This Term: DACA Survives but Apodaca Does Not

In a somewhat surprising and so welcome result, Chief Justice John Roberts wrote the Supreme Court’s opinion in Department of Homeland Security v. Regents of Univ. of Cal., No. 18-587 (U.S. June 18, 2020), this week.

The Court (5-4) concluded that then-Acting Secretary Elaine Duke’s decision to rescind the program known as Deferred Action for Childhood Arrivals (DACA) was both (a) reviewable under the Administrative Procedure Act (APA) and within the Court’s jurisdiction and (b) arbitrary and capricious under that Act.

Quite notably, his opinion—based in part on the Acting Secretary’s failing to address forbearance and reliance—marked a reversal from his questioning during oral argument whether forbearance was even at issue. This suggests that he may weighed heavily the respondents’ supplemental briefing addressing those two issues. The news bring some certainly to the hundreds of thousands of young people in the program, at least for now.

The APA is an incredibly powerful tool for keeping the government honest. As the Chief wrote, invoking Justices Oliver Wendell Holmes Jr. and Hugo Black, not only “must [men] turn square corners when they deal with the Government,” but “the Government should turn square corners in dealing with the people.” Regents, slip op. at 17 (internal citations and quotation marks omitted).

As for the headline, earlier this term, the Court overruled the plurality’s holding in Apodaca v. Oregon, 406 U.S. 404 (1972), when it concluded that the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense. Ramos v. Louisiana, No. 18-5924 (U.S. Apr. 20, 2020).

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