In 2012, DHS under Secretary Napolitano announced DACA, a policy of case-by-case forbearance from removal for certain noncitizens who came to the United States as children and met specified criteria. Approved recipients received deferred action and, pursuant to existing regulations, became eligible for work authorization and certain benefits. In 2014, DHS announced Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expanded DACA; a coalition of states challenged those policies. The Fifth Circuit affirmed a nationwide preliminary injunction against DAPA and expanded DACA, concluding that the benefits component likely violated the Immigration and Nationality Act and required notice-and-comment rulemaking. The Supreme Court affirmed by an equally divided Court. In September 2017, after the Attorney General advised that DACA shared the same legal defects as DAPA, Acting DHS Secretary Duke issued a memorandum rescinding DACA in its entirety, citing the Fifth Circuit's DAPA decision and the Attorney General's letter. Multiple plaintiffs—including the Regents of the University of California, states, individuals, and organizations—sued, alleging APA and constitutional violations. The district courts enjoined the rescission and the Ninth and D.C. Circuits largely affirmed. During the litigation, Secretary Nielsen issued a 2018 memorandum elaborating policy reasons for rescission. The Supreme Court granted certiorari to review whether the rescission was reviewable and lawful under the APA and whether it violated equal protection.
1) Is DHS's decision to rescind DACA reviewable under the APA, or is it committed to agency discretion by law? 2) If reviewable, did DHS provide a reasoned explanation for rescinding DACA as required by the APA's arbitrary-and-capricious standard, including consideration of reasonable alternatives and reliance interests? 3) Did plaintiffs plausibly allege an equal protection violation based on discriminatory animus?
Under the APA, a reviewing court must set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, 5 U.S.C. § 706(2)(A). An agency changing policy must show awareness of the change and provide good reasons for it, and when prior policy has engendered serious reliance interests, the agency must consider those interests and weigh them appropriately. See Motor Vehicle Manufacturers Ass'n v. State Farm (1983) and FCC v. Fox Television Stations (2009). Agency action is judged on the reasons given at the time of the decision; post hoc rationalizations by counsel or later officials cannot supply new justifications. See SEC v. Chenery (Chenery I and II). The APA's exception for actions committed to agency discretion by law, 5 U.S.C. § 701(a)(2), is narrow and applies only where there is truly no law to apply. Equal protection claims against federal executive action are analyzed under Arlington Heights; plaintiffs must plausibly allege discriminatory purpose, not merely disparate impact.
1) Reviewability: The rescission of DACA is reviewable under the APA; it is not committed to agency discretion by law. 2) Merits under the APA: DHS's rescission was arbitrary and capricious because the Acting Secretary failed to consider important aspects of the problem, including the option of retaining forbearance while eliminating associated benefits and the significant reliance interests engendered by DACA. The later Nielsen memorandum could not provide new reasons post hoc. 3) Equal protection: Plaintiffs' equal protection claim was inadequately pleaded and fails. The Court set aside the rescission and remanded to DHS for further consideration; it did not reach the notice-and-comment claims.
Reviewability: The government argued the rescission was an unreviewable exercise of enforcement discretion. The Court rejected that characterization, emphasizing that DACA did more than announce nonenforcement; it also conferred affirmative benefits like work authorization through an established regulatory scheme. That feature supplied law to apply and took the rescission outside the narrow § 701(a)(2) exception. Arbitrary and capricious: On the merits, the Court applied State Farm and Fox to assess whether DHS reasonably explained its policy reversal. The Acting Secretary's 2017 memorandum grounded rescission entirely on a legal conclusion that DACA was unlawful in light of the Fifth Circuit's DAPA decision. The Court found two principal flaws. First, the memorandum conflated two distinct components of DACA: forbearance from removal and eligibility for associated benefits. Even accepting arguendo that benefits might be unlawful, DHS was required to consider the alternative of retaining forbearance while eliminating or curtailing benefits. The failure to consider that obvious, less-disruptive alternative violated State Farm's command to consider important aspects of the problem and reasonable alternatives. Second, the agency failed to assess the substantial reliance interests DACA had created for recipients, their families, employers, educational institutions, and state and local governments. Fox and Encino Motorcars make clear that when a prior policy has engendered serious reliance, an agency must consider those interests and provide a reasoned explanation for the costs of upsetting them. The Acting Secretary's memorandum did not meaningfully engage with reliance at all. The later Nielsen memorandum's generalized references to enforcement priorities and potential negative incentives could not cure those defects because, under Chenery, agency action must be evaluated on the contemporaneous reasons given. While a later memorandum may elaborate on the original rationale, it cannot supply new bases for the decision after litigation has commenced. Equal protection: Applying Arlington Heights, the Court held that the plaintiffs' allegations did not plausibly show that the rescission decision was motivated by discriminatory animus against Latinos. Isolated statements by the President and background demographic facts, without a stronger nexus to the decisionmaker's process and reasons, were insufficient at the pleading stage. Justice Sotomayor would have allowed the equal protection claim to proceed, but the majority rejected it. Remedy and limits: The Court vacated the rescission and remanded for further consideration consistent with the APA. It expressly declined to decide DACA's substantive legality, and it did not resolve whether rescission required notice-and-comment rulemaking because the arbitrary-and-capricious holding was dispositive.
Regents is a cornerstone of modern administrative law for three reasons. First, it reaffirms that even high-salience executive actions in immigration are reviewable when they entail more than case-by-case nonenforcement and implicate settled benefits. Second, it operationalizes State Farm and Fox in the context of program rescissions, emphasizing two duties: consider viable, narrower alternatives and meaningfully account for reliance interests. Third, it polices the Chenery principle by refusing to accept post hoc rationales offered by later officials or litigators. For law students, the case offers a template for briefing APA challenges to policy reversals and illustrates the difference between procedural adequacy and substantive legality. It shows how courts can grant relief—vacatur and remand—without dictating policy outcomes, and it highlights how equal protection claims against facially neutral executive decisions must be pled with particularity under Arlington Heights.
Regents underscores that administrative law constrains even momentous executive actions. When an agency reverses a program that distributed tangible benefits and fostered widespread reliance, it must transparently weigh costs, consider narrower options, and articulate a contemporaneous, coherent rationale. Failure to do so makes the action arbitrary and capricious, regardless of the policy's wisdom.