Department of Homeland Security v. Regents of Univ. of Cal. (18-587)
argument 18-587Department of Homeland Security v. Regents of Univ. of Cal.
Supreme Court of the United States
1h 22m
6 speakers
8 chapters
transcribed 8 days ago
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Transcript
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What is the legal basis for the Department of Homeland Security’s decision to rescind DACA?
We'll hear argument first this morning in case eighteen five eighty seven, the Department of Homeland Security versus Regents of the University of California and the related cases. General
Francisco? Mr. Chief Justice, and may it please the court. In twenty seventeen, the Fifth Circuit held that DAPA and the expansion of DACA were likely unlawful, a judgment this court affirmed by an equally divided court. In the face of those decisions, the Department of Homeland Security reasonably determined that it no longer wished to retain the DACA policy. based on its belief that the policy was illegal. its serious doubts about its illegality and its general opposition to broad non enforcement policies. That decision did not violate the APA for two reasons. First, it is not subject to judicial review. The rescission simply ended a previous non enforcement policy whereby the Department agreed to not enforce the INA against hundreds of thousands of illegal aliens.
But the decision whether or not to enforce the law is committed to the agency's unreviewable discretion unless a statute restricts it. And nothing in the INA requires the department a law enforcement agency. to not enforce the law. Second, the decision to end this non enforcement policy was eminently reasonable. DACA was a temporary stopgap measure that on its face could be rescinded at any time. And the department's reasonable concerns about its legality. and its general opposition to broad non enforcement policies provided more than a reasonable basis for ending it. After all, an agency isn't required to push its legally dubious power to not enforce the law. to its logical extreme. Since it undermines confidence in the rule of law itself.
and it conflicts with the agency's law enforcement mission. I'd like to begin with the reviewability question. If the Attorney General were to say that he wasn't going to seek death penalty prosecutions because he thought the death penalty was unconstitutional, that would be immune from judicial review. And if a new Attorney General came in and reversed that policy because he believed that the death penalty was constitutional, that would likewise be immune from judicial review.
General Francisco Des. Um a strange element to your argument because you're arguing this is a discretionary matter It's not reviewable because it's committed to agency discretion. But on the other hand, you say The agency had no discretion Because this programme was illegal. In other words, the law requires you to drop. DACA. So how can it be committed to your discretion when you're saying we have no discretion, this is an illegal program?
For two reasons, Your Honor. First, we put forward both legal and policy reasons for the rescission. So this case is on all fours with Cheney, where the FDA likewise put forth legal and policy reasons. Its principal argument was that it lacked jurisdiction to regulate state use of drugs in carrying out the debt penalty. Its alternative argument was that even if it had the legal authority to do so, it wouldn't have exercised it. It and this court found that that decision was committed to the agency's unreviewable discretion. Here we are likewise making alternative legal and policy arguments. But secondly, I think that's a good question. Secondly, even if we were making purely a legal argument, and we're not, but even if we were, review would be foreclosed by this court's decision in BLE.
What the BLE case held was that if an action is committed to an agency's unreviewable discretion, then it doesn't matter what reason it gives for taking that action, it is still unreviewable. And the specific example this court provided in BLE was a prosecutor who decided not to to indict for a purely legal reason. And the court indicated that that was still unreviewable because the underlying action, the enforcement discretion, was committed to the agency's unreviewable discretion. So here we think we win under Cheney and we also think we win under BLE.
What if the Attorney General said he in his exercise of prosecutorial discretion was not going to enforce any of the immigration laws?
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Chapters
8 chapters
1
What is the legal basis for the Department of Homeland Security’s decision to rescind DACA?
0:00–9:21
2
How does the Court’s Chevron/Heckler precedent affect reviewability of agency non‑enforcement policies?
9:21–19:40
3
Why do the government and petitioners argue that the rescission is unreviewable under the APA?
19:40–29:17
4
What role do reliance interests play in determining whether the DACA rescission is reviewable?
29:17–40:34
5
How does the Nielsen memorandum attempt to satisfy the requirement for a reasoned explanation?
40:34–51:45
6
What arguments do the parties make about the legality versus policy grounds for ending DACA?
51:45–1:02:55
7
How might a remand clarify the agency’s discretion and the adequacy of its explanation?
1:02:55–1:13:12
8
What would a Supreme Court ruling on reviewability mean for future immigration enforcement discretion?
1:13:12–1:22:58