Supreme Court decision syllabus (SCOTUS)

DEPARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV. OF CA (DACA)

June 19, 2020 RJ Dieken Season 2019 Episode 46
Supreme Court decision syllabus (SCOTUS)
DEPARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV. OF CA (DACA)
Chapters
Supreme Court decision syllabus (SCOTUS)
DEPARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV. OF CA (DACA)
Jun 19, 2020 Season 2019 Episode 46
RJ Dieken

DACA can not be rescinded without further/better explanation by the DHS.

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Show Notes Transcript

DACA can not be rescinded without further/better explanation by the DHS.

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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 memorandum
announcing an immigration relief program known as DeferredAction for Childhood Arrivals (DACA), which allows certain unauthorized
aliens who arrived in the United States as children to apply for a
two-year forbearance of removal. Those granted such relief becomeeligible 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 related
program known as Deferred Action for Parents of Americans and
Lawful Permanent Residents (DAPA). If implemented, that programwould have made 4.3 million parents of U. S. citizens or lawful permanent
residents eligible for the same forbearance from removal, work
eligibility, and other benefits as DACA recipients. Texas, joined by 25other States, secured a nationwide preliminary injunction barring implementation
of both the DACA expansion and DAPA. The Fifth Circuit
upheld the injunction, concluding that the program violated the
Immigration and Nationality Act (INA), which carefully defines eligibility
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.


DEPARTMENT OF HOMELAND SECURITY v.

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 alsobe rescinded. The next day, Duke acted on that advice. Taking intoconsideration the Fifth Circuit and Supreme Court rulings and the Attorney
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 sixmonths could apply for a two-year renewal. For all other DACA recipients,
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 theAdministrative Procedure Act (APA) and infringed the equal protection
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 arguments
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 wereadequately alleged, and they entered coextensive nationwide preliminary
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 challenge
but granted partial summary judgment to the plaintiffs on theirAPA 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 ofthe conclusion that DACA was unlawful. Two months later, Duke’s
successor, Secretary Kirstjen M. Nielsen, responded to the court’s order.
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 explanation,
but the court concluded that the new reasoning failed to elaboratemeaningfully on the illegality rationale.

The Government appealed the various District Court decisions to
the Second, Ninth, and D. C. Circuits, respectively. While those appeals
were pending, the Government filed three petitions for certiorari


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 inpart; 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, November
9, 2017 order affirmed in part, and March 29, 2018 order reversed
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 action,
Abbott Laboratories v. Gardner, 387 U. S. 136, 140, can be rebutted
by showing that the “agency action is committed to agency discretion
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 institute
an enforcement action. 470 U. S. 821, 831–832. The Government
contends that DACA is a general non-enforcement policy equivalent tothe individual non-enforcement decision in Chaney. But the DACA
Memorandum did not merely decline to institute enforcement proceedings;
it created a program for conferring affirmative immigration relief.
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 authorization
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 review
of claims arising from “action[s]” or “proceeding[s] brought to remove
an alien,” is inapplicable where, as here, the parties do not challenge
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 under
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


DEPARTMENT OF HOMELAND SECURITY v.

Nielsen nine months later. Judicial review of agency action, however,
is limited to “the grounds that the agency invoked when it took theaction.” Michigan v. EPA, 576 U. S. 743, 758. If those grounds areinadequate, a court may remand for the agency to 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
(emphasis added), or to “deal with the problem afresh” by taking new
agency action, SEC v. Chenery Corp., 332 U. S. 194, 201. Because Secretary
Nielsen chose not to take new action, she was limited to elaborating
on the agency’s original reasons. But her reasoning bears littlerelationship to that of her predecessor and consists primarily of impermissible
“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 accountability
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 allowed
DHS to rely on reasons offered nine months after the rescission
and after three different courts had identified flaws in the original explanation.
Pp. 13–17.

(b) Acting Secretary Duke’s rescission memorandum failed to consider
important aspects of the problem before the agency. AlthoughDuke 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 thatdetermination 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 defects
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 extended
eligibility for benefits to a class of unauthorized aliens. But the
defining feature of DAPA (and DACA) is DHS’s decision to defer removal,
and the Fifth Circuit carefully distinguished that forbearance
component from the associated benefits eligibility. Eliminating benefits
eligibility while continuing forbearance thus remained squarely
within Duke’s discretion. Yet, rather than addressing forbearance inher decision, Duke treated the Attorney General’s conclusion regarding
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 policyas sufficient to rescind the entire policy. 463 U. S. 29, 51. While DHS



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 ‘reasonedanalysis.’ ” Id., at 57.

That omission alone renders Duke’s decision arbitrary and capricious,
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 andcould have considered various accommodations. While the agency was
not required to pursue these accommodations, it was required to assessthe existence and strength of any reliance interests, and weigh themagainst 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 byanimus 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 SOTOMAYOR,
J., joined as to all but Part IV. SOTOMAYOR, J., filed an opinionconcurring in part, concurring in the judgment in part, and dissenting in
part. THOMAS, J., filed an opinion concurring in the judgment in part anddissenting in part, in which ALITO and GORSUCH, JJ., joined. ALITO, J.,
and KAVANAUGH, J., filed opinions concurring in the judgment in partand dissenting in part.


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, Washington,
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]


DEPARTMENT OF HOMELAND SECURITY v.

CHIEF JUSTICE ROBERTS delivered the opinion of the
Court, except as to Part IV.

In the summer of 2012, the Department of Homeland Security
(DHS) announced an immigration program known asDeferred 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 forbearance
of removal. Those granted such relief are alsoeligible 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 torescind DACA, based on his conclusion that it was unlawful.
The Department’s Acting Secretary issued a memorandum
terminating the program on that basis. The termination
was challenged by affected individuals and thirdparties who alleged, among other things, that the ActingSecretary 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, andthat the rescission must be vacated.

I
A

In June 2012, the Secretary of Homeland Security issued
a memorandum announcing an immigration relief programfor “certain young people who were brought to this countryas children.” App. to Pet. for Cert. in No. 18–587, p. 97a
(App. to Pet. for Cert.). Known as DACA, the program applies
to childhood arrivals who were under age 31 in 2012;
have continuously resided here since 2007; are current students,
have completed high school, or are honorably discharged
veterans; have not been convicted of any serious
crimes; and do not threaten national security or public


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 violatethe 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 beingremoved from the United States,” the DACA Memorandum
instructs Immigration and Customs Enforcement to “exercise
prosecutorial discretion[] on an individual basis . . . bydeferring action for a period of two years, subject to renewal.”
Id., at 100a. In addition, it directs U. S. Citizenship
and Immigration Services (USCIS) to “accept applications
to determine whether these individuals qualify forwork 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) (permitting
work authorization for deferred action recipients who
establish “economic necessity”); 46 Fed. Reg. 25080–25081(1981) (similar). Pursuant to other regulations, deferred action
recipients are considered “lawfully present” for purposes
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 promulgated,
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 authorizationperiod to three years. App. to Pet. for Cert. 106a–107a. In
the same memorandum, DHS created a new, related program
known as Deferred Action for Parents of Americans
and Lawful Permanent Residents, or DAPA. That programwould have authorized deferred action for up to 4.3 million
parents whose children were U. S. citizens or lawful permanent
residents. These parents were to enjoy the same forbearance,
work eligibility, and other benefits as DACA


DEPARTMENT OF HOMELAND SECURITY v.

recipients.

Before the DAPA Memorandum was implemented, 26States, 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 requirement,
the Immigration and Nationality Act (INA), and theExecutive’s duty under the Take Care Clause of the Constitution.
The District Court found that the States were likelyto succeed on the merits of at least one of their claims and
entered a nationwide preliminary injunction barring implementation
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 Circuit
affirmed the preliminary injunction. Texas v. United
States, 809 F. 3d 134, 188 (2015). In opposing the injunction,
the Government argued that the DAPA Memorandum
reflected an unreviewable exercise of the Government’s enforcement
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 substantive
rule that was required to undergo notice and comment.
It then held that the APA required DAPA to be set
aside because the program was “manifestly contrary” to theINA, which “expressly and carefully provides legal designations
allowing defined classes” to “receive the benefits” associated
with “lawful presence” and to qualify for work


Opinion of the Court

authorization, 809 F. 3d, at 179–181, 186 (internal quotation
marks omitted). Judge King dissented.

This Court affirmed the Fifth Circuit’s judgment by anequally divided vote, which meant that no opinion was issued.
United States v. Texas, 579 U. S. ___ (2016) (per curiam).
For the next year, litigation over DAPA and theDACA expansion continued in the Southern District of
Texas, while implementation of those policies remainedenjoined.

Then, in June 2017, following a change in Presidential
administrations, DHS rescinded the DAPA Memorandum.
In explaining that decision, DHS cited the preliminary injunction
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, AttorneyGeneral Jefferson B. Sessions III sent a letter to Acting Secretary
of Homeland Security Elaine C. Duke, “advis[ing]”
that DHS “should rescind” DACA as well. App. 877. Citingthe Fifth Circuit’s opinion and this Court’s equally divided
affirmance, the Attorney General concluded that DACAshared the “same legal . . . defects that the courts recognized
as to DAPA” and was “likely” to meet a similar fate.
Id., at 878. “In light of the costs and burdens” that a rescission
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 advice.
In her decision memorandum, Duke summarized the
history of the DACA and DAPA programs, the Fifth Circuitopinion and ensuing affirmance, and the contents of the Attorney
General’s letter. App. to Pet. for Cert. 111a–117a.
“Taking into consideration the Supreme Court’s and theFifth Circuit’s rulings” and the “letter from the AttorneyGeneral,” she concluded that the “DACA program should be
terminated.” Id., at 117a.


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 DHSwould entertain applications for two-year renewals from
DACA recipients whose benefits were set to expire within
six months. For all other DACA recipients, previously issued
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 announcement,
multiple groups of plaintiffs ranging from individual
DACA recipients and States to the Regents of theUniversity 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 California
(Regents, No. 18–587), the Eastern District of New
York (Batalla Vidal, No. 18–589), and the District of Columbia
(NAACP, No. 18–588). The relevant claims are that
the rescission was arbitrary and capricious in violation ofthe APA and that it infringed the equal protection guarantee
of the Fifth Amendment’s Due Process Clause.1
All three District Courts ruled for the plaintiffs, albeit atdifferent stages of the proceedings.2 In doing so, each courtrejected the Government’s threshold arguments that the

——————

1Plaintiffs also raised notice and comment claims, which uniformlyfailed below, and assorted due process challenges, some of which survived
motions to dismiss. Those claims are not before us.

2In 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 Security,
284 F. Supp. 3d 758 (2018). After the Government filed petitions
for certiorari in the instant cases, the Fourth Circuit reversed that decision
and vacated Acting Secretary Duke’s rescission as arbitrary and capricious.
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.


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 coextensive
nationwide preliminary injunctions, based on the conclusion
that the plaintiffs were likely to succeed on the merits
of their claims that the rescission was arbitrary and
capricious. These injunctions did not require DHS to acceptnew applications, but did order the agency to allow DACArecipients 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 protection
challenge but granted partial summary judgment to
the plaintiffs on their APA claim, holding that Acting Secretary
Duke’s “conclusory statements were insufficient toexplain the change in [the agency’s] view of DACA’s lawfulness.”
298 F. Supp. 3d, at 243. The District Court stayedits order for 90 days to permit DHS to “reissue a memorandum
rescinding DACA, this time providing a fuller explanation
for the determination that the program lacks statutory
and constitutional authority.” Id., at 245.

Two months later, Duke’s successor, Secretary Kirstjen

M. Nielsen, responded via memorandum. App. to Pet. forCert. 120a–126a. She explained that, “[h]aving considered
the Duke memorandum,” she “decline[d] to disturb” the rescission.
Id., at 121a. Secretary Nielsen went on to articulate
her “understanding” of Duke’s memorandum, identifying
three reasons why, in Nielsen’s estimation, “thedecision to rescind the DACA policy was, and remains,
sound.” Ibid. First, she reiterated that, “as the Attorney


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 agencyhad “serious doubts about [DACA’s] legality” and, for law
enforcement reasons, wanted to avoid “legally questionable”
policies. Id., at 123a. Third, she identified multiplepolicy 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 importance
of “project[ing] a message” that immigration lawswould be enforced against all classes and categories of aliens.
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 “outweigh
the questionable legality of the DACA policy and theother reasons” for the rescission discussed in her memorandum.
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 decisions
to the Second, Ninth, and D. C. Circuits, respectively.
In November 2018, while those appeals were pending,
the Government simultaneously filed three petitionsfor certiorari before judgment. After the Ninth Circuit affirmed
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 argument.
588 U. S. ___ (2019). The issues raised here are

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


Opinion of the Court

whether the rescission was arbitrary and capricious in violation
of the APA, and (3) whether the plaintiffs have statedan equal protection claim.

II
The dispute before the Court is not whether DHS mayrescind DACA. All parties agree that it may. The disputeis instead primarily about the procedure the agency followed
in doing so.
The APA “sets forth the procedures by which federalagencies are accountable to the public and their actionssubject 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 directs
that agency actions be “set aside” if they are “arbitrary”
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 quotationmarks omitted), but instead to assess only whether the decision
was “based on a consideration of the relevant factors
and whether there has been a clear error of judgment,” Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402,
416 (1971).
But before determining whether the rescission was arbitrary
and capricious, we must first address the Government’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 action.’”
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,


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court

§701(a)(1), or that the “agency action is committed toagency discretion by law,” §701(a)(2). The latter exceptionis at issue here.

To “honor the presumption of review, we have read theexception 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 “administrative
decision[s] traditionally left to agency discretion,”
Lincoln v. Vigil, 508 U. S. 182, 191 (1993). This limited category
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 exception
that the Government primarily relies.

In Chaney, several death-row inmates petitioned the
Food and Drug Administration (FDA) to take enforcementaction against two States to prevent their use of certaindrugs 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’sdecision not to prosecute or enforce” is “generally committed
to an agency’s absolute discretion.” Id., at 831. We
identified a constellation of reasons that underpin this tradition.
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 indict,
which has “long been regarded as the special provinceof 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-enforcementpolicy 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


Opinion of the Court

its expertise, and does so in a manner akin to a criminal
prosecutor. Building on that premise, the Government argues
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 becauseDACA is not simply a non-enforcement policy. For starters,
the DACA Memorandum did not merely “refus[e] to institute
proceedings” against a particular entity or even a particular
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 effectively
“adjudicat[ions].” Id., at 117a. And the result of
these adjudications—DHS’s decision to “grant deferred action,”
Brief for Petitioners 45—is an “affirmative act of approval,”
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 createda program for conferring affirmative immigration relief.
The creation of that program—and its rescission—is an “action
[that] provides a focus for judicial review.” Id., at 832.

The benefits attendant to deferred action providefurther confirmation that DACA is more than simply a
non-enforcement policy. As described above, by virtue ofreceiving deferred action, the 700,000 DACA recipients may
request work authorization and are eligible for Social Security
and Medicare. See supra, at 3. Unlike an agency’s refusal
to take requested enforcement action, access to these


DEPARTMENT OF HOMELAND SECURITY v.

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 determination
for Social Security benefits).

Because the DACA program is more than a non-enforcement
policy, its rescission is subject to review under theAPA.

B
The Government also invokes two jurisdictional provisions
of the INA as independent bars to review. Neither
applies.
Section 1252(b)(9) bars review of claims arising from “action[
s]” or “proceeding[s] brought to remove an alien.” 66
Stat. 209, as amended, 8 U. S. C. §1252(b)(9). That targeted
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 ofan order of removal,” “the decision . . . to seek removal,” or
“the process by which . . . removability will be determined.”
Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality
opinion) (slip op., at 10–11); id., at ___ (BREYER, J.,
dissenting) (slip op., at 31). And it is certainly not a barwhere, 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 proceedings,
adjudicate cases, or execute removal orders.”
§1252(g). We have previously rejected as “implausible” theGovernment’s suggestion that §1252(g) covers “all claimsarising from deportation proceedings” or imposes “a general
jurisdictional limitation.” Reno v. American-Arab Anti-
Discrimination Comm., 525 U. S. 471, 482 (1999). The rescission,
which revokes a deferred action program with associated
benefits, is not a decision to “commence proceedings,”
much less to “adjudicate” a case or “execute” a


Opinion of the Court

removal order.

With these preliminary arguments out of the way, weproceed to the merits.

III
A

Deciding whether agency action was adequately explained
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 Government
urges us to go on and consider the June 2018 memorandum
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 “reissue
a memorandum rescinding DACA, this time providing
a fuller explanation for the determination that the programlacks statutory and constitutional authority.” 298 F. Supp.
3d, at 245. According to the Government, the Nielsen Memorandum
is properly before us because it was invited by theDistrict Court and reflects the views of the Secretary of
Homeland Security—the official responsible for immigration
policy. Respondents disagree, arguing that the Nielsen
Memorandum, issued nine months after the rescission, impermissibly
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 groundsthat 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.


DEPARTMENT OF HOMELAND SECURITY v.

Leavitt, 460 F. 3d 1, 5–6 (CADC 2006) (Garland, J.) (permitting
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 elaboratelater 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 problemafresh” by taking new agency action. SEC v. Chenery Corp.,
332 U. S. 194, 201 (1947) (Chenery II). An agency takingthis route is not limited to its prior reasons but must complywith the procedural requirements for new agency action.

The District Court’s remand thus presented DHS with achoice: rest on the Duke Memorandum while elaborating on
its prior reasoning, or issue a new rescission bolstered bynew reasons absent from the Duke Memorandum. Secretary
Nielsen took the first path. Rather than making a newdecision, she “decline[d] to disturb the Duke memorandum’s
rescission” and instead “provide[d] further explanation”
for that action. App. to Pet. for Cert. 121a. Indeed,
the Government’s subsequent request for reconsiderationdescribed the Nielsen Memorandum as “additional explanation
for [Duke’s] decision” and asked the District Courtto “leave in place [Duke’s] September 5, 2017 decision to rescind
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 injudgment in part and dissenting in part), the Nielsen Memorandum
was by its own terms not a new rule implementing
a new policy.

Because Secretary Nielsen chose to elaborate on the reasons
for the initial rescission rather than take new administrative
action, she was limited to the agency’s original reasons,
and her explanation “must be viewed critically” to


Opinion of the Court

ensure that the rescission is not upheld on the basis of impermissible
“post hoc rationalization.” Overton Park, 401

U. S., at 420. But despite purporting to explain the DukeMemorandum, Secretary Nielsen’s reasoning bears littlerelationship to that of her predecessor. Acting SecretaryDuke rested the rescission on the conclusion that DACA is
unlawful. Period. See App. to Pet. for Cert. 117a. By contrast,
Secretary Nielsen’s new memorandum offered three“separate and independently sufficient reasons” for the rescission,
id., at 122a, only the first of which is the conclusionthat DACA is illegal.

Her second reason is that DACA is, at minimum, legally
questionable and should be terminated to maintain publicconfidence in the rule of law and avoid burdensome litigation.
No such justification can be found in the Duke Memorandum.
Legal uncertainty is, of course, related to illegality.
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 uncertainty,
illegality presumably requires remedial action of
some sort.

The policy reasons that Secretary Nielsen cites as a thirdbasis 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-bycase
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 viewedonly as impermissible post hoc rationalizations and thus
are not properly before us.

The Government, echoed by JUSTICE KAVANAUGH, protests
that requiring a new decision before considering Nielsen’s
new justifications would be “an idle and useless formality.”
NLRB v. Wyman-Gordon Co., 394 U. S. 759, 766,


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court

n. 6 (1969) (plurality opinion). See also post, at 5. Procedural
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 thepublic can respond fully and in a timely manner to an
agency’s exercise of authority. Considering only contemporaneous
explanations for agency action also instills confidence
that the reasons given are not simply “convenient litigating
position[s].” Christopher v. SmithKline Beecham
Corp., 567 U. S. 142, 155 (2012) (internal quotation marksomitted). Permitting agencies to invoke belated justifications,
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 amoving target. Each of these values would be markedly undermined
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 whatagencies may do. Post, at 5. While it is true that the Court
has often rejected justifications belatedly advanced by advocates,
we refer to this as a prohibition on post hoc rationalizations,
not advocate rationalizations, because the problem
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 agencyor 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


Park, 401 U. S., at 419 (rejecting “litigation affidavits” fromagency 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 atstake, 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 actionsbased 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, Acting
Secretary Duke’s justification for the rescission was succinct:
“Taking into consideration” the Fifth Circuit’s conclusion
that DAPA was unlawful because it conferred benefits
in violation of the INA, and the Attorney General’s conclusion
that DACA was unlawful for the same reason, she

concluded—without elaboration—that the “DACA programshould be terminated.” App. to Pet. for Cert. 117a.4
——————

3 JUSTICE KAVANAUGH further argues that the contemporaneous explanation
requirement applies only to agency adjudications, not rule-
makings. Post, at 5–6 (opinion concurring in judgment in part and dissenting
in part). But he cites no authority limiting this basic principle—
which the Court regularly articulates in the context of rulemakings—toadjudications. The Government does not even raise this unheralded argument.


4The Government contends that Acting Secretary Duke also focused
on litigation risk. Although the background section of her memo references
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 defended
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 workin 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 Secretary
Duke’s decisionmaking authority—she was bound bythe Attorney General’s legal determination.

The same statutory provision that establishes the Secretary
of Homeland Security’s authority to administer and enforce
immigration laws limits that authority, specifyingthat, with respect to “all questions of law,” the determinations
of the Attorney General “shall be controlling.” 8

U. S. C. §1103(a)(1). Respondents are aware of this constraint.
Indeed they emphasized the point in the reviewability
sections of their briefs. But in their merits arguments,
respondents never addressed whether or how thisunique statutory provision might affect our review. Theydid not discuss whether Duke was required to explain a legal
conclusion that was not hers to make. Nor did they discuss
whether the current suits challenging Duke’s rescission
decision, which everyone agrees was within her legalauthority under the INA, are proper vehicles for attackingthe Attorney General’s legal conclusion.

Because of these gaps in respondents’ briefing, we do notevaluate the claims challenging the explanation and correctness
of the illegality conclusion. Instead we focus our
attention on respondents’ third argument—that Acting Secretary
Duke “failed to consider . . . important aspect[s] ofthe 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.


Whether DACA is illegal is, of course, a legal determination,
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, especiallywhen the finding concerns a program with the breadth ofDACA. Those policy choices are for DHS.

Acting Secretary Duke plainly exercised such discretionary
authority in winding down the program. See App. toPet. for Cert. 117a–118a (listing the Acting Secretary’s decisions
on eight transition issues). Among other things, shespecified that those DACA recipients whose benefits were
set to expire within six months were eligible for two-yearrenewals. Ibid.

But Duke did not appear to appreciate the full scope of
her discretion, which picked up where the Attorney General’s
legal reasoning left off. The Attorney General concluded
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 legalityof 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 Circuit’s
focus on these benefits was central to every stage of
its analysis. See id., at 155 (standing); id., at 163 (zone ofinterest); 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 thatDAPA was “manifestly contrary to the INA” precisely because
it “would make 4.3 million otherwise removable aliens”
eligible for work authorization and public benefits.
Id., at 181–182 (internal quotation marks omitted).5

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


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court

But there is more to DAPA (and DACA) than such benefits.
The defining feature of deferred action is the decision
to defer removal (and to notify the affected alien of that decision).
See App. to Pet. for Cert. 99a. And the Fifth Circuit
was careful to distinguish that forbearance component fromeligibility for benefits. As it explained, the “challenged portion
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—atleast temporarily—not to enforce the immigration laws asto a class of what he deem[ed] to be low-priority illegal aliens.”
Id., at 166. Borrowing from this Court’s prior description
of deferred action, the Fifth Circuit observed that“the states do not challenge the Secretary’s decision to ‘decline
to institute proceedings, terminate proceedings, or decline
to execute a final order of deportation.’” Id., at 168
(quoting Reno, 525 U. S., at 484). And the Fifth Circuit underscored
that nothing in its decision or the preliminary injunction
“requires the Secretary to remove any alien or toalter” the Secretary’s class-based “enforcement priorities.”
Texas, 809 F. 3d, at 166, 169. In other words, the Secretary’s
forbearance authority was unimpaired.

Acting Secretary Duke recognized that the Fifth Circuit’sholding 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 “lawfully
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 inexorably
from forbearance. Thus, while deferred action recipients have beendesignated lawfully present for purposes of Social Security and Medicare
eligibility, see 8 CFR §1.3; 42 CFR §417.422(h), agencies can also excludethem from this designation, see 45 CFR §152.2(8) (2019) (specifying thatDACA recipients are not considered lawfully present for purposes of coverage
under the Affordable Care Act).


Opinion of the Court

cluded that DAPA “conflicted with the discretion authorized
by Congress” because the INA “‘flatly does not permitthe reclassification of millions of illegal aliens as lawfullypresent and thereby make them newly eligible for a host offederal 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 forbearance
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 policies
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 regarding
the illegality of benefits as sufficient to rescind bothbenefits 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 National
Highway Traffic Safety Administration (NHTSA)
promulgated a requirement that motor vehicles producedafter 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 effectiveprotection. Based on that premise, NHTSA rescinded thepassive restraint requirement in full. Id., at 38.

We concluded that the total rescission was arbitrary andcapricious. As we explained, NHTSA’s justification supported
only “disallow[ing] compliance by means of ” automatic
seatbelts. Id., at 47. It did “not cast doubt” on the


DEPARTMENT OF HOMELAND SECURITY v.

“efficacy of airbag technology” or upon “the need for a
passive restraint standard.” Ibid. Given NHTSA’s priorjudgment that “airbags are an effective and cost-beneficiallifesaving technology,” we held that “the mandatorypassive 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 authorization
and other benefits to DACA recipients, that conclusion
supported only “disallow[ing]” benefits. Id., at 47. It
did “not cast doubt” on the legality of forbearance or uponDHS’s original reasons for extending forbearance to childhood
arrivals. Ibid. Thus, given DHS’s earlier judgmentthat forbearance is “especially justified” for “productive
young people” who were brought here as children
and “know only this country as home,” App. to Pet. forCert. 98a–99a, the DACA Memorandum could not be rescinded
in full “without any consideration whatsoever” of aforbearance-only policy, State Farm, 463 U. S., at 51.6

The Government acknowledges that “[d]eferred actioncoupled with the associated benefits are the two legs uponwhich 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

——————

6The three-page memorandum that established DACA is devoted entirely
to forbearance, save for one sentence directing USCIS to “determine
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 addressed
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 Memorandum
and the forbearance policy it established. But Duke’s rescission
memo shows no cognizance of this possibility.


Opinion of the Court

two. Ibid. According to the Government, “It was not arbitrary
and capricious for DHS to view deferred action and itscollateral benefits as importantly linked.” Ibid. Perhaps.
But that response misses the point. The fact that there maybe a valid reason not to separate deferred action from benefits
does not establish that DHS considered that option orthat such consideration was unnecessary.

The lead dissent acknowledges that forbearance and benefits
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’slegal 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 thecenterpiece of the policy: DACA, after all, stands for “Deferred
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 retaining
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 decision
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 cognizant
that longstanding policies may have ‘engendered serious
reliance interests that must be taken into account.’”
Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___ (2016)


DEPARTMENT OF HOMELAND SECURITY v.

(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 Dukeconsidered potential reliance interests; it counters that shedid 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 provided
benefits only in two-year increments. Reply Brief 16–
17; App. to Pet. for Cert. 125a. See also post, at 23–24 (opinion
of THOMAS, J). But neither the Government nor the lead
dissent cites any legal authority establishing that such features
automatically preclude reliance interests, and we arenot aware of any. These disclaimers are surely pertinent in
considering the strength of any reliance interests, but thatconsideration 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, DACArecipients have “enrolled in degree programs, embarked on
careers, started businesses, purchased homes, and even
married and had children, all in reliance” on the DACA program.
Brief for Respondent Regents of Univ. of California
et al. in No. 18–587, p. 41 (Brief for Regents). The consequences
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 whohave 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 andtraining replacements would cost employers $6.3 billion).


Opinion of the Court

In addition, excluding DACA recipients from the lawful labor
force may, they tell us, result in the loss of $215 billion
in economic activity and an associated $60 billion in federaltax revenue over the next ten years. Brief for Regents 6.
Meanwhile, States and local governments could lose $1.25billion in tax revenue each year. Ibid.

These are certainly noteworthy concerns, but they are not
necessarily dispositive. To the Government and lead dissent’s
point, DHS could respond that reliance on forbearance
and benefits was unjustified in light of the express limitations
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 serious,
they are but one factor to consider. DHS may determine,
in the particular context before it, that other interestsand policy concerns outweigh any reliance interests. Making
that difficult decision was the agency’s job, but the
agency failed to do it.

DHS has considerable flexibility in carrying out its responsibility.
The wind-down here is a good example of thekind of options available. Acting Secretary Duke authorized
DHS to process two-year renewals for those DACA recipients
whose benefits were set to expire within sixmonths. But Duke’s consideration was solely for the purpose
of assisting the agency in dealing with “administrativecomplexities.” App. to Pet. for Cert. 116a–118a. She should
have considered whether she had similar flexibility in addressing
any reliance interests of DACA recipients. The
lead dissent contends that accommodating such interestswould be “another exercise of unlawful power,” post, at 23
(opinion of THOMAS, J.), but the Government does not makethat 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.


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court

Had Duke considered reliance interests, she might, forexample, have considered a broader renewal period basedon the need for DACA recipients to reorder their affairs. Alternatively,
Duke might have considered more accommodating
termination dates for recipients caught in the middle
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 whenexercising 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 toexplore “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 required
to assess whether there were reliance interests, determine
whether they were significant, and weigh any suchinterests against competing policy concerns.

The lead dissent sees all the foregoing differently. In its
view, DACA is illegal, so any actions under DACA are themselves
illegal. Such actions, it argues, must cease immediately
and the APA should not be construed to impede thatresult. 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 foreclosed
or even addressed the options of retaining forbearance
or accommodating particular reliance interests. Acting
Secretary Duke should have considered those matters
but did not. That failure was arbitrary and capricious inviolation of the APA.


Opinion of ROBERTS, C. J.

IV
Lastly, we turn to respondents’ claim that the rescis-
sion violates the equal protection guarantee of the FifthAmendment.
The parties dispute the proper framing of this claim. The
Government contends that the allegation that the Executive,
motivated by animus, ended a program that disproportionately
benefits certain ethnic groups is a selective enforcement
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 (holdingthat “an alien unlawfully in this country has no constitutional
right to assert selective enforcement as a defenseagainst 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 inference
that an “invidious discriminatory purpose was a motivating
factor” in the relevant decision. Arlington Heights v.
Metropolitan Housing Development Corp., 429 U. S. 252,
266 (1977). Possible evidence includes disparate impact ona particular group, “[d]epartures from the normal procedural
sequence,” and “contemporary statements by members
of the decisionmaking body.” Id., at 266–268. Tracking
these factors, respondents allege that animus isevidenced by (1) the disparate impact of the rescission onLatinos from Mexico, who represent 78% of DACA recipients;
(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, establishes
a plausible equal protection claim. First, because
Latinos make up a large share of the unauthorized alienpopulation, one would expect them to make up an outsized


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of ROBERTS, C. J.

share of recipients of any cross-cutting immigration relief
program. See B. Baker, DHS, Office of Immigration Statistics,
Population Estimates, Illegal Alien PopulationResiding 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 sufficient
to state a claim, virtually any generally applicable immigration
policy could be challenged on equal protectiongrounds.

Second, there is nothing irregular about the history leading
up to the September 2017 rescission. The lower courts
concluded that “DACA received reaffirmation by [DHS] asrecently as three months before the rescission,” 908 F. 3d,
at 519 (quoting 298 F. Supp. 3d, at 1315), referring to theJune 2017 DAPA rescission memo, which stated that DACA
would “remain in effect,” App. 870. But this reasoning confuses
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 thatDACA 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 Dukeand the Attorney General. As the Batalla Vidal court
acknowledged, respondents did not “identif[y] statementsby [either] that would give rise to an inference of discriminatory
motive.” 291 F. Supp. 3d, at 278. Instead, respondents
contend that President Trump made critical statements
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


Opinion of the Court

raise a plausible inference that the rescission was motivated
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 requirement
that it provide a reasoned explanation for its action.
Here the agency failed to consider the conspicuous issues
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 reversed
in part. And in Batalla Vidal, No. 18–589, the February
13, 2018 order granting respondents’ motion for a
preliminary injunction is vacated, the November 9, 2017 order
partially denying the Government’s motion to dismissis 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.

——————

7Our affirmance of the NAACP order vacating the rescission makes it
unnecessary to examine the propriety of the nationwide scope of the injunctions
issued by the District Courts in Regents and Batalla Vidal.


Opinion of SOTOMAYOR, 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.


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of SOTOMAYOR, J.

The majority rightly holds that the Department of Homeland
Security (DHS) violated the Administrative Procedure
Act in rescinding the Deferred Action for Childhood Arrivals
(DACA) program. But the Court forecloses any challenge
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 protection
claims on remand.

Respondents’ equal protection challenges come to us in apreliminary posture. All that respondents needed to do at
this stage of the litigation was state sufficient facts thatwould “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 evaluate
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 remand.
The complaints each set forth particularized facts
that plausibly allege discriminatory animus. The plurality
disagrees, reasoning that “[n]one of these points, either singly
or in concert, establishes a plausible equal protection
claim.” Ante, at 27. But it reaches that conclusion by discounting
some allegations altogether and by narrowly viewing
the rest.

First, the plurality dismisses the statements that President
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 (internal
quotation marks omitted). The Regents complaints ad



ditionally quote President Trump’s 2017 statement comparing
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. Hawaii,
585 U. S. ___, ___, n. 3 (2018) (SOTOMAYOR, J., dissenting)
(slip op., at 11, n. 3). Nor did any of the statements
arise in unrelated contexts. They bear on unlawful migration
from Mexico—a keystone of President Trump’s campaign
and a policy priority of his administration—and, according
to respondents, were an animating force behind therescission of DACA. Cf. ibid. (noting that Presidential Proclamation
No. 9645, 82 Fed. Reg. 45161 (2017), which barredentry of individuals from several Muslim-majority countries,
was an outgrowth of the President’s campaign statements
about Muslims). Taken together, “the words of thePresident” help to “create the strong perception” that the
rescission decision was “contaminated by impermissiblediscriminatory animus.” 585 U. S., at ___ (opinion of
SOTOMAYOR, J.) (slip op., at 13). This perception providesrespondents with grounds to litigate their equal protection
claims further.

Next, the plurality minimizes the disproportionate impact
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 immigration
policy could be challenged on equal protectiongrounds”). 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


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of SOTOMAYOR, J.

stage, I would not so readily dismiss the allegation that anexecutive decision disproportionately harms the same racial
group that the President branded as less desirable mere
months earlier.

Finally, the plurality finds nothing untoward in the “specific
sequence of events leading up to the challenged decision.”
Arlington Heights v. Metropolitan Housing Development
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 Deferred
Action for Parents of Americans and Lawful Permanent
Residents. App. 718–720. But a mere three months
later, DHS terminated DACA without, as the pluralityacknowledges, considering important aspects of the termination.
The abrupt change in position plausibly suggests
that something other than questions about the legality of
DACA motivated the rescission decision. Accordingly, itraises the possibility of a “significant mismatch between the
decision . . . made and the rationale . . . provided.” Department
of Commerce v. New York, 588 U. S. ___, ___ (2019)
(slip op., at 26). Only by bypassing context does the plurality
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 amountto actionable discrimination should be determined only after
factual development on remand. Because the Court
prematurely disposes of respondents’ equal protectionclaims by overlooking the strength of their complaints, Ijoin all but Part IV of the opinion and do not concur in thecorresponding part of the judgment.


Opinion of THOMAS, 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.


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of THOMAS, J.

Between 2001 and 2011, Congress considered over twodozen bills that would have granted lawful status to millions
of aliens who were illegally brought to this country aschildren. Each of those legislative efforts failed. In the
wake of this impasse, the Department of Homeland Security
(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 asDeferred Action for Childhood Arrivals (DACA). The three-
page DACA memorandum made it possible for approximately
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 Acting
Secretary of Homeland Security, acting through yet another
memorandum, rescinded the DACA memorandum.
To state it plainly, the Trump administration rescinded
DACA the same way that the Obama administration created
it: unilaterally, and through a mere memorandum.

Today the majority makes the mystifying determination
that this rescission of DACA was unlawful. In reachingthat conclusion, the majority acts as though it is engagingin the routine application of standard principles of administrative
law. On the contrary, this is anything but a standard
administrative law case.

DHS created DACA during the Obama administrationwithout any statutory authorization and without going
through the requisite rulemaking process. As a result, the
program was unlawful from its inception. The majoritydoes not even attempt to explain why a court has the authority
to scrutinize an agency’s policy reasons for rescinding
an unlawful program under the arbitrary and capricious
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.


Opinion of THOMAS, J.

Today’s decision must be recognized for what it is: an effort
to avoid a politically controversial but legally correctdecision. 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 battles
to be fought in this Court rather than where they rightfully
belong—the political branches. Such timidity forsakesthe Court’s duty to apply the law according to neutral principles,
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 administrations.
Under the auspices of today’s decision, administrations
can bind their successors by unlawfullyadopting significant legal changes through ExecutiveBranch agency memoranda. Even if the agency lacked authority
to effectuate the changes, the changes cannot be undone
by the same agency in a successor administration unless
the successor provides sufficient policy justifications tothe satisfaction of this Court. In other words, the majorityerroneously holds that the agency is not only permitted, butrequired, to continue administering unlawful programsthat it inherited from a previous administration. I respectfully
dissent in part.1

I
A

In 2012, after more than two dozen attempts by Congressto grant lawful status to aliens who were brought to this
country as children,2 the then-Secretary of Homeland Security
Janet Napolitano announced, by memorandum, a new

——————
1I concur in the judgment insofar as the majority rejects respondents’
equal protection claim.
2See Immigrant Children’s Educational Advancement and Dropout


DEPARTMENT OF HOMELAND SECURITY v.

“prosecutorial discretion” policy known as DACA. App. to
Pet. for Cert. in No. 18–587, p. 97a. The memorandum directed
immigration enforcement officers not to remove “certain
young people who were brought to this country as children”
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 action”
that made approximately 1.7 million otherwise removable
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, including
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 Adjustment
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.; Comprehensive
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 Actof 2007, S. 2205, 110th Cong., 1st Sess.; STRIVE Act of 2007, H. R. 1645,
110th Cong., 1st Sess., Tit. VI, Subtitle B; Comprehensive ImmigrationReform Act of 2007, S. 1348, 110th Cong., 1st Sess., Tit. VI, Subtitle C;
DREAM Act of 2009, S. 729, 111th Cong., 1st Sess.; American DreamAct, H. R. 1751, 111th Cong., 1st Sess.; Comprehensive Immigration Reform
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.; DREAMAct of 2010, H. R. 6497, 111th Cong., 2d Sess.; DREAM Act of 2011, S.
952, 112th Cong., 1st Sess.

3See J. Passel & M. Lopez, Pew Research Center, Up to 1.7 MillionUnauthorized Immigrant Youth May Benefit From New Deportation
Rules (Aug. 14, 2012).


Opinion of THOMAS, J.

§1324a(h)(3)(B); 8 CFR §274a.12(c)(14). Despite thesechanges, 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. inNo. 18–587, at 101a.

In 2014, then-Secretary of Homeland Security Jeh Johnson
broadened the deferred-action program in yet anotherbrief memorandum. This 2014 memorandum expandedDACA eligibility by extending the deferred-action period to
three years and by relaxing other criteria. It also implemented
a related program, known as Deferred Action forParents of Americans and Lawful Permanent Residents
(DAPA). DAPA allowed unlawfully present parents to obtain
deferred action derivatively through their children who
were either citizens or lawful permanent residents. Approximately
4.3 million aliens qualified for DAPA and, aswith 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 memorandum
repeated the incongruous assertion that these programs
“d[id] not confer any form of legal status in this country”
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 Administrative
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 legislative
rule that had to comply with the APA’s notice and


DEPARTMENT OF HOMELAND SECURITY v.

comment procedures. The States also argued that DHS’ decision
to recategorize an entire class of aliens from “unlawfully
present” to “lawfully present” exceeded its statutory
authority under the federal immigration laws. Accordingto the States, these defects rendered the 2014 memorandum
arbitrary, capricious, or otherwise not in accordance
with law.

The District Court preliminarily enjoined DAPA and expanded
DACA. The Fifth Circuit affirmed, rejecting DHS’
claim that the programs were an exercise of prosecutorialdiscretion. Texas, 809 F. 3d, at 167, 188. The court concluded
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” becausethe INA did not grant DHS the statutory authority to implement
either program. Id., at 170, 178–186.

This Court affirmed the Fifth Circuit’s judgment by anequally 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 GeneralJefferson 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 Congress.”
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 bySeptember 5, 2017.
On September 4, then-Attorney General Sessions wroteto then-Acting Secretary of Homeland Security Elaine


Opinion of THOMAS, J.

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 established
end-date, after Congress’ repeated rejection of
proposed legislation that would have accomplished a similar
result. Such an open-ended circumvention of immigration
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 began
by noting that DACA “purported to use deferred action
. . . to confer certain benefits to illegal aliens that Congresshad not otherwise acted to provide by law.” App. to Pet. for
Cert. in No. 18–587, at 112a. It described the history of theFifth 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 present.”
Id., at 114a (internal quotation marks omitted). Finally,
the memorandum accepted then-Attorney GeneralSessions’ legal determination that DACA was unlawful for
the same reasons as DAPA. See §1103(a)(1). In light of thelegal conclusions reached by the Fifth Circuit and the Attorney
General, then-Acting Secretary Duke set forth the
procedures for winding down DACA.

These three cases soon followed. In each, respondentsclaimed, 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


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of THOMAS, J.

until Congress confers power upon it.’” Arlington v. FCC,
569 U. S. 290, 317 (2013) (ROBERTS, C. J., dissenting) (quoting
Louisiana Pub. Serv. Comm’n v. FCC, 476 U. S. 355,
374 (1986)). When an agency exercises power beyond thebounds 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 providesa poignant illustration of ultra vires agency action.

DACA alters how the immigration laws apply to a certain
class of aliens. “DACA [recipients] primarily entered thecountry 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. 3d662, 713 (SD Tex. 2018) (footnote omitted). But DACA
granted its recipients deferred action, i.e., a decision to “decline
to institute [removal] proceedings, terminate [removal]
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 marksomitted). Under other regulations, recipients of deferredaction are deemed lawfully present for purposes of certain
federal benefits. See supra, at 4. Thus, DACA in effect created
a new exception to the statutory provisions governingremovability and, in the process, conferred lawful presenceon an entire class of aliens.

To lawfully implement such changes, DHS needed a
grant of authority from Congress to either reclassify removable
DACA recipients as lawfully present, or to exempt the
entire class of aliens covered by DACA from statutory removal
procedures. No party disputes that the immigrationstatutes lack an express delegation to accomplish either result.
And, an examination of the highly reticulated immigration
regime makes clear that DHS has no implicit discretion
to create new classes of lawful presence or to grantrelief from removal out of whole cloth. Accordingly, DACA
is substantively unlawful.


This conclusion should begin and end our review. The
decision to rescind an unlawful agency action is per se lawful.
No additional policy justifications or considerations are
necessary. And, the majority’s contrary holding—that anagency 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 entireclass of removable aliens as lawfully present or to categorically
exempt aliens from statutory removal provisions.

1
I begin with lawful presence. As just stated, nothing inthe federal immigration laws expressly delegates to DHSthe unfettered discretion to create new categories of lawfully
present aliens. And, there is no basis for concluding
that Congress implicitly delegated to DHS the power to reclassify
categories of aliens as lawfully present. The immigration
statutes provide numerous ways to obtain lawfulpresence, both temporary and permanent. The highly detailed
nature of these provisions indicates that Congresshas 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 60temporary nonimmigrant visa options, including visas for
ambassadors, full-time students and their spouses and children,
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 Congressional
Research Service, J. Wilson, Nonimmigrant and Immigrant
Visa Categories: Data Brief 1–6 (2019) (Table 1).
In addition, the statutes permit the Attorney General togrant temporary “parole” into the United States “for urgent


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 acountry with an ongoing armed conflict “would pose a serious
threat to [an alien’s] personal safety,” §1254a(b)(1)(A);
and allow the Secretary of Homeland Security (in consultation
with the Secretary of State) to waive visa requirementsfor 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 useto become lawful permanent residents. §§1201, 1255(a).
Among other categories, immigrant visas are available tospecified family-sponsored aliens, aliens with advanced degrees
or exceptional abilities, certain types of skilled and
unskilled workers, “special immigrants,” and those entering
the country to “engag[e] in a new commercial enterprise.”
§§1153(a)–(b), 1154; see also Congressional Research
Service, Nonimmigrant and Immigrant Visa
Categories, at 6–7 (Table 2). Refugees and asylees also may
receive lawful permanent residence under certain conditions,
§1159; 8 CFR §§209.1, 209.2.4 As with temporary
lawful presence, each avenue to lawful permanent residence
status has its own set of rules and exceptions.5

As the Fifth Circuit held in the DAPA litigation, a conclusion
with which then-Attorney General Sessions agreed,
“specific and detailed provisions[ of] the INA expressly and

——————

4The immigration statutes also provide for conditional lawful permanent
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).

5For instance, Congress has carved out rules for aliens who served inthe Armed Forces, §§1438–1440, and alien spouses who have been subject
to domestic abuse, §§1186a(c)(4)(C)–(D).


carefully provid[e] legal designations allowing defined classes
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 establishes
that Congress left DHS with no discretion to create
an additional class of aliens eligible for lawful presence.
Congress knows well how to provide broad discretion, andit has provided open-ended delegations of authority in statutes
too numerous to name. But when it comes to lawful
presence, Congress did something strikingly different. Instead
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 governing
eligibility for lawful presence. This comprehensivescheme indicates that DHS has no discretion to supplementor amend the statutory provisions in any manner, least of
all by memorandum. See FDA v. Brown & Williamson Tobacco
Corp., 529 U. S. 120, 125 (2000) (An agency “may not
exercise its authority in a manner that is inconsistent withthe administrative structure that Congress enacted” (internal
quotation marks omitted)); see also ETSI Pipeline Project
v. Missouri, 484 U. S. 495, 509–510 (1988).

2
The relief that Congress has extended to removable aliens
likewise confirms that DACA exceeds DHS’ delegatedauthority. Through deferred action, DACA grants temporary
relief to removable aliens on a programmatic scale.
See Texas, 328 F. Supp. 3d, at 714. But as with lawful presence,
Congress did not expressly grant DHS the authority
to create categorical exceptions to the statute’s removal requirements.
And again, as with lawful presence, the intricate
level of detail in the federal immigration laws regarding
relief from removal indicates that DHS has no
discretionary authority to supplement that relief with an


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of THOMAS, J.

entirely new programmatic exemption.

At the outset, Congress clearly knows how to provide for
classwide deferred action when it wishes to do so. On multiple
occasions, Congress has used express language to
make certain classes of individuals eligible for deferred action.
See 8 U. S. C. §§1154(a)(1)(D)(i)(II), (IV) (certain individuals
covered under the Violence Against Women Act are
“eligible for deferred action”); Victims of Trafficking and Violence
Protection Act of 2000, 114 Stat. 1522 (“‘Any individual
described in subclause (I) is eligible for deferred action’”);
Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
(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 provisions
for DACA recipients, and the immigration laws contain
no indication that DHS can, at will, create its own
categorical policies for deferred action.

Other provisions pertaining to relief from removal further
demonstrate that DHS lacked the delegated authority

——————

6In the DAPA litigation, DHS noted that some deferred-action programs
have been implemented by the Executive Branch without explicitlegislation. 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 hadbeen 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-actionprograms 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.


to create DACA. As with lawful presence, Congress hasprovided a plethora of methods by which aliens may seekrelief from removal. For instance, both permanent and
temporary residents can seek cancellation of removal if
they meet certain residency requirements and have notcommitted 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 committed
certain crimes. §§1158, 1231(b)(3). Applicants for
certain nonimmigrant visas may be granted a stay of removal
until the visa application is adjudicated. §1227(d).
And, aliens may voluntarily depart rather than be subjectto an order of removal. §1229c.

In sum, like lawful presence, Congress has provided for
relief from removal in specific and complex ways. This nuanced
detail indicates that Congress has provided the fullpanoply of methods it thinks should be available for an alien
to seek relief from removal, leaving no discretion to DHSto provide additional programmatic forms of relief.7

3

Finally, DHS could not appeal to general grants of authority,
such as the Secretary’s ability to “perform suchother acts as he deems necessary for carrying out his authority
under the provisions of this chapter,” §1103(a)(3), or
to “[e]stablis[h] national immigration enforcement policiesand priorities,” 6 U. S. C. §202(5). See also 8 U. S. C.
§1103(g)(2). Because we must interpret the statutes “as a

——————

7It is uncontested that deferred action frequently occurs on a case-bycase
basis, often justified on the grounds that the agency lacks resources
to remove all removable aliens. Even assuming that these ad hoc exercises
of discretion are permissible, however, we have stated that “[a]nagency 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).


DEPARTMENT OF HOMELAND SECURITY v.

symmetrical and coherent regulatory scheme,” Gustafson v.
Alloyd Co., 513 U. S. 561, 569 (1995), these grants of authority
must be read alongside the express limits contained
within the statute. Basing the Secretary’s ability to completely
overhaul immigration law on these general grantsof 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 position
in light of the INA’s intricate system,” ibid., but it
would also render many of those provisions wholly superfluous
due to DHS’ authority to disregard them at will,
Duncan v. Walker, 533 U. S. 167, 174 (2001). And in addition
to these fatal problems, adopting a broad interpretation
of these general grants of authority would run afoul of
the presumption that “Congress . . . does not alter the fundamental
details of a regulatory scheme in vague terms orancillary 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 basedon the expectation that Congress speaks clearly when it delegates
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 quotationmarks omitted); see also Texas, 787 F. 3d, at 760–761.

Read together, the detailed statutory provisions governing
temporary and lawful permanent resident status, relief
from removal, and classwide deferred-action programs leadineluctably 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 Sessionsagreed, “[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


Opinion of THOMAS, J.

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 administrative
state. It defies all logic and common sense to conclude
that a statutory scheme detailed enough to provide
conditional lawful presence to groups as narrowly definedas “alien entrepreneurs,” §1186b, is simultaneously capacious
enough for DHS to grant lawful presence to almost
two million illegal aliens with the stroke of a Cabinet secretary’s
pen.

B
Then-Attorney General Sessions concluded that the initial
DACA program suffered from the “same legal . . . defects”
as DAPA and expanded DACA, finding that, likethose programs, DACA was implemented without statutoryauthority. App. 877–878. Not only was this determinationcorrect, 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 unlawfulness
of that program is a sufficient justification for its rescission.
The majority opts for a different path, all but ignoringDACA’s substantive legal defect. See ante, at 18–19. On
the majority’s understanding of APA review, DHS was required
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] isconspicuously absent from the Court’s opinion.” Massachusetts
v. EPA, 549 U. S. 497, 536 (2007) (ROBERTS, C. J., dissenting).
The lack of support for the majority’s position is hardly


DEPARTMENT OF HOMELAND SECURITY v.

surprising in light of our Constitution’s separation of powers.
No court can compel Executive Branch officials to exceed
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 agencyaction, our role is to ensure that Executive Branch officials
do not transgress the proper bounds of their authority, Arlington,
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 authority
that Congress has chosen to delegate to it. See UARG,
573 U. S., at 327. In implementing DACA, DHS under theObama 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 compelling
reason to rescind DACA: The program was unlawfuland would force DHS to continue acting unlawfully if it carried
the program forward.

III
The majority’s demanding review of DHS’ decisionmaking
process is especially perverse given that the 2012 memorandum
flouted the APA’s procedural requirements—thevery requirements designed to prevent arbitrary decisionmaking.
Even if DHS were authorized to create DACA,
it could not do so without undertaking an administrativerulemaking. The fact that DHS did not engage in this process
likely provides an independent basis for rescinding


Opinion of THOMAS, J.

DACA. But at the very least, this procedural defect compounds
the absurdity of the majority’s position in these
cases.

As described above, DACA fundamentally altered the immigration
laws. It created a new category of aliens who, asa 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 quotation
marks omitted).

Our precedents allow the vast majority of legislativerules to proceed through so-called “informal” notice andcomment 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. Kisor
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 under
the Medicare Act). These procedures specify that theagency “shall” publish a notice of proposed rulemaking in
——————

8The 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).

9As 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 judgment).



DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of THOMAS, J.

the Federal Register, justify the rule by reference to legalauthority, 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 ___ (opinion
of GORSUCH, J.) (slip op., at 17). As we have recognizedrecently, use of the word “shall” indicates that these procedures
impose mandatory obligations on the agency before it
can adopt a valid binding regulation. See Maine Community
Health Options v. United States, 590 U. S. ___, ___
(2020) (slip op., at 12). After undergoing notice and comment,
the agency then publishes the final rule, which must
“articulate a satisfactory explanation for [the] action including
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 itwanted to promulgate a legislative rule. It is undisputed,
however, that DHS did not do so. It provided no opportunity
for interested parties to submit comments regarding
the effect that the program’s dramatic and very significantchange in immigration law would have on various aspectsof society. It provided no discussion of economic considerations
or national security interests. Nor did it provide anysubstantial policy justifications for treating young people

——————

10The APA also provides certain exceptions from notice and comment
rulemaking. For example, an agency may promulgate a legally bindingrule 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 procedures
altogether.


brought to this country differently from other classes of aliens
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 assertion
that DACA was consistent with existing law. Because
DHS failed to engage in the statutorily mandatedprocess, DACA never gained status as a legally binding regulation
that could impose duties or obligations on third parties.
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 DHSneeded to provide any explanation whatsoever when it decided
to rescind DACA. Nothing in the APA suggests that
DHS was required to spill any ink justifying the rescissionof 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 thoughit were legitimate. As just explained, such a requirement
is not supported by the APA.11 It is also absurd, as evidenced
by its application to DACA in these cases. The majority
insists that DHS was obligated to discuss its choices
regarding benefits and forbearance in great detail, even

——————

11Thus, 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.


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of THOMAS, J.

though no such detailed discussion accompanied DACA’s issuance.
And, the majority also requires DHS to discuss reliance
interests at length, even though deferred action traditionally
does not take reliance interests into account and
DHS was not forced to explain its treatment of reliance interests
in the first instance by going through notice and
comment. See infra, at 23–24. The majority’s demand forsuch 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 sufficient
to justify its rescission.12 By requiring more, the majority
has distorted the APA review process beyond recognition,
further burdening all future attempts to rescindunlawful programs. Plaintiffs frequently bring successfulchallenges to agency actions by arguing that the agency hasimpermissibly dressed up a legislative rule as a policy statement
and must comply with the relevant procedures beforefunctionally 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); National
Family Planning & Reproductive Health Assn., Inc.
v. Sullivan, 979 F. 2d 227 (CADC 1992). But going forward,
when a rescinding agency inherits an invalid legislativerule that ignored virtually every rulemaking requirement
of the APA, it will be obliged to overlook that reality. Instead
of simply terminating the program because it did notgo through the requisite process, the agency will be compelled
to treat an invalid legislative rule as though it were
legitimate.13


——————

12I express no view on what other reasons would justify an agency’s
decision to rescind a procedurally unlawful action. I merely point outthat correctly concluding that the program was illegal is sufficient.

13In my view, even if DACA were permitted under the federal immigration
laws and had complied with the APA, it would still violate theConstitution as an impermissible delegation of legislative power. See


Opinion of THOMAS, J.

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 decision
still fail.

A
First, the majority claims that the Fifth Circuit discussed
only the legality of the 2014 memorandum’s conferral ofbenefits, not its “forbearance component”—i.e., the decision
not to place DACA recipients into removal proceedings.
Ante, at 20. The majority, therefore, claims that, notwithstanding
the then-Attorney General’s legal conclusion,
then-Acting Secretary Duke was required to consider revoking
DACA recipients’ lawful presence and other attendant
benefits while continuing to defer their removal.
Ante, at 22–23. Even assuming the majority correctly characterizes
the Fifth Circuit’s opinion, it cites no authority forthe proposition that arbitrary and capricious review requires
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 atleast attempts to provide a “surrogate political process” that takes someof 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).

14The majority’s interpretation of the Fifth Circuit’s opinion is highly
questionable. Because a grant of deferred action renders DACA recipients
eligible for certain benefits and work authorization, it is far fromclear that the Department could separate DACA’s “forbearance component”
from the major benefits it conferred without running into yet another
APA problem. The majority points to the fact that, under the Patient
Protection and Affordable Care Act of 2010, relevant regulationsexclude those receiving deferred action through DACA from coverage.


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of THOMAS, J.

The then-Attorney General reviewed the thorough decisions
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 statutes,
the historical practice of deferred action, and the general
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’slegal analysis and rescinded the program. This legal conclusion
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 thisapproach is inconsistent with State Farm. See ante, at 21–

22. But in doing so, the majority ignores the fact that, unlike
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 process
applie[d]” for those benefits. See 77 Fed. Reg. 52616 (2012). Bycontrast, DACA recipients have been eligible for and have received Medicare,
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 ofdeferred action who have previously received such benefits may no longerreceive 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 subject
to serious arbitrary and capricious challenges.


Opinion of THOMAS, J.

State Farm, DACA is unlawful. Neither State Farm nor
any other decision cited by the majority addresses what anagency 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 excisethe “unlawful policy” aspect from its discussion.

B
Second, the majority claims that DHS erred by failing totake 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 agencylacked 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 engaging
in yet another exercise of unlawful power if it used reliance
interests to justify continuing the initially unlawfulprogram, and a court would be obligated to set aside thataction.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 majority
does not dispute, the rescission is consistent with howdeferred action has always worked. As a general matter,
deferred action creates no rights—it exists at the Government’s
discretion and can be revoked at any time. See App.

——————

15The majority contends that this argument does not carry force because
the rescission implemented a winddown period during which recipients
would continue to receive benefits. But whether DHS’ decision
to wind down DACA was lawful is a separate question from whetherDHS was required to consider reliance interests before discontinuing anunlawful program.


DEPARTMENT OF HOMELAND SECURITY v.

to Pet. for Cert. in No. 18–587, at 104a (DACA and expanded
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’sRepublic of China). The Government has made clear time
and again that, because “deferred action is not an immigration
status, no alien has the right to deferred action. It is
used solely in the discretion of the [Government] and confers
no protection or benefit upon an alien.” DHS Immigration
and Customs Enforcement Office of Detention and Removal,
Detention and Deportation Officers’ Field Manual
§20.8 (Mar. 27, 2006); see also Memorandum from D. Meissner,
Comm’r, INS, to Regional Directors et al., pp. 11–12(Nov. 17, 2000); Memorandum from W. Yates, Assoc. Director
of Operations, DHS, Citizenship and Immigration
Servs., to Director, Vt. Serv. Center, p. 5 (2003). Thus, contrary
to the majority’s unsupported assertion, ante, at 23,
this longstanding administrative treatment of deferred action
provides strong evidence and authority for the proposition
that an agency need not consider reliance interests inthis context.16

Finally, it is inconceivable to require DHS to study reliance
interests before rescinding DACA considering how theprogram was previously defended. DHS has made clear
since DACA’s inception that it would not consider such reliance
interests. Contemporaneous with the DACA memo,
DHS stated that “DHS can terminate or renew deferred action
at any time at the agency’s discretion.” Consideration

——————

16The majority’s approach will make it far more difficult to changedeferred-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-consumingrulemakings.


Opinion of THOMAS, J.

of Deferred Action for Childhood Arrivals Process, 89 Interpreter
Releases 1557, App. 4, p. 2 (Aug. 20, 2012). In fact,
DHS repeatedly argued in court that the 2014 memorandum
was a valid exercise of prosecutorial discretion in part
because deferred action created no rights on which recipients
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 discretion
to revoke deferred action unilaterally, without noticeor 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 provides
yet one more example of a deficiency in DACA’s issuance,
not its rescission.

* * *
President Trump’s Acting Secretary of Homeland Security
inherited a program created by President Obama’s Secretary
that was implemented without statutory authorityand without following the APA’s required procedures.
Then-Attorney General Sessions correctly concluded thatthis 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 required
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 deficiencies
and provide additional policy reasons and justifications
before restoring the rule of law. This holding is incorrect,
and it will hamstring all future agency attempts to
undo actions that exceed statutory authority. I would


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of THOMAS, J.

therefore reverse the judgments below and remand with instructions
to dissolve the nationwide injunctions.


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


DEPARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of ALITO, J.

now plays in our constitutional system should considerwhat has happened in these cases. Early in the term of thecurrent President, his administration took the controversial
step of attempting to rescind the Deferred Action forChildhood 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, without
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 delicate
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 overturning
its rescission. First, to the extent DACA represented
a lawful exercise of prosecutorial discretion, its rescission
represented an exercise of that same discretion,
and it would therefore be unreviewable under the Administrative
Procedure Act. 5 U. S. C. §701(a)(2); see Heckler v.
Chaney, 470 U. S. 821, 831–832 (1985). Second, to the extent
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 thejudgment in part and dissenting in part).


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.


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


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


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


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


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


of the Nielsen Memorandum, perhaps with some elabora-
tion as suggested in the Court’s opinion. Ante, at 23–26.

* 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).

* * *

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-


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.