Where Kavanaugh Broke With Supreme Court Majority in DACA Opinion

Supreme Court Justice Brett Kavanaugh's dissent from the high court's opinion that the Department of Homeland Security (DHS) violated the Administrative Procedure Act in ending DACA came down to the Nielsen memorandum.

On Thursday, the Supreme Court ruled in a 5-4 decision that President Donald Trump's administration failed to provide a "reasonable explanation" for unilaterally ending the Obama-era Deferred Action for Childhood Arrivals (DACA) program. Kavanaugh disagreed and said former Homeland Security Secretary Kirstjen Nielsen's memo was sufficient.

In her 2018 memo, Nielsen defended the decision to revoke DACA on the basis it was "contrary to law" or that there were, at least, "serious doubts about its legality" when it was rescinded in 2017. Legality aside, Nielsen also wrote that DHS should enforce laws adopted by Congress and not engage in non-enforcement under the guise of prosecutorial discretion, particularly for people "Congress has repeatedly considered by declined to protect."

The Administrative Procedure Act (ACA) requires the government's decision to satisfy an "arbitrary-and-capricious standard," meaning the action must be "reasonable and reasonably explained." Under the ordinary application of the standard, Kavanaugh said the Nielsen Memorandum "would pass muster as an explanation for the Executive Branch's action."

However, the Court didn't evaluate the merits of the Nielsen Memorandum. Instead, they considered the explanation put forth in a 2017 memo from former Homeland Security Deputy Secretary Elaine Duke.

Nielsen's issued her memo after a D.C. district court vacated the Duke rescission and gave DHS a chance to reissue a memo rescinding DACA that provided a fuller explanation. Since Nielsen elaborated on Duke's reasoning instead of taking new administrative action, Chief Justice John Roberts wrote in the majority opinion her elaboration was confined to the original arguments.

Nielsen's memo gives reasons that don't appear in the Duke memo, so Roberts said they amounted to "impermissible post hoc rationalizations" and therefore weren't a factor in the Court's decision. The Duke memo focused on perceived legal flaws with DACA and the Court deemed it "insufficient under the APA's arbitrary-and-capricious standard."

Kavanaugh wrote that he was not aware of a case where the post hoc justification doctrine was used to exclude an agency's official explanation of an agency rule. In reviewing the arbitrary-and-capricious standard, the justice said it didn't matter when the latest explanation occurred--it only mattered that the explanation was reasonable and followed procedure.

"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," Kavanaugh wrote.

Since the Court didn't consider the Nielsen memo in deciding whether the rescission of DACA satisfied the arbitrary-and-capricious standard, Kavanaugh wrote he dissented from the opinion that the Trump administration violated APA. He concurred, however, with the Court's rejection of the plaintiffs' claim that rescinding DACA violated their Fifth Amendment right of equal protection.

An estimated 650,000 people are protected under the DACA Act. The 2012 executive order granted children who were brought to the country illegally the ability to live and work in the United States without fear of deportation. Shortly after taking office, Trump attempted to rescind the program, and ongoing court battles left the fate of hundreds of thousands of people up in the air.

Roberts was considered the swing vote and sided with four liberal justices. He wrote in the majority opinion that the DHS' failure to consider whether to retain forbearance and what, if anything, to do about the hardship to DACA recipients raised doubts as to whether the agency "appreciated the scope of its discretion or exercised that discretion in a reasonable manner."

The DHS now has the opportunity to reconsider the problem and can try to once again shut down DACA by offering a more detailed explanation for its action. It's unclear if, during an election year, the Trump administration will pursue the matter, as a majority of people support giving permanent legal status to DACA beneficiaries, according to a Pew Research poll.

Newsweek reached out to the White House for comment, but did not receive a response in time for publication.