DACA Was Fully Reinstated Nationwide, Last Week, While I Was In The Rockies…

While we wait to see whether Sec’y. Nielsen and AG Sessions will be held in contempt (in the US District Court for DC) later today by the capable Judge Emmet G. Sullivan, I will begin to “catch up” — on the important victories won by the NAACP, and the ACLU, whilst I was off-grid, last week — in the migrant rights arena.

Chief among these is Judge Bates’ thoughtful decision completely reinstating DACA, based largely on Ms. Nielsen’s refusal to seriously weigh the important reliance interests at stake in her decision. People who had relied on a governmental promise, and changed the entire arc of their lives were suddenly dumped into the street. That, the jurisprudence of the fourteenth amendment will not countenance. We are not. . . Russia.

And so, here is the full 25 page opinion as a PDF file — and a bit of the meat of it:

. . . .Although this time around the Nielsen Memo at least “acknowledge[s] how heavily DACA beneficiaries had come to rely on” the program, id., it does little more than that. Instead of considering DACA’s benefits to DACA recipients and to society at large, see Pls.’ Opp’n at 19–20, Secretary Nielsen simply states that “the asserted reliance interests” are outweighed by DACA’s “questionable legality . . . and the other reasons for ending the policy,” and then goes on to suggest that she should not even have to consider those interests. See id. (asserting that “issues of reliance would be best considered by Congress”). However, it is not up to Secretary Nielsen — or even to this Court — to decide what she should or should not consider when reversing agency policy. Rather, the requirements are set by the APA, as interpreted by the Supreme Court: “When an agency changes its existing position, it . . . must . . . be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016).

Like the Duke Memo, the Nielsen Memo demonstrates no true cognizance of the serious reliance interests at issue here — indeed, it does not even identify what those interests are. “It would be arbitrary and capricious to ignore such matters,” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1209 (2015) (citation omitted), and it is so here. Nor, given the inadequacy of the Nielsen Memo’s explanation of why DACA is unlawful, can the Court accept as sufficient its bare determination that any reliance interests are outweighed by “the questionable legality of the DACA policy and the other” fatally intertwined reasons listed in the memo. Nielsen Memo at 3. Because the Nielsen Memo fails to provide an adequate justification for the decision to rescind DACA — much less the “more substantial justification” that the APA requires when an agency’s “prior policy has engendered serious reliance interests,” Perez, 135 S. Ct. at 1209—the Court sees no reason to change its earlier determination that DACA’s rescission was arbitrary and capricious. . . .

Now you know. Onward — with three more migrant human rights decisions to cover, after the Parker Solar probe mission (named for a living U of C astrophysicist) lifts off, tomorrow.

On Sunday and Monday, we will be busy moving an adult son’s apartment — and finishing his post op details, but will get to those cases in due course. Tuesday is a delicious hooky day — with an afternoon Cubs game in the friendly confines, meeting long time chums.



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