that animus is

evidenced by (1) the disparate impact of the rescission on

Latinos from Mexico, who represent 78% of DACA recipi-

ents; (2) the unusual history behind the rescission; and

(3) pre- and post-election statements by President Trump.

Brief for New York 54–55.

None of these points, either singly or in concert, estab-

lishes a plausible equal protection claim. First, because

Latinos make up a large share of the unauthorized alien

population, one would expect them to make up an outsized

28 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion

Opinion of of the Court

ROBERTS , C. J.

share of recipients of any cross-cutting immigration relief

program. See B. Baker, DHS, Office of Immigration Statis-

tics, Population Estimates, Illegal Alien Population

Residing in the United States: January 2015, Table 2 (Dec.

2018), https://www.dhs.gov/sites/default/files/publications/

18_1214_PLCY_pops-est-report.pdf. Were this fact suffi-

cient to state a claim, virtually any generally applicable im-

migration policy could be challenged on equal protection

grounds.

Second, there is nothing irregular about the history lead-

ing up to the September 2017 rescission. The lower courts

concluded that “DACA received reaffirmation by [DHS] as

recently as three months before the rescission,” 908 F. 3d,

at 519 (quoting 298 F. Supp. 3d, at 1315), referring to the

June 2017 DAPA rescission memo, which stated that DACA

would “remain in effect,” App. 870. But this reasoning con-

fuses abstention with reaffirmation. The DAPA memo did

not address the merits of the DACA policy or its legality.

Thus, when the Attorney General later determined that

DACA shared DAPA’s legal defects, DHS’s decision to

reevaluate DACA was not a “strange about-face.” 908 F. 3d,

at 519. It was a natural response to a newly identified

problem.

Finally, the cited statements are unilluminating. The

relevant actors were most directly Acting Secretary Duke

and the Attorney General. As the Batalla Vidal court

acknowledged, respondents did not “identif[y] statements

by [either] that would give rise to an inference of discrimi-

natory motive.” 291 F. Supp. 3d, at 278. Instead, respond-

ents contend that President Trump made critical state-

ments about Latinos that evince discriminatory intent.

But, even as interpreted by respondents, these state-

ments—remote in time and made in unrelated contexts—

do not qualify as “contemporary statements” probative of

the decision at issue. Arlington Heights, 429 U. S., at 268.

Thus, like respondents’ other points, the statements fail to

Cite as: 591 U. S. ____ (2020) 29

Opinion of the Court

raise a plausible inference that the rescission was moti-

vated by animus.

* * *

We do not decide whether DACA or its rescission are

sound policies. “The wisdom” of those decisions “is none of

our concern.” Chenery II, 332 U. S., at 207. We address

only whether the agency complied with the procedural re-

quirement that it provide a reasoned explanation for its ac-

tion. Here the agency failed to consider the conspicuous is-

sues of whether to retain forbearance and what if anything

to do about the hardship to DACA recipients. That dual

failure raises doubts about whether the agency appreciated

the scope of its discretion or exercised that discretion in a

reasonable manner. The appropriate recourse is therefore

to remand to DHS so that it may consider the problem

anew.

The judgment in NAACP, No. 18–588, is affirmed.7 The

judgment in Regents, No. 18–587, is vacated in part and re-

versed in part. And in Batalla Vidal, No. 18–589, the Feb-

ruary 13, 2018 order granting respondents’ motion for a

preliminary injunction is vacated, the November 9, 2017 or-

der partially denying the Government’s motion to dismiss

is affirmed in part, and the March 29, 2018 order partially

denying the balance of the Government’s motion to dismiss

is reversed in part. All three cases are remanded for further

proceedings consistent with this opinion.

It is so ordered.

——————

7 Our affirmance of the NAACP order vacating the rescission makes it

unnecessary to examine the propriety of the nationwide scope of the in-

junctions issued by the District Courts in Regents and Batalla Vidal.

Cite as: 591 U. S. ____ (2020) 1

SOpinion , J.,

of S

OTOMAYOR concurring

OTOMAYOR , J.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 18–587, 18–588, and 18–589

_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587 v.

REGENTS OF THE UNIVERSITY OF

CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588 v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589 v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[June 18, 2020]

JUSTICE SOTOMAYOR, concurring in part, concurring in

the judgment in part, and dissenting in part.

2 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of SOTOMAYOR, J.

The majority rightly holds that the Department of Home-

land Security (DHS) violated the Administrative Procedure

Act in rescinding the Deferred Action for Childhood Arri-

vals (DACA) program. But the Court forecloses any chal-

lenge to the rescission under the Equal Protection Clause.

I believe that determination is unwarranted on the existing

record and premature at this stage of the litigation. I would

instead permit respondents to develop their equal protec-

tion claims on remand.

Respondents’ equal protection challenges come to us in a

preliminary posture. All that respondents needed to do at

this stage of the litigation was state sufficient facts that

would “allo[w a] court to draw the reasonable inference that

[a] defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U. S. 662, 678 (2009). The three courts to eval-

uate respondents’ pleadings below held that they cleared

this modest threshold. 908 F. 3d 476, 518–520 (CA9 2018)

(affirming the District Court’s denial of the Government’s

motion to dismiss); see also Batalla Vidal v. Nielsen, 291 F.

Supp. 3d 260, 274 (EDNY 2018).

I too would permit respondents’ claims to proceed on re-

mand. The complaints each set forth particularized facts

that plausibly allege discriminatory animus. The plurality

disagrees, reasoning that “[n]one of these points, either sin-

gly or in concert, establishes a plausible equal protection

claim.” Ante, at 27. But it reaches that conclusion by dis-

counting some allegations altogether and by narrowly view-

ing the rest.

First, the plurality dismisses the statements that Presi-

dent Trump made both before and after he assumed office.

The Batalla Vidal complaints catalog then-candidate

Trump’s declarations that Mexican immigrants are “people

that have lots of problems,” “the bad ones,” and “criminals,

drug dealers, [and] rapists.” 291 F. Supp. 3d, at 276 (inter-

nal quotation marks omitted). The Regents complaints ad-

Cite as: 591 U. S. ____ (2020) 3

Opinion of SOTOMAYOR, J.

ditionally quote President Trump’s 2017 statement compar-

ing undocumented immigrants to “animals” responsible for

“the drugs, the gangs, the cartels, the crisis of smuggling

and trafficking, [and] MS13.” 298 F. Supp. 3d 1304, 1314

(ND Cal. 2018) (internal quotation marks omitted). The

plurality brushes these aside as “unilluminating,” “remote

in time,” and having been “made in unrelated contexts.”

Ante, at 28.

But “nothing in our precedent supports [the] blinkered

approach” of disregarding any of the campaign statements

as remote in time from later-enacted policies. Trump v. Ha-

waii, 585 U. S. ___, ___, n. 3 (2018) (SOTOMAYOR, J., dis-

senting) (slip op., at 11, n. 3). Nor did any of the statements

arise in unrelated contexts. They bear on unlawful migra-

tion from Mexico—a keystone of President Trump’s cam-

paign and a policy priority of his administration—and, ac-

cording to respondents, were an animating force behind the

rescission of DACA. Cf. ibid. (noting that Presidential Proc-

lamation No. 9645, 82 Fed. Reg. 45161 (2017), which barred

entry of individuals from several Muslim-majority coun-

tries, was an outgrowth of the President’s campaign state-

ments about Muslims). Taken together, “the words of the

President” help to “create the strong perception” that the

rescission decision was “contaminated by impermissible

discriminatory animus.” 585 U. S., at ___ (opinion of

SOTOMAYOR, J.) (slip op., at 13). This perception provides

respondents with grounds to litigate their equal protection

claims further.

Next, the plurality minimizes the disproportionate im-

pact of the rescission decision on Latinos after considering

this point in isolation. Ante, at 28 (“Were this fact sufficient

to state a claim, virtually any generally applicable immi-

gration policy could be challenged on equal protection

grounds”). But the impact of the policy decision must be

viewed in the context of the President’s public statements

on and off the campaign trail. At the motion-to-dismiss

4 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of SOTOMAYOR, J.

stage, I would not so readily dismiss the allegation that an

executive decision disproportionately harms the same ra-

cial group that the President branded as less desirable mere

months earlier.

Finally, the plurality finds nothing untoward in the “spe-

cific sequence of events leading up to the challenged deci-

sion.” Arlington Heights v. Metropolitan Housing Develop-

ment Corp., 429 U. S. 252, 267 (1977). I disagree. As late

as June 2017, DHS insisted it remained committed to

DACA, even while rescinding a related program, the De-

ferred Action for Parents of Americans and Lawful Perma-

nent Residents. App. 718–720. But a mere three months

later, DHS terminated DACA without, as the plurality

acknowledges, considering important aspects of the termi-

nation. The abrupt change in position plausibly suggests

that something other than questions about the legality of

DACA motivated the rescission decision. Accordingly, it

raises the possibility of a “significant mismatch between the

decision . . . made and the rationale . . . provided.” Depart-

ment of Commerce v. New York, 588 U. S. ___, ___ (2019)

(slip op., at 26). Only by bypassing context does the plural-

ity conclude otherwise.

* * *

The facts in respondents’ complaints create more than a

“sheer possibility that a defendant has acted unlawfully.”

Iqbal, 556 U. S., at 678. Whether they ultimately amount

to actionable discrimination should be determined only af-

ter factual development on remand. Because the Court

prematurely disposes of respondents’ equal protection

claims by overlooking the strength of their complaints, I

join all but Part IV of the opinion and do not concur in the

corresponding part of the judgment.

Cite as: 591 U. S. ____ (2020) 1

THOMAS, of

Opinion J.,Tdissenting

HOMAS, J.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 18–587, 18–588, and 18–589

_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587 v.

REGENTS OF THE UNIVERSITY OF

CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588 v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589 v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[June 18, 2020]

JUSTICE THOMAS, with whom JUSTICE ALITO and

JUSTICE GORSUCH join, concurring in the judgment in part

and dissenting in part.

2 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

Between 2001 and 2011, Congress considered over two

dozen bills that would have granted lawful status to mil-

lions of aliens who were illegally brought to this country as

children. Each of those legislative efforts failed. In the

wake of this impasse, the Department of Homeland Secu-

rity (DHS) under President Barack Obama took matters

into its own hands. Without any purported delegation of

authority from Congress and without undertaking a rule-

making, DHS unilaterally created a program known as

Deferred Action for Childhood Arrivals (DACA). The three-

page DACA memorandum made it possible for approxi-

mately 1.7 million illegal aliens to qualify for temporary

lawful presence and certain federal and state benefits.

When President Donald Trump took office in 2017, his Act-

ing Secretary of Homeland Security, acting through yet an-

other memorandum, rescinded the DACA memorandum.

To state it plainly, the Trump administration rescinded

DACA the same way that the Obama administration cre-

ated it: unilaterally, and through a mere memorandum.

Today the majority makes the mystifying determination

that this rescission of DACA was unlawful. In reaching

that conclusion, the majority acts as though it is engaging

in the routine application of standard principles of admin-

istrative law. On the contrary, this is anything but a stand-

ard administrative law case.

DHS created DACA during the Obama administration

without any statutory authorization and without going

through the requisite rulemaking process. As a result, the

program was unlawful from its inception. The majority

does not even attempt to explain why a court has the au-

thority to scrutinize an agency’s policy reasons for rescind-

ing an unlawful program under the arbitrary and capri-

cious microscope. The decision to countermand an unlawful

agency action is clearly reasonable. So long as the agency’s

determination of illegality is sound, our review should be at

an end.

Cite as: 591 U. S. ____ (2020) 3

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

Today’s decision must be recognized for what it is: an ef-

fort to avoid a politically controversial but legally correct

decision. The Court could have made clear that the solution

respondents seek must come from the Legislative Branch.

Instead, the majority has decided to prolong DHS’ initial

overreach by providing a stopgap measure of its own. In

doing so, it has given the green light for future political bat-

tles to be fought in this Court rather than where they right-

fully belong—the political branches. Such timidity forsakes

the Court’s duty to apply the law according to neutral prin-

ciples, and the ripple effects of the majority’s error will be

felt throughout our system of self-government.

Perhaps even more unfortunately, the majority’s holding

creates perverse incentives, particularly for outgoing ad-

ministrations. Under the auspices of today’s decision, ad-

ministrations can bind their successors by unlawfully

adopting significant legal changes through Executive

Branch agency memoranda. Even if the agency lacked au-

thority to effectuate the changes, the changes cannot be un-

done by the same agency in a successor administration un-

less the successor provides sufficient policy justifications to

the satisfaction of this Court. In other words, the majority

erroneously holds that the agency is not only permitted, but

required, to continue administering unlawful programs

that it inherited from a previous administration. I respect-

fully dissent in part.1

I

A

In 2012, after more than two dozen attempts by Congress

to grant lawful status to aliens who were brought to this

country as children,2 the then-Secretary of Homeland Secu-

rity Janet Napolitano announced, by memorandum, a new

——————

1 I concur in the judgment insofar as the majority rejects respondents’

equal protection claim.

2 See Immigrant Children’s Educational Advancement and Dropout

4 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

“prosecutorial discretion” policy known as DACA. App. to

Pet. for Cert. in No. 18–587, p. 97a. The memorandum di-

rected immigration enforcement officers not to remove “cer-

tain young people who were brought to this country as chil-

dren” that met delineated criteria. Id., at 97a–98a. In the

Secretary’s view, the program was consistent with “the

framework of the existing law.” Id., at 101a.

DACA granted a renewable 2-year period of “deferred ac-

tion” that made approximately 1.7 million otherwise remov-

able aliens eligible to remain in this country temporarily.3

By granting deferred action, the memorandum also made

recipients eligible for certain state and federal benefits, in-

cluding Medicare and Social Security. See 8 U. S. C.

§§1611(b)(2)–(4); 8 CFR §1.3(a)(4)(vi) (2020); 45 CFR

§152.2(4)(vi) (2019). In addition, deferred action enabled

the recipients to seek work authorization. 8 U. S. C.

——————

Prevention Act of 2001, H. R. 1582, 107th Cong., 1st Sess.; Student Ad-

justment Act of 2001, H. R. 1918, 107th Cong., 1st Sess.; DREAM Act, S.

1291, 107th Cong., 1st Sess. (2001); DREAM Act, S. 1545, 108th Cong.,

1st Sess. (2003); Student Adjustment Act of 2003, H. R. 1684, 108th

Cong., 1st Sess.; DREAM Act, S. 2863, 108th Cong., 2d Sess., Tit. XVIII

(2003); DREAM Act of 2005, S. 2075, 109th Cong., 1st Sess.; Comprehen-

sive Immigration Reform Act of 2006, S. 2611, 109th Cong., 2d Sess., Tit.

VI, Subtitle C; American Dream Act, H. R. 5131, 109th Cong., 2d Sess.

(2006); DREAM Act of 2007, S. 774, 110th Cong., 1st Sess.; DREAM Act

of 2007, S. 2205, 110th Cong., 1st Sess.; STRIVE Act of 2007, H. R. 1645,

110th Cong., 1st Sess., Tit. VI, Subtitle B; Comprehensive Immigration

Reform Act of 2007, S. 1348, 110th Cong., 1st Sess., Tit. VI, Subtitle C;

DREAM Act of 2009, S. 729, 111th Cong., 1st Sess.; American Dream

Act, H. R. 1751, 111th Cong., 1st Sess.; Comprehensive Immigration Re-

form Act of 2010, S. 3932, 111th Cong., 2d Sess., Tit. V, Subtitle D;

DREAM Act of 2010, S. 3827, 111th Cong., 2d Sess.; DREAM Act of 2010,

S. 3962, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3963, 111th Cong.,

2d Sess.; DREAM Act of 2010, S. 3992, 111th Cong., 2d Sess.; DREAM

Act of 2010, H. R. 6497, 111th Cong., 2d Sess.; DREAM Act of 2011, S.

952, 112th Cong., 1st Sess.

3 See J. Passel & M. Lopez, Pew Research Center, Up to 1.7 Million

Unauthorized Immigrant Youth May Benefit From New Deportation

Rules (Aug. 14, 2012).

Cite as: 591 U. S. ____ (2020) 5

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

§1324a(h)(3)(B); 8 CFR §274a.12(c)(14). Despite these

changes, the memorandum contradictorily claimed that it

“confer[red] no substantive right [or] immigration status,”

because “[o]nly the Congress, acting through its legislative

authority, can confer these rights.” App. to Pet. for Cert. in

No. 18–587, at 101a.

In 2014, then-Secretary of Homeland Security Jeh John-

son broadened the deferred-action program in yet another

brief memorandum. This 2014 memorandum expanded

DACA eligibility by extending the deferred-action period to

three years and by relaxing other criteria. It also imple-

mented a related program, known as Deferred Action for

Parents of Americans and Lawful Permanent Residents

(DAPA). DAPA allowed unlawfully present parents to ob-

tain deferred action derivatively through their children who

were either citizens or lawful permanent residents. Ap-

proximately 4.3 million aliens qualified for DAPA and, as

with DACA, these individuals would have become eligible

for certain federal and state benefits upon the approval of

their DAPA applications. See Texas v. United States, 809

F. 3d 134, 181 (CA5 2015). Nevertheless, the 2014 memo-

randum repeated the incongruous assertion that these pro-

grams “d[id] not confer any form of legal status in this coun-

try” and added that deferred action “may be terminated at

any time at the agency’s discretion.” App. to Pet. for Cert.

in No. 18–587, at 104a.

B

Twenty-six States filed suit to enjoin the implementation

of these new programs, DAPA and “expanded DACA,”

maintaining that they violated the Constitution, the Ad-

ministrative Procedure Act (APA), and the Immigration

and Naturalization Act (INA). The States contended that,

because the 2014 memorandum allowed aliens to receive

deferred action and other benefits, it amounted to a legisla-

tive rule that had to comply with the APA’s notice and

6 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

comment procedures. The States also argued that DHS’ de-

cision to recategorize an entire class of aliens from “unlaw-

fully present” to “lawfully present” exceeded its statutory

authority under the federal immigration laws. According

to the States, these defects rendered the 2014 memoran-

dum arbitrary, capricious, or otherwise not in accordance

with law.

The District Court preliminarily enjoined DAPA and ex-

panded DACA. The Fifth Circuit affirmed, rejecting DHS’

claim that the programs were an exercise of prosecutorial

discretion. Texas, 809 F. 3d, at 167, 188. The court con-

cluded that the States were likely to succeed on their claim

that the 2014 memorandum was a legislative rule that had

to be adopted through notice and comment rulemaking. Id.,

at 171–178. The court further concluded that the 2014

memorandum was “substantively contrary to law” because

the INA did not grant DHS the statutory authority to im-

plement either program. Id., at 170, 178–186.

This Court affirmed the Fifth Circuit’s judgment by an

equally divided vote. United States v. Texas, 579 U. S. ___

(2016) (per curiam).

C

The 2014 memorandum was rescinded on June 15, 2017,

before taking effect. Shortly after that rescission, several

of the plaintiff States sent a letter to then-Attorney General

Jefferson Sessions III. They contended that the 2012 DACA

memorandum was also legally defective because, “just like

DAPA, DACA unilaterally confers eligibility for . . . lawful

presence without any statutory authorization from Con-

gress.” App. 873. The States wrote that they would amend

their complaint to challenge DACA if the administration

did not rescind the 2012 memorandum creating DACA by

September 5, 2017.

On September 4, then-Attorney General Sessions wrote

to then-Acting Secretary of Homeland Security Elaine

Cite as: 591 U. S. ____ (2020) 7

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

Duke, advising her to rescind DACA. Sessions stated that,

in his legal opinion, DACA took effect “through executive

action, without proper statutory authority and with no es-

tablished end-date, after Congress’ repeated rejection of

proposed legislation that would have accomplished a simi-

lar result. Such an open-ended circumvention of immigra-

tion laws was an unconstitutional exercise of authority by

the Executive Branch.” Id., at 877. The letter also stated

that DACA was infected with the “same legal . . . defects

that the courts recognized as to DAPA,” id., at 878, and thus

DACA would likely be enjoined as well.

Then-Acting Secretary Duke rescinded DACA the next

day, also through a memorandum. Her memorandum be-

gan by noting that DACA “purported to use deferred action

. . . to confer certain benefits to illegal aliens that Congress

had not otherwise acted to provide by law.” App. to Pet. for

Cert. in No. 18–587, at 112a. It described the history of the

Fifth Circuit litigation, noting that the court had concluded

that DAPA “conflicted with the discretion authorized by

Congress” because “the [INA] flatly does not permit the

reclassification of millions of illegal aliens as lawfully pre-

sent.” Id., at 114a (internal quotation marks omitted). Fi-

nally, the memorandum accepted then-Attorney General

Sessions’ legal determination that DACA was unlawful for

the same reasons as DAPA. See §1103(a)(1). In light of the

legal conclusions reached by the Fifth Circuit and the At-

torney General, then-Acting Secretary Duke set forth the

procedures for winding down DACA.

These three cases soon followed. In each, respondents

claimed, among other things, that DACA’s rescission was

arbitrary and capricious under the APA. Two District

Courts granted a preliminary nationwide injunction, while

the third vacated the rescission.

II

“ ‘[A]n agency literally has no power to act . . . unless and

8 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

until Congress confers power upon it.’ ” Arlington v. FCC,

569 U. S. 290, 317 (2013) (ROBERTS, C. J., dissenting) (quot-

ing Louisiana Pub. Serv. Comm’n v. FCC, 476 U. S. 355,

374 (1986)). When an agency exercises power beyond the

bounds of its authority, it acts unlawfully. See, e.g., SAS

Institute Inc. v. Iancu, 584 U. S. ___, ___, n. (2018) (slip op.,

at 11, n.). The 2012 memorandum creating DACA provides

a poignant illustration of ultra vires agency action.

DACA alters how the immigration laws apply to a certain

class of aliens. “DACA [recipients] primarily entered the

country either by overstaying a visa or by entering without

inspection, and the INA instructs that aliens in both classes

are removable.” Texas v. United States, 328 F. Supp. 3d

662, 713 (SD Tex. 2018) (footnote omitted). But DACA

granted its recipients deferred action, i.e., a decision to “de-

cline to institute [removal] proceedings, terminate [re-

moval] proceedings, or decline to institute a final order of

[removal].” Reno v. American-Arab Anti-Discrimination

Comm., 525 U. S. 471, 484 (1999) (internal quotation marks

omitted). Under other regulations, recipients of deferred

action are deemed lawfully present for purposes of certain

federal benefits. See supra, at 4. Thus, DACA in effect cre-

ated a new exception to the statutory provisions governing

removability and, in the process, conferred lawful presence

on an entire class of aliens.

To lawfully implement such changes, DHS needed a

grant of authority from Congress to either reclassify remov-

able DACA recipients as lawfully present, or to exempt the

entire class of aliens covered by DACA from statutory re-

moval procedures. No party disputes that the immigration

statutes lack an express delegation to accomplish either re-

sult. And, an examination of the highly reticulated immi-

gration regime makes clear that DHS has no implicit dis-

cretion to create new classes of lawful presence or to grant

relief from removal out of whole cloth. Accordingly, DACA

is substantively unlawful.

Cite as: 591 U. S. ____ (2020) 9

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

This conclusion should begin and end our review. The

decision to rescind an unlawful agency action is per se law-

ful. No additional policy justifications or considerations are

necessary. And, the majority’s contrary holding—that an

agency is not only permitted, but required, to continue an

ultra vires action—has no basis in law.

A

Congress has not authorized DHS to reclassify an entire

class of removable aliens as lawfully present or to categori-

cally exempt aliens from statutory removal provisions.

1

I begin with lawful presence. As just stated, nothing in

the federal immigration laws expressly delegates to DHS

the unfettered discretion to create new categories of law-

fully present aliens. And, there is no basis for concluding

that Congress implicitly delegated to DHS the power to re-

classify categories of aliens as lawfully present. The immi-

gration statutes provide numerous ways to obtain lawful

presence, both temporary and permanent. The highly de-

tailed nature of these provisions indicates that Congress

has exhaustively provided for all of the ways that it thought

lawful presence should be obtainable, leaving no discretion

to DHS to add new pathways.

For example, federal immigration laws provide over 60

temporary nonimmigrant visa options, including visas for

ambassadors, full-time students and their spouses and chil-

dren, those engaged to marry a United States citizen within

90 days of arrival, athletes and performers, and aliens with

specialized knowledge related to their employers. See

§§1101(a)(15)(A)–(V), 1184; 8 CFR §214.1; see also Congres-

sional Research Service, J. Wilson, Nonimmigrant and Im-

migrant Visa Categories: Data Brief 1–6 (2019) (Table 1).

In addition, the statutes permit the Attorney General to

grant temporary “parole” into the United States “for urgent

10 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

humanitarian reasons or [a] significant public benefit,” 8

U. S. C. §1182(d)(5)(A); provide for temporary protected

status when the Attorney General finds that removal to a

country with an ongoing armed conflict “would pose a seri-

ous threat to [an alien’s] personal safety,” §1254a(b)(1)(A);

and allow the Secretary of Homeland Security (in consulta-

tion with the Secretary of State) to waive visa requirements

for certain aliens for up to 90 days, §§1187(a)–(d).

The immigration laws are equally complex and detailed

when it comes to obtaining lawful permanent residence.

Congress has expressly specified numerous avenues for

obtaining an immigrant visa, which aliens may then use

to become lawful permanent residents. §§1201, 1255(a).

Among other categories, immigrant visas are available to

specified family-sponsored aliens, aliens with advanced de-

grees or exceptional abilities, certain types of skilled and

unskilled workers, “special immigrants,” and those enter-

ing the country to “engag[e] in a new commercial enter-

prise.” §§1153(a)–(b), 1154; see also Congressional Re-

search Service, Nonimmigrant and Immigrant Visa

Categories, at 6–7 (Table 2). Refugees and asylees also may

receive lawful permanent residence under certain condi-

tions, §1159; 8 CFR §§209.1, 209.2.4 As with temporary

lawful presence, each avenue to lawful permanent resi-

dence status has its own set of rules and exceptions.5

As the Fifth Circuit held in the DAPA litigation, a conclu-

sion with which then-Attorney General Sessions agreed,

“specific and detailed provisions[ of] the INA expressly and

——————

4 The immigration statutes also provide for conditional lawful perma-

nent residence status. See §1186a(b)(1)(A)(i) (two years for spouses to

demonstrate that the marriage “was [not] entered into for the purpose of

procuring an alien’s admission as an immigrant”); §1186b (qualifying

business entrepreneurs).

5 For instance, Congress has carved out rules for aliens who served in

the Armed Forces, §§1438–1440, and alien spouses who have been sub-

ject to domestic abuse, §§1186a(c)(4)(C)–(D).

Cite as: 591 U. S. ____ (2020) 11

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

carefully provid[e] legal designations allowing defined clas-

ses of aliens to be lawfully present.” Texas, 809 F. 3d, at

179. In light of this elaborate statutory scheme, the lack of

any similar provision for DACA recipients convincingly es-

tablishes that Congress left DHS with no discretion to cre-

ate an additional class of aliens eligible for lawful presence.

Congress knows well how to provide broad discretion, and

it has provided open-ended delegations of authority in stat-

utes too numerous to name. But when it comes to lawful

presence, Congress did something strikingly different. In-

stead of enacting a statute with “broad general directives”

and leaving it to the agency to fill in the lion’s share of the

details, Mistretta v. United States, 488 U. S. 361, 372

(1989), Congress put in place intricate specifications gov-

erning eligibility for lawful presence. This comprehensive

scheme indicates that DHS has no discretion to supplement

or amend the statutory provisions in any manner, least of

all by memorandum. See FDA v. Brown & Williamson To-

bacco Corp., 529 U. S. 120, 125 (2000) (An agency “may not

exercise its authority in a manner that is inconsistent with

the administrative structure that Congress enacted” (inter-

nal quotation marks omitted)); see also ETSI Pipeline Pro-

ject v. Missouri, 484 U. S. 495, 509–510 (1988).

2

The relief that Congress has extended to removable al-

iens likewise confirms that DACA exceeds DHS’ delegated

authority. Through deferred action, DACA grants tempo-

rary relief to removable aliens on a programmatic scale.

See Texas, 328 F. Supp. 3d, at 714. But as with lawful pres-

ence, Congress did not expressly grant DHS the authority

to create categorical exceptions to the statute’s removal re-

quirements. And again, as with lawful presence, the intri-

cate level of detail in the federal immigration laws regard-

ing relief from removal indicates that DHS has no

discretionary authority to supplement that relief with an

12 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

entirely new programmatic exemption.

At the outset, Congress clearly knows how to provide for

classwide deferred action when it wishes to do so. On mul-

tiple occasions, Congress has used express language to

make certain classes of individuals eligible for deferred ac-

tion. See 8 U. S. C. §§1154(a)(1)(D)(i)(II), (IV) (certain indi-

viduals covered under the Violence Against Women Act are

“eligible for deferred action”); Victims of Trafficking and Vi-

olence Protection Act of 2000, 114 Stat. 1522 (“ ‘Any individ-

ual described in subclause (I) is eligible for deferred ac-

tion’ ”); Uniting and Strengthening America by Providing

Appropriate Tools Required to Intercept and Obstruct Ter-

rorism (USA PATRIOT ACT) Act of 2001, §423(b), 115 Stat.

361 (“Such spouse, child, son, or daughter may be eligible

for deferred action”); National Defense Authorization Act

for Fiscal Year 2004, §§1703(c)(1)(A), (2), 117 Stat. 1694–

1695 (“Such spouse or child shall be eligible for deferred ac-

tion”).6 Congress has failed to provide similar explicit pro-

visions for DACA recipients, and the immigration laws con-

tain no indication that DHS can, at will, create its own

categorical policies for deferred action.

Other provisions pertaining to relief from removal fur-

ther demonstrate that DHS lacked the delegated authority

——————

6 In the DAPA litigation, DHS noted that some deferred-action pro-

grams have been implemented by the Executive Branch without explicit

legislation. But “ ‘past practice does not, by itself, create [executive]

power.’ ” Medellín v. Texas, 552 U. S. 491, 532 (2008) (quoting Dames &

Moore v. Regan, 453 U. S. 654, 686 (1981)). If any of these programs had

been challenged, it would seem that they would be legally infirm for the

same reasons as DACA. Moreover, if DHS had the authority to create

new categories of aliens eligible for deferred action, then all of Congress’

deferred-action legislation was but a superfluous exercise. Duncan v.

Walker, 533 U. S. 167, 174 (2001). Finally, whereas some deferred-action

programs were followed by legislation, DACA has existed for eight years,

and Congress is no closer to a legislative solution than it was in 2012.

See, e.g., American Dream and Promise Act of 2019, H. R. 6, 116th Cong.,

1st Sess.

Cite as: 591 U. S. ____ (2020) 13

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

to create DACA. As with lawful presence, Congress has

provided a plethora of methods by which aliens may seek

relief from removal. For instance, both permanent and

temporary residents can seek cancellation of removal if

they meet certain residency requirements and have not

committed certain crimes. §§1229b(a)–(b). And certain

nonpermanent residents may have their status adjusted to

permanent residence during these proceedings.

§1229b(b)(2). Aliens can apply for asylum or withholding of

removal during removal proceedings unless they have com-

mitted certain crimes. §§1158, 1231(b)(3). Applicants for

certain nonimmigrant visas may be granted a stay of re-

moval until the visa application is adjudicated. §1227(d).

And, aliens may voluntarily depart rather than be subject

to an order of removal. §1229c.

In sum, like lawful presence, Congress has provided for

relief from removal in specific and complex ways. This nu-

anced detail indicates that Congress has provided the full

panoply of methods it thinks should be available for an al-

ien to seek relief from removal, leaving no discretion to DHS

to provide additional programmatic forms of relief.7

3

Finally, DHS could not appeal to general grants of au-

thority, such as the Secretary’s ability to “perform such

other acts as he deems necessary for carrying out his au-

thority under the provisions of this chapter,” §1103(a)(3), or

to “[e]stablis[h] national immigration enforcement policies

and priorities,” 6 U. S. C. §202(5). See also 8 U. S. C.

§1103(g)(2). Because we must interpret the statutes “as a

——————

7 It is uncontested that deferred action frequently occurs on a case-by-

case basis, often justified on the grounds that the agency lacks resources

to remove all removable aliens. Even assuming that these ad hoc exer-

cises of discretion are permissible, however, we have stated that “[a]n

agency confronting resource constraints may change its own conduct, but

it cannot change the law.” Utility Air Regulatory Group v. EPA, 573 U. S.

302, 327 (2014).

14 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

symmetrical and coherent regulatory scheme,” Gustafson v.

Alloyd Co., 513 U. S. 561, 569 (1995), these grants of au-

thority must be read alongside the express limits contained

within the statute. Basing the Secretary’s ability to com-

pletely overhaul immigration law on these general grants

of authority would eviscerate that deliberate statutory

scheme by “allow[ing the Secretary of DHS] to grant lawful

presence . . . to any illegal alien in the United States.”

Texas, 809 F. 3d, at 184. Not only is this “an untenable po-

sition in light of the INA’s intricate system,” ibid., but it

would also render many of those provisions wholly super-

fluous due to DHS’ authority to disregard them at will,

Duncan v. Walker, 533 U. S. 167, 174 (2001). And in addi-

tion to these fatal problems, adopting a broad interpreta-

tion of these general grants of authority would run afoul of

the presumption that “Congress . . . does not alter the fun-

damental details of a regulatory scheme in vague terms or

ancillary provisions.” Whitman v. American Trucking

Assns., Inc., 531 U. S. 457, 468 (2001). And it would also

conflict with the major questions doctrine, which is based

on the expectation that Congress speaks clearly when it del-

egates the power to make “decisions of vast economic and

political significance.” Utility Air Regulatory Group v. EPA,

573 U. S. 302, 324 (2014) (UARG) (internal quotation

marks omitted); see also Texas, 787 F. 3d, at 760–761.

Read together, the detailed statutory provisions govern-

ing temporary and lawful permanent resident status, relief

from removal, and classwide deferred-action programs lead

ineluctably to the conclusion that DACA is “inconsisten[t]

with the design and structure of the statute as a whole.”

University of Tex. Southwestern Medical Center v. Nassar,

570 U. S. 338, 353 (2013). As the District Court stated in

the DAPA litigation and as then-Attorney General Sessions

agreed, “[i]nstead of merely refusing to enforce the INA’s

removal laws against an individual, the DHS has enacted a

wide-reaching program that awards legal presence . . . to

Cite as: 591 U. S. ____ (2020) 15

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

individuals Congress has deemed deportable or removable.”

Texas v. United States, 86 F. Supp. 3d 591, 654 (SD Tex.

2015). The immigration statutes contain a level of granular

specificity that is exceedingly rare in the modern adminis-

trative state. It defies all logic and common sense to con-

clude that a statutory scheme detailed enough to provide

conditional lawful presence to groups as narrowly defined

as “alien entrepreneurs,” §1186b, is simultaneously capa-

cious enough for DHS to grant lawful presence to almost

two million illegal aliens with the stroke of a Cabinet secre-

tary’s pen.

B

Then-Attorney General Sessions concluded that the ini-

tial DACA program suffered from the “same legal . . . de-

fects” as DAPA and expanded DACA, finding that, like

those programs, DACA was implemented without statutory

authority. App. 877–878. Not only was this determination

correct, but it is also dispositive for purposes of our review.

“It is axiomatic that an administrative agency’s power . . .

is limited to the authority granted by Congress.” Bowen v.

Georgetown Univ. Hospital, 488 U. S. 204, 208 (1988). DHS

had no authority here to create DACA, and the unlawful-

ness of that program is a sufficient justification for its re-

scission.

The majority opts for a different path, all but ignoring

DACA’s substantive legal defect. See ante, at 18–19. On

the majority’s understanding of APA review, DHS was re-

quired to provide additional policy justifications in order to

rescind an action that it had no authority to take. This rule

“has no basis in our jurisprudence, and support for [it] is

conspicuously absent from the Court’s opinion.” Massachu-

setts v. EPA, 549 U. S. 497, 536 (2007) (ROBERTS, C. J., dis-

senting).

The lack of support for the majority’s position is hardly

16 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

surprising in light of our Constitution’s separation of pow-

ers. No court can compel Executive Branch officials to ex-

ceed their congressionally delegated powers by continuing

a program that was void ab initio. Cf. Clinton v. City of New

York, 524 U. S. 417 (1998); INS v. Chadha, 462 U. S. 919

(1983); see also EPA v. EME Homer City Generation, L. P.,

572 U. S. 489, 542, n. 5 (2014) (Scalia, J., dissenting); Public

Citizen v. Department of Justice, 491 U. S. 440, 487 (1989)

(Kennedy, J., concurring in judgment). In reviewing agency

action, our role is to ensure that Executive Branch officials

do not transgress the proper bounds of their authority, Ar-

lington, 569 U. S., at 327 (ROBERTS, C. J., dissenting), not

to perpetuate a decision to unlawfully wield power in direct

contravention of the enabling statute’s clear limits, see

UARG, 573 U. S., at 327–328; Barnhart v. Sigmon Coal Co.,

534 U. S. 438, 462 (2002).

Under our precedents, DHS can only exercise the author-

ity that Congress has chosen to delegate to it. See UARG,

573 U. S., at 327. In implementing DACA, DHS under the

Obama administration arrogated to itself power it was not

given by Congress. Thus, every action taken by DHS under

DACA is the unlawful exercise of power. Now, under the

Trump administration, DHS has provided the most compel-

ling reason to rescind DACA: The program was unlawful

and would force DHS to continue acting unlawfully if it car-

ried the program forward.

III

The majority’s demanding review of DHS’ decisionmak-

ing process is especially perverse given that the 2012 mem-

orandum flouted the APA’s procedural requirements—the

very requirements designed to prevent arbitrary deci-

sionmaking. Even if DHS were authorized to create DACA,

it could not do so without undertaking an administrative

rulemaking. The fact that DHS did not engage in this pro-

cess likely provides an independent basis for rescinding

Cite as: 591 U. S. ____ (2020) 17

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

DACA. But at the very least, this procedural defect com-

pounds the absurdity of the majority’s position in these

cases.

As described above, DACA fundamentally altered the im-

migration laws. It created a new category of aliens who, as

a class, became exempt from statutory removal procedures,

and it gave those aliens temporary lawful presence. Both

changes contravened statutory limits. DACA is thus what

is commonly called a substantive or legislative rule.8 As the

name implies, our precedents state that legislative rules

are those that “have the force and effect of law.” Chrysler

Corp. v. Brown, 441 U. S. 281, 295 (1979) (internal quota-

tion marks omitted).

Our precedents allow the vast majority of legislative

rules to proceed through so-called “informal” notice and

comment rulemaking. See United States v. Florida East

Coast R. Co., 410 U. S. 224, 237–238 (1973).9 But under our

precedents, an agency must engage in certain procedures

mandated by the APA before its rule carries legal force. Ki-

sor v. Wilkie, 588 U. S. ___, ___ (2019) (plurality opinion)

(slip op., at 23) (“[A] legislative rule, . . . to be valid[,] must

go through notice and comment”); id., at ___ (GORSUCH, J.,

concurring in judgment) (slip op., at 17) (same); Perez v.

Mortgage Bankers Assn., 575 U. S. 92, 96 (2015); cf. Azar v.

Allina Health Services, 587 U. S. ___, ___ (2019) (slip op., at

1) (same with respect to materially identical procedures un-

der the Medicare Act). These procedures specify that the

agency “shall” publish a notice of proposed rulemaking in

——————

8 The majority tacitly acknowledges as much, as it must. See ante, at

11–12. Otherwise, the majority would have to accept that DACA was

nothing more than a policy of prosecutorial discretion, which would make

its rescission unreviewable. See Heckler v. Chaney, 470 U. S. 821, 831

(1985).

9 As I have previously pointed out, “the APA actually contemplated a

much more formal process for most rulemaking.” Perez v. Mortgage

Bankers Assn., 575 U. S. 92, 128, n. 5 (2015) (opinion concurring in judg-

ment).

18 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

the Federal Register, justify the rule by reference to legal

authority, describe “the subjects and issues involved” in the

rule, and allow interested parties to submit comments. 5

U. S. C. §§553(b)–(c); see also Kisor, 588 U. S., at ___ (opin-

ion of GORSUCH, J.) (slip op., at 17). As we have recognized

recently, use of the word “shall” indicates that these proce-

dures impose mandatory obligations on the agency before it

can adopt a valid binding regulation. See Maine Commu-

nity Health Options v. United States, 590 U. S. ___, ___

(2020) (slip op., at 12). After undergoing notice and com-

ment, the agency then publishes the final rule, which must

“articulate a satisfactory explanation for [the] action in-

cluding a rational connection between the facts found and

the choice made.” Motor Vehicle Mfrs. Assn. of United

States, Inc. v. State Farm Mut. Automobile Ins. Co., 463

U. S. 29, 43 (1983) (internal quotation marks omitted).

Only after completing this process is the legislative rule a

valid law. See Kisor, 588 U. S., at ___ (opinion of GORSUCH,

J.) (slip op., at 17).10

Because DACA has the force and effect of law, DHS was

required to observe the procedures set out in the APA if it

wanted to promulgate a legislative rule. It is undisputed,

however, that DHS did not do so. It provided no oppor-

tunity for interested parties to submit comments regarding

the effect that the program’s dramatic and very significant

change in immigration law would have on various aspects

of society. It provided no discussion of economic considera-

tions or national security interests. Nor did it provide any

substantial policy justifications for treating young people

——————

10 The APA also provides certain exceptions from notice and comment

rulemaking. For example, an agency may promulgate a legally binding

rule without notice and comment if good cause exists to do so. 5 U. S. C.

§553(b)(B). This text would become a nullity if the agency could achieve

the same effect by simply dispensing with notice and comment proce-

dures altogether.

Cite as: 591 U. S. ____ (2020) 19

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

brought to this country differently from other classes of al-

iens who have lived in the country without incident for

many years. And, it did not invoke any law authorizing

DHS to create such a program beyond its inexplicable as-

sertion that DACA was consistent with existing law. Be-

cause DHS failed to engage in the statutorily mandated

process, DACA never gained status as a legally binding reg-

ulation that could impose duties or obligations on third par-

ties. See id., at ___ (plurality opinion) (slip op., at 23); id.,

at ___ (opinion of GORSUCH, J.) (slip op., at 17).

Given this state of affairs, it is unclear to me why DHS

needed to provide any explanation whatsoever when it de-

cided to rescind DACA. Nothing in the APA suggests that

DHS was required to spill any ink justifying the rescission

of an invalid legislative rule, let alone that it was required

to provide policy justifications beyond acknowledging that

the program was simply unlawful from the beginning. And,

it is well established that we do not remand for an agency

to correct its reasoning when it was required by law to take

or abstain from an action. See Morgan Stanley Capital

Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554

U. S. 527, 544–545 (2008). Here, remand would be futile,

because no amount of policy explanation could cure the fact

that DHS lacked statutory authority to enact DACA in the

first place.

Instead of recognizing this, the majority now requires the

rescinding Department to treat the invalid rule as though

it were legitimate. As just explained, such a requirement

is not supported by the APA.11 It is also absurd, as evi-

denced by its application to DACA in these cases. The ma-

jority insists that DHS was obligated to discuss its choices

regarding benefits and forbearance in great detail, even

——————

11 Thus, it is not that the APA “should not” be construed to support the

majority’s result, ante, at 26 (emphasis added), it is that the APA does

not and cannot support that result.

20 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

though no such detailed discussion accompanied DACA’s is-

suance. And, the majority also requires DHS to discuss re-

liance interests at length, even though deferred action tra-

ditionally does not take reliance interests into account and

DHS was not forced to explain its treatment of reliance in-

terests in the first instance by going through notice and

comment. See infra, at 23–24. The majority’s demand for

such an explanation here simply makes little sense.

At bottom, of course, none of this matters, because DHS

did provide a sufficient explanation for its action. DHS’

statement that DACA was ultra vires was more than suffi-

cient to justify its rescission.12 By requiring more, the ma-

jority has distorted the APA review process beyond recogni-

tion, further burdening all future attempts to rescind

unlawful programs. Plaintiffs frequently bring successful

challenges to agency actions by arguing that the agency has

impermissibly dressed up a legislative rule as a policy state-

ment and must comply with the relevant procedures before

functionally binding regulated parties. See, e.g., Mendoza

v. Perez, 754 F. 3d 1002 (CADC 2014); Natural Resources

Defense Council v. EPA, 643 F. 3d 311 (CADC 2011); Na-

tional Family Planning & Reproductive Health Assn., Inc.

v. Sullivan, 979 F. 2d 227 (CADC 1992). But going forward,

when a rescinding agency inherits an invalid legislative

rule that ignored virtually every rulemaking requirement

of the APA, it will be obliged to overlook that reality. In-

stead of simply terminating the program because it did not

go through the requisite process, the agency will be com-

pelled to treat an invalid legislative rule as though it were

legitimate.13

——————

12 I express no view on what other reasons would justify an agency’s

decision to rescind a procedurally unlawful action. I merely point out

that correctly concluding that the program was illegal is sufficient.

13 In my view, even if DACA were permitted under the federal immi-

gration laws and had complied with the APA, it would still violate the

Constitution as an impermissible delegation of legislative power. See

Cite as: 591 U. S. ____ (2020) 21

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

IV

Even if I were to accept the majority’s premise that

DACA’s rescission required additional policy justifications,

the majority’s reasons for setting aside the agency’s deci-

sion still fail.

A

First, the majority claims that the Fifth Circuit discussed

only the legality of the 2014 memorandum’s conferral of

benefits, not its “forbearance component”—i.e., the decision

not to place DACA recipients into removal proceedings.

Ante, at 20. The majority, therefore, claims that, notwith-

standing the then-Attorney General’s legal conclusion,

then-Acting Secretary Duke was required to consider re-

voking DACA recipients’ lawful presence and other at-

tendant benefits while continuing to defer their removal.

Ante, at 22–23. Even assuming the majority correctly char-

acterizes the Fifth Circuit’s opinion, it cites no authority for

the proposition that arbitrary and capricious review re-

quires an agency to dissect an unlawful program piece by

piece, scrutinizing each separate element to determine

whether it would independently violate the law, rather

than just to rescind the entire program.14

——————

Department of Transportation v. Association of American Railroads, 575

U. S. 43, 77 (2015) (THOMAS, J., concurring in judgment). Putting aside

this constitutional concern, however, the notice and comment process at

least attempts to provide a “surrogate political process” that takes some

of the sting out of the inherently undemocratic and unaccountable rule-

making process. Asimow, Interim-Final Rules: Making Haste Slowly, 51

Admin. L. Rev. 703, 708 (1999).

14 The majority’s interpretation of the Fifth Circuit’s opinion is highly

questionable. Because a grant of deferred action renders DACA recipi-

ents eligible for certain benefits and work authorization, it is far from

clear that the Department could separate DACA’s “forbearance compo-

nent” from the major benefits it conferred without running into yet an-

other APA problem. The majority points to the fact that, under the Pa-

tient Protection and Affordable Care Act of 2010, relevant regulations

exclude those receiving deferred action through DACA from coverage.

22 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

The then-Attorney General reviewed the thorough deci-

sions of the District Court and the Fifth Circuit. Those

courts exhaustively examined the INA’s text and structure,

the relevant provisions of other federal immigration stat-

utes, the historical practice of deferred action, and the gen-

eral grants of statutory authority to set immigration policy.

Both decisions concluded that DAPA and expanded DACA

violated the carefully crafted federal immigration scheme,

that such violations could not be justified through reference

to past exercises of deferred action, and that the general

grants of statutory authority did not give DHS the power to

enact such a sweeping nonenforcement program. Based on

the reasoning of those decisions, then-Attorney General

Sessions concluded that DACA was likewise implemented

without statutory authority. He directed DHS to restore

the rule of law. DHS followed the then-Attorney General’s

legal analysis and rescinded the program. This legal con-

clusion more than suffices to supply the “reasoned analysis”

necessary to rescind an unlawful program. State Farm, 463

U. S., at 42.

The majority has no answer except to suggest that this

approach is inconsistent with State Farm. See ante, at 21–

22. But in doing so, the majority ignores the fact that, un-

like the typical “prior policy” contemplated by the Court in

——————

Ante, at 19, n. 5. But that misses the point. Those regulations were

promulgated before “anyone with deferred action under the DACA pro-

cess applie[d]” for those benefits. See 77 Fed. Reg. 52616 (2012). By

contrast, DACA recipients have been eligible for and have received Med-

icare, Social Security, and work authorization for years. DHS therefore

is not writing on a blank slate. Under the majority’s rule, DHS would

need to amend all relevant regulations and explain why all recipients of

deferred action who have previously received such benefits may no longer

receive them. Alternatively and perhaps more problematically, it would

need to provide a reason why other recipients of deferred action should

continue to qualify, while DACA recipients should not. It thus seems

highly likely that the majority’s proposed course of action would be sub-

ject to serious arbitrary and capricious challenges.

Cite as: 591 U. S. ____ (2020) 23

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

State Farm, DACA is unlawful. Neither State Farm nor

any other decision cited by the majority addresses what an

agency must do when it has inherited an unlawful program.

It is perhaps for this reason that, rather than responding

with authority of its own, the majority simply opts to excise

the “unlawful policy” aspect from its discussion.

B

Second, the majority claims that DHS erred by failing to

take into account the reliance interests of DACA recipients.

Ante, at 23–26. But reliance interests are irrelevant when

assessing whether to rescind an action that the agency

lacked statutory authority to take. No amount of reliance

could ever justify continuing a program that allows DHS to

wield power that neither Congress nor the Constitution

gave it. Any such decision would be “not in accordance with

law” or “in excess of statutory . . . authority.” 5 U. S. C.

§§706(2)(A), (C). Accordingly, DHS would simply be engag-

ing in yet another exercise of unlawful power if it used reli-

ance interests to justify continuing the initially unlawful

program, and a court would be obligated to set aside that

action.15

Even if reliance interests were sometimes relevant when

rescinding an ultra vires action, the rescission still would

not be arbitrary and capricious here. Rather, as the major-

ity does not dispute, the rescission is consistent with how

deferred action has always worked. As a general matter,

deferred action creates no rights—it exists at the Govern-

ment’s discretion and can be revoked at any time. See App.

——————

15 The majority contends that this argument does not carry force be-

cause the rescission implemented a winddown period during which re-

cipients would continue to receive benefits. But whether DHS’ decision

to wind down DACA was lawful is a separate question from whether

DHS was required to consider reliance interests before discontinuing an

unlawful program.

24 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

to Pet. for Cert. in No. 18–587, at 104a (DACA and ex-

panded DACA); 8 CFR §214.11(j)(3) (T visas); §214.14(d)(2)

(U visas); 62 Fed. Reg. 63249, 63253 (1997) (discussing

Exec. Order No. 12711 for certain citizens of the People’s

Republic of China). The Government has made clear time

and again that, because “deferred action is not an immigra-

tion status, no alien has the right to deferred action. It is

used solely in the discretion of the [Government] and con-

fers no protection or benefit upon an alien.” DHS Immigra-

tion and Customs Enforcement Office of Detention and Re-

moval, Detention and Deportation Officers’ Field Manual

§20.8 (Mar. 27, 2006); see also Memorandum from D. Meiss-

ner, Comm’r, INS, to Regional Directors et al., pp. 11–12

(Nov. 17, 2000); Memorandum from W. Yates, Assoc. Direc-

tor of Operations, DHS, Citizenship and Immigration

Servs., to Director, Vt. Serv. Center, p. 5 (2003). Thus, con-

trary to the majority’s unsupported assertion, ante, at 23,

this longstanding administrative treatment of deferred ac-

tion provides strong evidence and authority for the proposi-

tion that an agency need not consider reliance interests in

this context.16

Finally, it is inconceivable to require DHS to study reli-

ance interests before rescinding DACA considering how the

program was previously defended. DHS has made clear

since DACA’s inception that it would not consider such re-

liance interests. Contemporaneous with the DACA memo,

DHS stated that “DHS can terminate or renew deferred ac-

tion at any time at the agency’s discretion.” Consideration

——————

16 The majority’s approach will make it far more difficult to change

deferred-action programs going forward, which is hardly in keeping with

this Court’s own understanding that deferred action is an “exercise in

administrative discretion” used for administrative “convenience.” Reno

v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 484 (1999).

Agencies will likely be less willing to grant deferred action knowing that

any attempts to undo it will require years of litigation and time-consuming

rulemakings.

Cite as: 591 U. S. ____ (2020) 25

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

of Deferred Action for Childhood Arrivals Process, 89 Inter-

preter Releases 1557, App. 4, p. 2 (Aug. 20, 2012). In fact,

DHS repeatedly argued in court that the 2014 memoran-

dum was a valid exercise of prosecutorial discretion in part

because deferred action created no rights on which recipi-

ents could rely. Before the Fifth Circuit, DHS stated that

“DHS may revoke or terminate deferred action and begin

removal proceedings at any time at its discretion.” Brief for

Appellants in Texas v. United States, No. 15–40238, p. 7;

see also id., at 45–46. And before this Court, in that same

litigation, DHS reiterated that “DHS has absolute discre-

tion to revoke deferred action unilaterally, without notice

or process.” Brief for United States in United States v.

Texas, O. T. 2015, No. 15–674, p. 5; see also id., at 37. If

that treatment of reliance interests was incorrect, it pro-

vides yet one more example of a deficiency in DACA’s issu-

ance, not its rescission.

* * *

President Trump’s Acting Secretary of Homeland Secu-

rity inherited a program created by President Obama’s Sec-

retary that was implemented without statutory authority

and without following the APA’s required procedures.

Then-Attorney General Sessions correctly concluded that

this ultra vires program should be rescinded. These cases

could—and should—have ended with a determination that

his legal conclusion was correct.

Instead, the majority today concludes that DHS was re-

quired to do far more. Without grounding its position in

either the APA or precedent, the majority declares that

DHS was required to overlook DACA’s obvious legal defi-

ciencies and provide additional policy reasons and justifica-

tions before restoring the rule of law. This holding is incor-

rect, and it will hamstring all future agency attempts to

undo actions that exceed statutory authority. I would

26 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring in the judgment

Opinion in part

of THOMAS , J. and dissenting in part

therefore reverse the judgments below and remand with in-

structions to dissolve the nationwide injunctions.

Cite as: 591 U. S. ____ (2020) 1

Opinion of ALITO, J.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 18–587, 18–588, and 18–589

_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587 v.

REGENTS OF THE UNIVERSITY OF

CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588 v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589 v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[June 18, 2020]

JUSTICE ALITO, concurring in the judgment in part and

dissenting in part.

Anyone interested in the role that the Federal Judiciary

2 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of ALITO, J.

now plays in our constitutional system should consider

what has happened in these cases. Early in the term of the

current President, his administration took the controver-

sial step of attempting to rescind the Deferred Action for

Childhood Arrivals (DACA) program. Shortly thereafter,

one of the nearly 700 federal district court judges blocked

this rescission, and since then, this issue has been mired in

litigation. In November 2018, the Solicitor General filed

petitions for certiorari, and today, the Court still does not

resolve the question of DACA’s rescission. Instead, it tells

the Department of Homeland Security to go back and try

again. What this means is that the Federal Judiciary, with-

out holding that DACA cannot be rescinded, has prevented

that from occurring during an entire Presidential term.

Our constitutional system is not supposed to work that way.

I join JUSTICE THOMAS’s opinion. DACA presents a deli-

cate political issue, but that is not our business. As JUSTICE

THOMAS explains, DACA was unlawful from the start, and

that alone is sufficient to justify its termination. But even

if DACA were lawful, we would still have no basis for over-

turning its rescission. First, to the extent DACA repre-

sented a lawful exercise of prosecutorial discretion, its re-

scission represented an exercise of that same discretion,

and it would therefore be unreviewable under the Adminis-

trative Procedure Act. 5 U. S. C. §701(a)(2); see Heckler v.

Chaney, 470 U. S. 821, 831–832 (1985). Second, to the ex-

tent we could review the rescission, it was not arbitrary and

capricious for essentially the reasons explained by JUSTICE

KAVANAUGH. See post, at 4–6 (opinion concurring in the

judgment in part and dissenting in part).

Cite as: 591 U. S. ____ (2020) 1

Opinion of KAVANAUGH, J.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 18–587, 18–588, and 18–589

_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587 v.

REGENTS OF THE UNIVERSITY OF

CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588 v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589 v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[June 18, 2020]

JUSTICE KAVANAUGH, concurring in the judgment in part

and dissenting in part.

2 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

For the last 20 years, the country has engaged in conse-

quential policy, religious, and moral debates about the legal

status of millions of young immigrants who, as children,

were brought to the United States and have lived here ever

since. Those young immigrants do not have legal status in

the United States under current statutory law. They live,

go to school, and work here with uncertainty about their

futures. Despite many attempts over the last two decades,

Congress has not yet enacted legislation to afford legal sta-

tus to those immigrants.

In 2012, exercising its view of the Executive’s prosecuto-

rial discretion under Article II and the immigration laws,

President Obama’s administration unilaterally instituted a

program known as Deferred Action for Childhood Arrivals,

or DACA. Under DACA, eligible young immigrants may

apply for and receive deferred action. They must renew

their DACA status every two years. Under the program,

the Executive Branch broadly forbears from enforcing cer-

tain immigration removal laws against DACA recipients.

And by virtue of the forbearance, DACA recipients also be-

come eligible for work authorization and other benefits.

Since 2017, President Trump’s administration has

sought to rescind DACA based on its different and narrower

understanding of the Executive’s prosecutorial discretion

under Article II and the immigration laws. In its view, the

Executive Branch legally may not, and as a policy matter

should not, unilaterally forbear from enforcing the immi-

gration laws against such a large class of individuals. The

current administration has stated that it instead wants to

work with Congress to enact comprehensive legislation that

would address the legal status of those immigrants together

with other significant immigration issues.

The question before the Court is whether the Executive

Branch acted lawfully in ordering rescission of the ongoing

DACA program. To begin with, all nine Members of the

Court accept, as do the DACA plaintiffs themselves, that

Cite as: 591 U. S. ____ (2020) 3

Opinion of KAVANAUGH, J.

the Executive Branch possesses the legal authority to re-

scind DACA and to resume pre-DACA enforcement of the

immigration laws enacted by Congress. Having previously

adopted a policy of prosecutorial discretion and nonenforce-

ment with respect to a particular class of offenses or indi-

viduals, the Executive Branch has the legal authority to re-

scind such a policy and resume enforcing the law enacted

by Congress. The Executive Branch’s exercise of that re-

scission authority is subject to constitutional constraints

and may also be subject to statutory constraints. The nar-

row legal dispute here concerns a statutory constraint—

namely, whether the Executive Branch’s action to rescind

DACA satisfied the general arbitrary-and-capricious stand-

ard of the Administrative Procedure Act, or APA.

The APA’s arbitrary-and-capricious standard requires

that agency action be reasonable and reasonably explained.

As the Court has long stated, judicial review under that

standard is deferential to the agency. The Court may not

substitute its policy judgment for that of the agency. The

Court simply ensures that the agency has acted within a

broad zone of reasonableness and, in particular, has reason-

ably considered the relevant issues and reasonably ex-

plained the decision. See FCC v. Fox Television Stations,

Inc., 556 U. S. 502 (2009); Motor Vehicle Mfrs. Assn. of

United States, Inc. v. State Farm Mut. Automobile Ins. Co.,

463 U. S. 29 (1983).

The Executive Branch explained its decision to rescind

DACA in two sequential memorandums by successive Sec-

retaries of Homeland Security: the 2017 Duke Memoran-

dum and the 2018 Nielsen Memorandum. The Duke Mem-

orandum focused on DACA’s perceived legal flaws. The

Court today finds the Duke Memorandum insufficient un-

der the APA’s arbitrary-and-capricious standard.

But regardless of whether the Court is correct about the

Duke Memorandum, the Nielsen Memorandum more fully

explained the Department’s legal reasons for rescinding

4 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

DACA, and clarified that even if DACA were lawful, the De-

partment would still rescind DACA for a variety of policy

reasons. The Nielsen Memorandum also expressly ad-

dressed the reliance interests of DACA recipients. The

question under the APA’s deferential arbitrary-and-capri-

cious standard is not whether we agree with the Depart-

ment’s decision to rescind DACA. The question is whether

the Nielsen Memorandum reasonably explained the deci-

sion to rescind DACA. Under ordinary application of the

arbitrary-and-capricious standard, the Nielsen Memoran-

dum—with its alternative and independent rationales and

its discussion of reliance—would pass muster as an expla-

nation for the Executive Branch’s action.

The Nielsen Memorandum was issued nine months after

the Duke Memorandum. Under the Administrative Proce-

dure Act, the Nielsen Memorandum is itself a “rule” setting

forth “an agency statement of general . . . applicability and

future effect designed to implement . . . policy.” 5 U. S. C.

§551(4). Because it is a rule, the Nielsen Memorandum con-

stitutes “agency action.” §551(13). As the Secretary of

Homeland Security, Secretary Nielsen had the authority to

decide whether to stick with Secretary Duke’s decision to

rescind DACA, or to make a different decision. Like Secre-

tary Duke, Secretary Nielsen chose to rescind DACA, and

she provided additional explanation. Her memorandum

was akin to common forms of agency action that follow ear-

lier agency action on the same subject—for example, a sup-

plemental or new agency statement of policy, or an agency

order with respect to a motion for rehearing or reconsider-

ation. Courts often consider an agency’s additional expla-

nations of policy or additional explanations made, for exam-

ple, on agency rehearing or reconsideration, or on remand

from a court, even if the agency’s bottom-line decision itself

does not change.

Yet the Court today jettisons the Nielsen Memorandum

by classifying it as a post hoc justification for rescinding

Cite as: 591 U. S. ____ (2020) 5

Opinion of KAVANAUGH, J.

DACA. Ante, at 14–16. Under our precedents, however, the

post hoc justification doctrine merely requires that courts

assess agency action based on the official explanations of

the agency decisionmakers, and not based on after-the-fact

explanations advanced by agency lawyers during litigation

(or by judges). See, e.g., State Farm, 463 U. S., at 50

(“courts may not accept appellate counsel’s post hoc ration-

alizations for agency action”); FPC v. Texaco Inc., 417 U. S.

380, 397 (1974) (same); NLRB v. Metropolitan Life Ins. Co.,

380 U. S. 438, 443–444 (1965) (same); Burlington Truck

Lines, Inc. v. United States, 371 U. S. 156, 168–169 (1962)

(same). As the D. C. Circuit has explained, the post hoc jus-

tification doctrine “is not a time barrier which freezes an

agency’s exercise of its judgment after an initial decision

has been made and bars it from further articulation of its

reasoning. It is a rule directed at reviewing courts which

forbids judges to uphold agency action on the basis of ra-

tionales offered by anyone other than the proper deci-

sionmakers.” Alpharma, Inc. v. Leavitt, 460 F. 3d 1, 6

(2006) (Garland, J.) (internal quotation marks omitted).

Indeed, the ordinary judicial remedy for an agency’s in-

sufficient explanation is to remand for further explanation

by the relevant agency personnel. It would make little

sense for a court to exclude official explanations by agency

personnel such as a Cabinet Secretary simply because the

explanations are purportedly post hoc, and then to turn

around and remand for further explanation by those same

agency personnel. Yet that is the upshot of the Court’s ap-

plication of the post hoc justification doctrine today. The

Court’s refusal to look at the Nielsen Memorandum seems

particularly mistaken, moreover, because the Nielsen

Memorandum shows that the Department, back in 2018,

considered the policy issues that the Court today says the

Department did not consider. Ante, at 20–26.

To be sure, cases such as Overton Park and Camp v. Pitts

suggest that courts reviewing certain agency adjudications

6 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

may in some circumstances decline to examine an after-the-

fact agency explanation. See Camp v. Pitts, 411 U. S. 138,

142–143 (1973) (per curiam); Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U. S. 402, 419–421 (1971). But

agency adjudications are “concerned with the determina-

tion of past and present rights and liabilities,” Attorney

General’s Manual on the Administrative Procedure Act 14

(1947), and implicate the due process interests of the indi-

vidual parties to the adjudication. Judicial review of an ad-

judication therefore ordinarily focuses on what happened

during the agency’s adjudication process of deciding that in-

dividual case.

Even if certain agency adjudications have a slightly more

stringent restriction on post hoc explanations, the APA is

“based upon a dichotomy between rule making and adjudi-

cation,” ibid., and this case involves an ongoing agency rule

that has future effect—the rescission of DACA. The Nielsen

Memorandum implements and explains the rescission of

DACA. I am aware of no case from this Court, and the

Court today cites none, that has employed the post hoc jus-

tification doctrine to exclude an agency’s official explana-

tion of an agency rule. For purposes of arbitrary-and-capri-

cious review, it does not matter whether the latest official

explanation was two years ago or three years ago. What

matters is whether the explanation was reasonable and fol-

lowed the requisite procedures. In my view, the Court

should consider the Nielsen Memorandum in deciding

whether the Department’s rescission of DACA satisfies the

APA’s arbitrary-and-capricious standard.

Because the Court excludes the Nielsen Memorandum,

the Court sends the case back to the Department of Home-

land Security for further explanation. Although I disagree

with the Court’s decision to remand, the only practical con-

sequence of the Court’s decision to remand appears to be

some delay. The Court’s decision seems to allow the De-

partment on remand to relabel and reiterate the substance

Cite as: 591 U. S. ____ (2020) 7

Opinion of KAVANAUGH, J.

of the Nielsen Memorandum, perhaps with some elabora-

tion as suggested in the Court’s opinion. Ante, at 23–26.*

* * *

The Court’s resolution of this narrow APA issue of course

cannot eliminate the broader uncertainty over the status of

the DACA recipients. That uncertainty is a result of Con-

gress’s inability thus far to agree on legislation, which in

turn has forced successive administrations to improvise,

thereby triggering many rounds of relentless litigation with

the prospect of more litigation to come. In contrast to those

necessarily short-lived and stopgap administrative

measures, the Article I legislative process could produce a

sturdy and enduring solution to this issue, one way or the

other, and thereby remove the uncertainty that has per-

sisted for years for these young immigrants and the Na-

——————

* Because I conclude that the Executive Branch satisfied the APA’s ar-

bitrary-and-capricious standard, I need not consider whether its prose-

cutorial enforcement policy was “committed to agency discretion by law”

and therefore not subject to APA arbitrary-and-capricious review in the

first place. 5 U. S. C. §701(a)(2). Several judges have advanced argu-

ments suggesting that DACA—at least to the extent it was simply an

exercise of forbearance authority—and the repeal of DACA are decisions

about whether and to what extent to exercise prosecutorial discretion

against a class of offenses or individuals, and are therefore unreviewable

under the APA as “committed to agency discretion by law.” Ibid.; see

Casa De Maryland v. United States Dept. of Homeland Security, 924 F.

3d 684, 709–715 (CA4 2019) (Richardson, J., concurring in part and dis-

senting in part); Regents of Univ. Cal. v. United States Dept. of Homeland

Security, 908 F. 3d 476, 521–523 (CA9 2018) (Owens, J., concurring in

judgment); see also Texas v. United States, 809 F. 3d 134, 196–202 (CA5

2015) (King, J., dissenting); Texas v. United States, 787 F. 3d 733, 770–

776 (CA5 2015) (Higginson, J., dissenting); cf. Heckler v. Chaney, 470

U. S. 821, 831–835 (1985); ICC v. Locomotive Engineers, 482 U. S. 270,

277–284 (1987); United States v. Nixon, 418 U. S. 683, 693 (1974) (“the

Executive Branch has exclusive authority and absolute discretion to de-

cide whether to prosecute a case”); In re Aiken County, 725 F. 3d 255,

262–264 (CADC 2013).

8 DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

tion’s immigration system. In the meantime, as to the nar-

row APA question presented here, I appreciate the Court’s

careful analysis, but I ultimately disagree with its treat-

ment of the Nielsen Memorandum. I therefore respectfully

dissent from the Court’s judgment on plaintiffs’ APA claim,

and I concur in the judgment insofar as the Court rejects

plaintiffs’ equal protection claim.