DHS v. Regents of the University of California

NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.

															SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 18–587, 18–588, and 18–589

															_________________

															DEPARTMENT OF HOMELAND SECURITY,
et al., PETITIONERS

															18–587 v. REGENTS OF THE UNIVERSITY OF CALIFORNIA,
et al.

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, et al., PETITIONERS

															18–588 v. NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, et al.; AND

															on writ of certiorari before judgment to the
united states court of appeals for the district of columbia
circuit

															CHAD WOLF, ACTING SECRETARY OF HOMELAND
SECURITY, et al., PETITIONERS

															18–589 v. MARTIN JONATHAN BATALLA VIDAL,
et al.

															on writ of certiorari before judgment to the
united states court of appeals for the second circuit

															[June 18, 2020]

															Chief Justice Roberts delivered the opinion of
the Court, except as to Part IV.

															In the summer of 2012, the Department of
Homeland Security (DHS) announced an immigration program known as
Deferred Action for Childhood Arrivals, or DACA. That program
allows certain unauthorized aliens who entered the United States as
children to apply for a two-year forbearance of removal. Those
granted such relief are also eligible for work authorization and
various federal benefits. Some 700,000 aliens have availed
themselves of this opportunity.

															Five years later, the Attorney General advised
DHS to rescind DACA, based on his conclusion that it was unlawful.
The Department’s Acting Secretary issued a memorandum terminating
the program on that basis. The termination was challenged by
affected individuals and third parties who alleged, among other
things, that the Acting Secretary had violated the Administrative
Procedure Act (APA) by failing to adequately address important
factors bearing on her decision. For the reasons that follow, we
conclude that the Acting Secretary did violate the APA, and that
the rescission must be vacated.

															I

															A

															In June 2012, the Secretary of Homeland
Security issued a memorandum announcing an immigration relief
program for “certain young people who were brought to this country
as children.” App. to Pet. for Cert. in No. 18–587, p. 97a (App. to
Pet. for Cert.). Known as DACA, the program applies to childhood
arrivals who were under age 31 in 2012; have continuously resided
here since 2007; are current students, have completed high school,
or are honorably discharged veterans; have not been convicted of
any serious crimes; and do not threaten national security or public
safety. Id. , at 98a. DHS concluded that individuals who meet
these criteria warrant favorable treatment under the immigration
laws because they “lacked the intent to violate the law,” are
“productive” contributors to our society, and “know only this
country as home.” Id. , at 98a–99a.

															“[T]o prevent [these] low priority individuals
from being removed from the United States,” the DACA Memorandum
instructs Immigration and Customs Enforcement to “exercise
prosecutorial discretion[ ] on an individual basis
. . . by deferring action for a period of two years,
subject to renewal.” Id. , at 100a. In addition, it directs
U. S. Citizenship and Immigration Services (USCIS) to “accept
applications to determine whether these individuals qualify for
work authorization during this period of deferred action,” id. , at 101a, as permitted under regulations long predating
DACA’s creation, see 8 CFR §274a.12(c)(14) (2012) (permitting work
authorization for deferred action recipients who establish
“economic necessity”); 46 Fed. Reg. 25080–25081 (1981) (similar).
Pursuant to other regulations, deferred action recipients are
considered “lawfully present” for purposes of, and therefore
eligible to receive, Social Security and Medicare benefits. See 8
CFR §1.3(a)(4)(vi); 42 CFR §417.422(h) (2012).

															In November 2014, two years after DACA was
promulgated, DHS issued a memorandum announcing that it would
expand DACA eligibility by removing the age cap, shifting the
date-of-entry requirement from 2007 to 2010, and extending the
deferred action and work authorization period to three years. App.
to Pet. for Cert. 106a–107a. In the same memorandum, DHS created a
new, related program known as Deferred Action for Parents of
Americans and Lawful Permanent Residents, or DAPA. That program
would have authorized deferred action for up to 4.3 million parents
whose children were U. S. citizens or lawful permanent
residents. These parents were to enjoy the same forbearance, work
eligibility, and other benefits as DACA recipients.

															Before the DAPA Memorandum was implemented, 26
States, led by Texas, filed suit in the Southern District of Texas.
The States contended that DAPA and the DACA expansion violated the
APA’s notice and comment requirement, the Immigration and
Nationality Act (INA), and the Executive’s duty under the Take Care
Clause of the Constitution. The District Court found that the
States were likely to succeed on the merits of at least one of
their claims and entered a nationwide preliminary injunction
barring implementation of both DAPA and the DACA expansion. See Texas v. United States , 86 F. Supp. 3d 591,
677–678 (2015).

															A divided panel of the Court of Appeals for the
Fifth Circuit affirmed the preliminary injunction. Texas v. United States , 809 F.3d 134, 188 (2015). In opposing the
injunction, the Government argued that the DAPA Memorandum
reflected an unreviewable exercise of the Government’s enforcement
discretion. The Fifth Circuit majority disagreed. It reasoned that
the deferred action described in the DAPA Memorandum was “much more
than nonenforcement: It would affirmatively confer ‘lawful
presence’ and associated benefits on a class of unlawfully present
aliens.” Id. , at 166. From this, the majority concluded that
the creation of the DAPA program was not an unreviewable action
“committed to agency discretion by law.” Id. , at 169
(quoting 5 U. S. C. §701(a)(2)).

															The majority then upheld the injunction on two
grounds. It first concluded the States were likely to succeed on
their procedural claim that the DAPA Memorandum was a substantive
rule that was required to undergo notice and comment. It then held
that the APA required DAPA to be set aside because the program was
“manifestly contrary” to the INA, which “expressly and carefully
provides legal designations allowing defined classes” to “receive
the benefits” associated with “lawful presence” and to qualify for
work authorization, 809 F. 3d, at 179–181, 186 (internal
quotation marks omitted). Judge King dissented.

															This Court affirmed the Fifth Circuit’s judgment
by an equally divided vote, which meant that no opinion was issued. United States v. Texas , 579 U. S. ___ (2016)
( per curiam ). For the next year, litigation over DAPA
and the DACA expansion continued in the Southern District of Texas,
while implementation of those policies remained enjoined.

															Then, in June 2017, following a change in
Presidential administrations, DHS rescinded the DAPA Memorandum. In
explaining that decision, DHS cited the preliminary injunction and
ongoing litigation in Texas, the fact that DAPA had never taken
effect, and the new administration’s immigration enforcement
priorities.

															Three months later, in September 2017, Attorney
General Jefferson B. Sessions III sent a letter to Acting Secretary
of Homeland Security Elaine C. Duke, “advis[ing]” that DHS “should
rescind” DACA as well. App. 877. Citing the Fifth Circuit’s opinion
and this Court’s equally divided affirmance, the Attorney General
concluded that DACA shared the “same legal . . . defects
that the courts recognized as to DAPA” and was “likely” to meet a
similar fate. Id. , at 878. “In light of the costs and
burdens” that a rescission would “impose[ ] on DHS,” the
Attorney General urged DHS to “consider an orderly and efficient
wind-down process.” Ibid. The next day, Duke acted on the Attorney
General’s advice. In her decision memorandum, Duke summarized the
history of the DACA and DAPA programs, the Fifth Circuit opinion
and ensuing affirmance, and the contents of the Attorney General’s
letter. App. to Pet. for Cert. 111a–117a. “Taking into
consideration the Supreme Court’s and the Fifth Circuit’s rulings”
and the “letter from the Attorney General,” she concluded that the
“DACA program should be terminated.” Id. , at 117a.

															Duke then detailed how the program would be
wound down: No new applications would be accepted, but DHS would
entertain applications for two-year renewals from DACA recipients
whose benefits were set to expire within six months. For all other
DACA recipients, previously issued grants of deferred action and
work authorization would not be revoked but would expire on their
own terms, with no prospect for renewal. Id. , at
117a–118a.

															B

															Within days of Acting Secretary Duke’s
rescission announcement, multiple groups of plaintiffs ranging from
individual DACA recipients and States to the Regents of the
University of California and the National Association for the
Advancement of Colored People challenged her decision in the
U. S. District Courts for the Northern District of California
( Regents , No. 18–587), the Eastern District of New York
( Batalla Vidal , No. 18–589), and the District of Columbia
( NAACP , No. 18–588). The relevant claims are that the
rescission was arbitrary and capricious in violation of the APA and
that it infringed the equal protection guarantee of the Fifth
Amendment’s Due Process Clause.[ 1 ]

															All three District Courts ruled for the
plaintiffs, albeit at different stages of the proceedings.[ 2 ] In doing so, each court rejected the
Government’s threshold arguments that the claims were unreviewable
under the APA and that the INA deprived the court of jurisdiction.
298 F. Supp. 3d 209, 223–224, 234–235 (DC 2018); 279
F. Supp. 3d 1011, 1029–1033 (ND Cal. 2018); 295 F. Supp.
3d 127, 150, 153–154 (EDNY 2017).

															In Regents and Batalla Vidal , the
District Courts held that the equal protection claims were
adequately alleged. 298 F. Supp. 3d 1304, 1315 (ND Cal. 2018);
291 F. Supp. 3d 260, 279 (EDNY 2018). Those courts also
entered coextensive nationwide preliminary injunctions, based on
the conclusion that the plaintiffs were likely to succeed on the
merits of their claims that the rescission was arbitrary and
capricious. These injunctions did not require DHS to accept new
applications, but did order the agency to allow DACA recipients to
“renew their enrollments.” 279 F. Supp. 3d, at 1048; see 279
F. Supp. 3d 401, 437 (EDNY 2018).

															In NAACP , the D. C. District Court
took a different course. In April 2018, it deferred ruling on the
equal protection challenge but granted partial summary judgment to
the plaintiffs on their APA claim, holding that Acting Secretary
Duke’s “conclusory statements were insufficient to explain the
change in [the agency’s] view of DACA’s lawfulness.” 298
F. Supp. 3d, at 243. The District Court stayed its order for
90 days to permit DHS to “reissue a memorandum rescinding DACA,
this time providing a fuller explanation for the determination that
the program lacks statutory and constitutional authority.” Id. , at 245.

															Two months later, Duke’s successor, Secretary
Kirstjen M. Nielsen, responded via memorandum. App. to Pet. for
Cert. 120a–126a. She explained that, “[h]aving considered the Duke
memorandum,” she “decline[d] to disturb” the rescission. Id. , at 121a. Secretary Nielsen went on to articulate her
“understanding” of Duke’s memorandum, identifying three reasons
why, in Nielsen’s estimation, “the decision to rescind the DACA
policy was, and remains, sound.” Ibid. First, she reiterated
that, “as the Attorney General concluded, the DACA policy was
contrary to law.” Id. , at 122a. Second, she added that,
regardless, the agency had “serious doubts about [DACA’s] legality”
and, for law enforcement reasons, wanted to avoid “legally
questionable” policies. Id. , at 123a. Third, she identified
multiple policy reasons for rescinding DACA, including (1) the
belief that any class-based immigration relief should come from
Congress, not through executive non-enforcement; (2) DHS’s
preference for exercising prosecutorial discretion on “a truly
individualized, case-by-case basis”; and (3) the importance of
“project[ing] a message” that immigration laws would be enforced
against all classes and categories of aliens. Id. , at
123a–124a. In her final paragraph, Secretary Nielsen acknowledged
the “asserted reliance interests” in DACA’s continuation but
concluded that they did not “outweigh the questionable legality of
the DACA policy and the other reasons” for the rescission discussed
in her memorandum. Id. , at 125a.

															The Government asked the D. C. District
Court to revise its prior order in light of the reasons provided by
Secretary Nielsen, but the court declined. In the court’s view, the
new memorandum, which “fail[ed] to elaborate meaningfully” on the
agency’s illegality rationale, still did not provide an adequate
explanation for the September 2017 rescission. 315 F. Supp. 3d
457, 460, 473–474 (2018).

															The Government appealed the various District
Court decisions to the Second, Ninth, and D. C. Circuits,
respectively. In November 2018, while those appeals were pending,
the Government simultaneously filed three petitions for certiorari
before judgment. After the Ninth Circuit affirmed the nationwide
injunction in Regents , see 908 F.3d 476 (2018), but before
rulings from the other two Circuits, we granted the petitions and
consolidated the cases for argument. 588 U. S. ___ (2019). The
issues raised here are (1) whether the APA claims are
reviewable, (2) if so, whether the rescission was arbitrary and
capricious in violation of the APA, and (3) whether the plaintiffs
have stated an equal protection claim.

															II

															The dispute before the Court is not whether
DHS may rescind DACA. All parties agree that it may. The dispute is
instead primarily about the procedure the agency followed in doing
so.

															The APA “sets forth the procedures by which
federal agencies are accountable to the public and their actions
subject to review by the courts.” Franklin v. Massachusetts , 505 U.S.
788 , 796 (1992). It requires agencies to engage in “reasoned
decisionmaking,” Michigan v. EPA , 576 U.S. 743, 750
(2015) (internal quotation marks omitted), and directs that agency
actions be “set aside” if they are “arbitrary” or “capricious,” 5
U. S. C. §706(2)(A). Under this “narrow standard of
review, . . . a court is not to substitute its judgment
for that of the agency,” FCC v. Fox Television Stations,
Inc. , 556 U.S.
502 , 513 (2009) (internal quotation marks omitted), but instead
to assess only whether the decision was “based on a consideration
of the relevant factors and whether there has been a clear error of
judgment,” Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S.
402 , 416 (1971).

															But before determining whether the rescission
was arbitrary and capricious, we must first address the
Government’s contentions that DHS’s decision is unreviewable under
the APA and outside this Court’s jurisdiction.

															A

															The APA establishes a “basic presumption of
judicial review [for] one ‘suffering legal wrong because of agency
action.’ ” Abbott Laboratories v. Gardner , 387 U.S.
136 , 140 (1967) (quoting §702). That presumption can be
rebutted by a showing that the relevant statute “preclude[s]”
review, §701(a)(1), or that the “agency action is committed to
agency discretion by law,” §701(a)(2). The latter exception is at
issue here.

															To “honor the presumption of review, we have
read the exception in §701(a)(2) quite narrowly,” Weyerhaeuser
Co. v. United States Fish and Wildlife Serv. , 586
U. S. ___, ___ (2018) (slip op., at 12), confining it to those
rare “administrative decision[s] traditionally left to agency
discretion,” Lincoln v. Vigil , 508 U.S.
182 , 191 (1993). This limited category of unreviewable actions
includes an agency’s decision not to institute enforcement
proceedings, Heckler v. Chaney , 470 U.S.
821 , 831–832 (1985), and it is on that exception that the
Government primarily relies.

															In Chaney , several death-row inmates
petitioned the Food and Drug Administration (FDA) to take
enforcement action against two States to prevent their use of
certain drugs for lethal injection. The Court held that the FDA’s
denial of that petition was presumptively unreviewable in light of
the well-established “tradition” that “an agency’s decision not to
prosecute or enforce” is “generally committed to an agency’s
absolute discretion.” Id. , at 831. We identified a
constellation of reasons that underpin this tradition. To start, a
non-enforcement decision “often involves a complicated balancing of
a number of factors which are peculiarly within [the agency’s]
expertise,” such as “whether the particular enforcement action
requested best fits the agency’s overall policies.” Ibid. The decision also mirrors, “to some extent,” a prosecutor’s
decision not to indict, which has “long been regarded as the
special province of the Executive Branch.” Id. , at 832. And,
as a practical matter, “when an agency refuses to act” there is no
action to “provide[ ] a focus for judicial review.” Ibid .

															The Government contends that a general
non-enforcement policy is equivalent to the individual
non-enforcement decision at issue in Chaney . In each case,
the Government argues, the agency must balance factors peculiarly
within its expertise, and does so in a manner akin to a criminal
prosecutor. Building on that premise, the Government argues that
the rescission of a non-enforcement policy is no different—for
purposes of reviewability—from the adoption of that policy. While
the rescission may lead to increased enforcement, it does not, by
itself, constitute a particular enforcement action. Applying this
logic to the facts here, the Government submits that DACA is a
non-enforcement policy and that its rescission is therefore
unreviewable.

															But we need not test this chain of reasoning
because DACA is not simply a non-enforcement policy. For starters,
the DACA Memorandum did not merely “refus[e] to institute
proceedings” against a particular entity or even a particular
class. Ibid . Instead, it directed USCIS to “establish a
clear and efficient process” for identifying individuals who met
the enumerated criteria. App. to Pet. for Cert. 100a. Based on this
directive, USCIS solicited applications from eligible aliens,
instituted a standardized review process, and sent formal notices
indicating whether the alien would receive the two-year
forbearance. These proceedings are effectively “adjudicat[ions].” Id ., at 117a. And the result of these adjudications—DHS’s
decision to “grant deferred action,” Brief for Petitioners 45—is an
“affirmative act of approval,” the very opposite of a “refus[al] to
act,” Chaney , 470 U. S., at 831–832. In short, the DACA
Memorandum does not announce a passive non-enforcement policy; it
created a program for conferring affirmative immigration relief.
The creation of that program—and its rescission—is an “action
[that] provides a focus for judicial review.” Id. , at
832.

															The benefits attendant to deferred action
provide further confirmation that DACA is more than simply a
non-enforcement policy. As described above, by virtue of receiving
deferred action, the 700,000 DACA recipients may request work
authorization and are eligible for Social Security and Medicare.
See supra , at 3. Unlike an agency’s refusal to take
requested enforcement action, access to these types of benefits is
an interest “courts often are called upon to protect.” Chaney , 470 U. S., at 832. See also Barnhart v. Thomas , 540 U.S.
20 (2003) (reviewing eligibility determination for Social
Security benefits).

															Because the DACA program is more than a
non-enforcement policy, its rescission is subject to review under
the APA.

															B

															The Government also invokes two jurisdictional
provisions of the INA as independent bars to review. Neither
applies.

															Section 1252(b)(9) bars review of claims arising
from “action[s]” or “proceeding[s] brought to remove an alien.”
66Stat. 209, as amended, 8 U. S. C. §1252(b)(9). That
targeted language is not aimed at this sort of case. As we have
said before, §1252(b)(9) “does not present a jurisdictional bar”
where those bringing suit “are not asking for review of an order of
removal,” “the decision . . . to seek removal,” or “the
process by which . . . removability will be determined.” Jennings v. Rodriguez , 583 U. S. ___, ___–___
(2018) (plurality opinion) (slip op., at 10–11); id. , at ___
(Breyer, J., dissenting) (slip op., at 31). And it is certainly not
a bar where, as here, the parties are not challenging any removal
proceedings.

															Section 1252(g) is similarly narrow. That
provision limits review of cases “arising from” decisions “to
commence proceedings, adjudicate cases, or execute removal orders.”
§1252(g). We have previously rejected as “implausible” the
Government’s suggestion that §1252(g) covers “all claims arising
from deportation proceedings” or imposes “a general jurisdictional
limitation.” Reno v. American-Arab Anti- Discrimination
Comm. , 525 U.S.
471 , 482 (1999). The rescission, which revokes a deferred
action program with associated benefits, is not a decision to
“commence proceedings,” much less to “adjudicate” a case or
“execute” a removal order.

															With these preliminary arguments out of the way,
we proceed to the merits.

															III

															A

															Deciding whether agency action was adequately
explained requires, first, knowing where to look for the agency’s
explanation. The natural starting point here is the explanation
provided by Acting Secretary Duke when she announced the rescission
in September 2017. But the Government urges us to go on and
consider the June 2018 memorandum submitted by Secretary Nielsen as
well. That memo was prepared after the D. C. District Court
vacated the Duke rescission and gave DHS an opportunity to “reissue
a memorandum rescinding DACA, this time providing a fuller
explanation for the determination that the program lacks statutory
and constitutional authority.” 298 F. Supp. 3d, at 245.
According to the Government, the Nielsen Memorandum is properly
before us because it was invited by the District Court and reflects
the views of the Secretary of Homeland Security—the official
responsible for immigration policy. Respondents disagree, arguing
that the Nielsen Memorandum, issued nine months after the
rescission, impermissibly asserts prudential and policy reasons not
relied upon by Duke.

															It is a “foundational principle of
administrative law” that judicial review of agency action is
limited to “the grounds that the agency invoked when it took the
action.” Michigan , 576 U. S., at 758. If those grounds
are inadequate, a court may remand for the agency to do one of two
things: First, the agency can offer “a fuller explanation of the
agency’s reasoning at the time of the agency action .” Pension Benefit Guaranty Corporation v. LTV Corp. , 496 U.S.
633 , 654 (1990) (emphasis added). See also Alpharma,
Inc. v. Leavitt , 460 F.3d 1 , 5–6 (CADC 2006) (Garland, J.) (permitting an agency
to provide an “amplified articulation” of a prior “conclusory”
observation (internal quotation marks omitted)). This route has
important limitations. When an agency’s initial explanation
“indicate[s] the determinative reason for the final action taken,”
the agency may elaborate later on that reason (or reasons) but may
not provide new ones. Camp v. Pitts , 411 U.S.
138 , 143 (1973) ( per curiam ). Alternatively, the agency
can “deal with the problem afresh” by taking new agency
action. SEC v. Chenery Corp. , 332
U.S. 194 , 201 (1947) ( Chenery II ). An agency taking this
route is not limited to its prior reasons but must comply with the
procedural requirements for new agency action.

															The District Court’s remand thus presented DHS
with a choice: rest on the Duke Memorandum while elaborating on its
prior reasoning, or issue a new rescission bolstered by new reasons
absent from the Duke Memorandum. Secretary Nielsen took the first
path. Rather than making a new decision, she “decline[d] to disturb
the Duke memorandum’s rescission” and instead “provide[d] further
explanation” for that action. App. to Pet. for Cert. 121a. Indeed,
the Government’s subsequent request for reconsideration described
the Nielsen Memorandum as “additional explanation for [Duke’s]
decision” and asked the District Court to “leave in place [Duke’s]
September 5, 2017 decision to rescind the DACA policy.” Motion to
Revise Order in No. 17–cv–1907 etc. (D DC), pp. 2, 19.
Contrary to the position of the Government before this Court, and
of Justice Kavanaugh in dissent, post , at 4 (opinion
concurring in judgment in part and dissenting in part), the Nielsen
Memorandum was by its own terms not a new rule implementing a new
policy.

															Because Secretary Nielsen chose to elaborate on
the reasons for the initial rescission rather than take new
administrative action, she was limited to the agency’s original
reasons, and her explanation “must be viewed critically” to ensure
that the rescission is not upheld on the basis of impermissible
“ post hoc rationalization.” Overton Park , 401
U. S., at 420. But despite purporting to explain the Duke
Memorandum, Secretary Nielsen’s reasoning bears little relationship
to that of her predecessor. Acting Secretary Duke rested the
rescission on the conclusion that DACA is unlawful. Period. See
App. to Pet. for Cert. 117a. By contrast, Secretary Nielsen’s new
memorandum offered three “separate and independently sufficient
reasons” for the rescission, id. , at 122a, only the first of
which is the conclusion that DACA is illegal.

															Her second reason is that DACA is, at minimum,
legally questionable and should be terminated to maintain
public confidence in the rule of law and avoid burdensome
litigation. No such justification can be found in the Duke
Memorandum. Legal uncertainty is, of course, related to illegality.
But the two justifications are meaningfully distinct, especially in
this context. While an agency might, for one reason or another,
choose to do nothing in the face of uncertainty, illegality
presumably requires remedial action of some sort.

															The policy reasons that Secretary Nielsen cites
as a third basis for the rescission are also nowhere to be found in
the Duke Memorandum. That document makes no mention of a preference
for legislative fixes, the superiority of case-by-case
decisionmaking, the importance of sending a message of robust
enforcement, or any other policy consideration. Nor are these
points included in the legal analysis from the Fifth Circuit and
the Attorney General. They can be viewed only as impermissible post hoc rationalizations and thus are not properly before
us.

															The Government, echoed by Justice Kavanaugh,
protests that requiring a new decision before considering Nielsen’s
new justifications would be “an idle and useless formality.” NLRB v. Wyman-Gordon Co. , 394
U.S. 759 , 766, n. 6 (1969) (plurality opinion). See also post , at 5. Procedural requirements can often seem such. But
here the rule serves important values of administrative law.
Requiring a new decision before considering new reasons promotes
“agency accountability,” Bowen v. American Hospital
Assn. , 476 U.S.
610 , 643 (1986), by ensuring that parties and the public can
respond fully and in a timely manner to an agency’s exercise of
authority. Considering only contemporaneous explanations for agency
action also instills confidence that the reasons given are not
simply “convenient litigating position[s].” Christopher v. SmithKline Beecham Corp. , 567 U.S.
142 , 155 (2012) (internal quotation marks omitted). Permitting
agencies to invoke belated justifications, on the other hand, can
upset “the orderly functioning of the process of review,” SEC v. Chenery Corp., 318 U.S.
80 , 94 (1943), forcing both litigants and courts to chase a
moving target. Each of these values would be markedly undermined
were we to allow DHS to rely on reasons offered nine months after
Duke announced the rescission and after three different courts had
identified flaws in the original explanation.

															Justice Kavanaugh asserts that this
“foundational principle of administrative law,” Michigan ,
576 U. S., at 758, actually limits only what lawyers may
argue, not what agencies may do. Post , at 5. While it is
true that the Court has often rejected justifications belatedly
advanced by advocates, we refer to this as a prohibition on post hoc rationalizations, not advocate
rationalizations, because the problem is the timing, not the
speaker. The functional reasons for requiring contemporaneous
explanations apply with equal force regardless whether post hoc justifications are raised in court by those
appearing on behalf of the agency or by agency officials
themselves. See American Textile Mfrs. Institute, Inc. v. Donovan , 452 U.S.
490 , 539 (1981) (“[T]he post hoc rationalizations of the
agency . . . cannot serve as a sufficient predicate for
agency action.”); Overton Park , 401 U. S., at 419
(rejecting “litigation affidavits” from agency officials as “merely
‘ post hoc ’ rationalizations”).[ 3 ]

															Justice Holmes famously wrote that “[m]en must
turn square corners when they deal with the Government.” Rock
Island, A. & L. R. Co. v. United States , 254 U.S.
141 , 143 (1920). But it is also true, particularly when so much is at stake,
that “the Government should turn square corners in dealing with the
people.” St. Regis Paper Co. v. United States , 368 U.S.
208 , 229 (1961) (Black, J., dissenting). The basic rule here is
clear: An agency must defend its actions based on the reasons it
gave when it acted. This is not the case for cutting corners to
allow DHS to rely upon reasons absent from its original
decision.

															B

															We turn, finally, to whether DHS’s decision to
rescind DACA was arbitrary and capricious. As noted earlier, Acting
Secretary Duke’s justification for the rescission was succinct:
“Taking into consideration” the Fifth Circuit’s conclusion that
DAPA was unlawful because it conferred benefits in violation of the
INA, and the Attorney General’s conclusion that DACA was unlawful
for the same reason, she concluded—without elaboration—that the
“DACA program should be terminated.” App. to Pet. for Cert.
117a.[ 4 ]

															Respondents maintain that this explanation is
deficient for three reasons. Their first and second arguments work
in tandem, claiming that the Duke Memorandum does not adequately
explain the conclusion that DACA is unlawful, and that this
conclusion is, in any event, wrong. While those arguments carried
the day in the lower courts, in our view they overlook an important
constraint on Acting Secretary Duke’s decisionmaking authority—she
was bound by the Attorney General’s legal determination.

															The same statutory provision that establishes
the Secretary of Homeland Security’s authority to administer and
enforce immigration laws limits that authority, specifying that,
with respect to “all questions of law,” the determinations of the
Attorney General “shall be controlling.” 8 U. S. C.
§1103(a)(1). Respondents are aware of this constraint. Indeed they
emphasized the point in the reviewability sections of their briefs.
But in their merits arguments, respondents never addressed whether
or how this unique statutory provision might affect our review.
They did not discuss whether Duke was required to explain a legal
conclusion that was not hers to make. Nor did they discuss whether
the current suits challenging Duke’s rescission decision, which
everyone agrees was within her legal authority under the INA, are
proper vehicles for attacking the Attorney General’s legal
conclusion.

															Because of these gaps in respondents’ briefing,
we do not evaluate the claims challenging the explanation and
correctness of the illegality conclusion. Instead we focus our
attention on respondents’ third argument—that Acting Secretary Duke
“failed to consider . . . important aspect[s] of the
problem” before her. Motor Vehicle Mfrs. Assn. of United States,
Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S.
29 , 43 (1983).

															Whether DACA is illegal is, of course, a legal
determination, and therefore a question for the Attorney General.
But deciding how best to address a finding of illegality moving
forward can involve important policy choices, especially when the
finding concerns a program with the breadth of DACA. Those policy
choices are for DHS.

															Acting Secretary Duke plainly exercised such
discretionary authority in winding down the program. See App. to
Pet. for Cert. 117a–118a (listing the Acting Secretary’s decisions
on eight transition issues). Among other things, she specified that
those DACA recipients whose benefits were set to expire within six
months were eligible for two-year renewals. Ibid .

															But Duke did not appear to appreciate the full
scope of her discretion, which picked up where the Attorney
General’s legal reasoning left off. The Attorney General concluded
that “the DACA policy has the same legal . . . defects
that the courts recognized as to DAPA.” App. 878. So, to understand
those defects, we look to the Fifth Circuit, the highest court to
offer a reasoned opinion on the legality of DAPA. That court
described the “core” issue before it as the “Secretary’s decision”
to grant “eligibility for benefits”—including work authorization,
Social Security, and Medicare—to unauthorized aliens on “a
class-wide basis.” Texas , 809 F. 3d, at 170; see id., at 148, 184. The Fifth Circuit’s focus on these benefits was
central to every stage of its analysis. See id., at 155
(standing); id. , at 163 (zone of interest); id. , at
164 (applicability of §1252(g)); id. , at 166
(reviewability); id. , at 176–177 (notice and comment); id. , at 184 (substantive APA). And the Court ultimately held
that DAPA was “manifestly contrary to the INA” precisely because it
“would make 4.3 million otherwise removable aliens” eligible for
work authorization and public benefits. Id. , at 181–182
(internal quotation marks omitted).[ 5 ]

															But there is more to DAPA (and DACA) than such
benefits. The defining feature of deferred action is the decision
to defer removal (and to notify the affected alien of that
decision). See App. to Pet. for Cert. 99a. And the Fifth Circuit
was careful to distinguish that forbearance component from
eligibility for benefits. As it explained, the “challenged portion
of DAPA’s deferred-action program” was the decision to make DAPA
recipients eligible for benefits. See Texas , 809 F. 3d, at
168, and n. 108. The other “[p]art of DAPA,” the court noted,
“involve[d] the Secretary’s decision—at least temporarily—not to
enforce the immigration laws as to a class of what he deem[ed] to
be low-priority illegal aliens.” Id. , at 166. Borrowing from
this Court’s prior description of deferred action, the Fifth
Circuit observed that “the states do not challenge the Secretary’s
decision to ‘decline to institute proceedings, terminate
proceedings, or decline to execute a final order of
deportation.’ ” Id. , at 168 (quoting Reno , 525
U. S., at 484). And the Fifth Circuit underscored that nothing
in its decision or the preliminary injunction “requires the
Secretary to remove any alien or to alter” the Secretary’s
class-based “enforcement priorities.” Texas , 809 F. 3d, at
166, 169. In other words, the Secretary’s forbearance authority was
unimpaired.

															Acting Secretary Duke recognized that the Fifth
Circuit’s holding addressed the benefits associated with DAPA. In
her memorandum she explained that the Fifth Circuit concluded that
DAPA “conflicted with the discretion authorized by Congress”
because the INA “ ‘flatly does not permit the reclassification
of millions of illegal aliens as lawfully present and thereby make
them newly eligible for a host of federal and state benefits,
including work authorization.’ ” App. to Pet. for Cert. 114a
(quoting Texas , 809 F. 3d, at 184). Duke did not
characterize the opinion as one about forbearance.

															In short, the Attorney General neither addressed
the forbearance policy at the heart of DACA nor compelled DHS to
abandon that policy. Thus, removing benefits eligibility while
continuing forbearance remained squarely within the discretion of
Acting Secretary Duke, who was responsible for “[e]stablishing
national immigration enforcement policies and priorities.” 116Stat.
2178, 6 U. S. C. §202(5). But Duke’s memo offers no
reason for terminating forbearance. She instead treated the
Attorney General’s conclusion regarding the illegality of benefits
as sufficient to rescind both benefits and forbearance, without
explanation.

															That reasoning repeated the error we identified
in one of our leading modern administrative law cases, Motor
Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. There, the
National Highway Traffic Safety Administration (NHTSA) promulgated
a requirement that motor vehicles produced after 1982 be equipped
with one of two passive restraints: airbags or automatic seatbelts.
463 U. S., at 37–38, 46. Four years later, before the
requirement went into effect, NHTSA concluded that automatic
seatbelts, the restraint of choice for most manufacturers, would
not provide effective protection. Based on that premise, NHTSA
rescinded the passive restraint requirement in full. Id. , at
38.

															We concluded that the total rescission was
arbitrary and capricious. As we explained, NHTSA’s justification
supported only “disallow[ing] compliance by means of ”
automatic seatbelts. Id. , at 47. It did “not cast doubt” on
the “efficacy of airbag technology” or upon “the need for a passive
restraint standard.” Ibid. Given NHTSA’s prior judgment that
“airbags are an effective and cost-beneficial lifesaving
technology,” we held that “the mandatory passive restraint rule
[could] not be abandoned without any consideration whatsoever of an
airbags-only requirement.” Id. , at 51.

															While the factual setting is different here, the
error is the same. Even if it is illegal for DHS to extend work
authorization and other benefits to DACA recipients, that
conclusion supported only “disallow[ing]” benefits. Id. , at
47. It did “not cast doubt” on the legality of forbearance or upon
DHS’s original reasons for extending forbearance to childhood
arrivals. Ibid. Thus, given DHS’s earlier judgment that
forbearance is “especially justified” for “productive young people”
who were brought here as children and “know only this country as
home,” App. to Pet. for Cert. 98a–99a, the DACA Memorandum could
not be rescinded in full “without any consideration whatsoever” of
a forbearance-only policy, State Farm , 463 U. S., at
51.[ 6 ]

															The Government acknowledges that “[d]eferred
action coupled with the associated benefits are the two legs upon
which the DACA policy stands.” Reply Brief 21. It insists, however,
that “DHS was not required to consider whether DACA’s illegality
could be addressed by separating” the two. Ibid. According
to the Government, “It was not arbitrary and capricious for DHS to
view deferred action and its collateral benefits as importantly
linked.” Ibid. Perhaps. But that response misses the point.
The fact that there may be a valid reason not to separate deferred
action from benefits does not establish that DHS considered that
option or that such consideration was unnecessary.

															The lead dissent acknowledges that forbearance
and benefits are legally distinct and can be decoupled. Post , at 21–22, n. 14 (opinion of Thomas, J). It contends,
however, that we should not “dissect” agency action “piece by
piece.” Post, at 21. The dissent instead rests on the
Attorney General’s legal determination—which considered only
benefits—“to supply the ‘reasoned analysis’ ” to support
rescission of both benefits and forbearance. Post, at 22
(quoting State Farm , 463 U. S., at 42). But State
Farm teaches that when an agency rescinds a prior policy its
reasoned analysis must consider the “alternative[s]” that are
“within the ambit of the existing [policy].” Id. , at 51.
Here forbearance was not simply “within the ambit of the existing
[policy],” it was the centerpiece of the policy: DACA, after all,
stands for “ Deferred Action for Childhood Arrivals.” App. to
Pet. for Cert. 111a (emphasis added). But the rescission memorandum
contains no discussion of forbearance or the option of retaining
forbearance without benefits. Duke “entirely failed to consider
[that] important aspect of the problem.” State Farm , 463
U. S., at 43.

															That omission alone renders Acting Secretary
Duke’s decision arbitrary and capricious. But it is not the only
defect. Duke also failed to address whether there was “legitimate
reliance” on the DACA Memorandum. Smiley v. Citibank
(South Dakota), N. A. , 517 U.S.
735 , 742 (1996). When an agency changes course, as DHS did
here, it must “be cognizant that longstanding policies may have
‘engendered serious reliance interests that must be taken into
account.’ ” Encino Motorcars, LLC v. Navarro ,
579 U. S. ___, ___ (2016) (slip op., at 9) (quoting Fox
Television , 556 U. S., at 515). “It would be arbitrary and
capricious to ignore such matters.” Id ., at 515. Yet that is
what the Duke Memorandum did.

															For its part, the Government does not contend
that Duke considered potential reliance interests; it counters that
she did not need to. In the Government’s view, shared by the lead
dissent, DACA recipients have no “legally cognizable reliance
interests” because the DACA Memorandum stated that the program
“conferred no substantive rights” and provided benefits only in
two-year increments. Reply Brief 16–17; App. to Pet. for Cert.
125a. See also post , at 23–24 (opinion of Thomas, J). But
neither the Government nor the lead dissent cites any legal
authority establishing that such features automatically preclude
reliance interests, and we are not aware of any. These disclaimers
are surely pertinent in considering the strength of any reliance
interests, but that consideration must be undertaken by the agency
in the first instance, subject to normal APA review. There was no
such consideration in the Duke Memorandum.

															Respondents and their amici assert that
there was much for DHS to consider. They stress that, since 2012,
DACA recipients have “enrolled in degree programs, embarked on
careers, started businesses, purchased homes, and even married and
had children, all in reliance” on the DACA program. Brief for
Respondent Regents of Univ. of California et al. in No.
18–587, p. 41 (Brief for Regents). The consequences of the
rescission, respondents emphasize, would “radiate outward” to DACA
recipients’ families, including their 200,000 U. S.-citizen
children, to the schools where DACA recipients study and teach, and
to the employers who have invested time and money in training them.
See id. , at 41–42; Brief for Respondent State of New York
et al. in No. 18–589, p. 42 (Brief for New York). See also
Brief for 143 Businesses as Amici Curiae 17 (estimating that
hiring and training replacements would cost employers $6.3
billion). In addition, excluding DACA recipients from the lawful
labor force may, they tell us, result in the loss of $215 billion
in economic activity and an associated $60 billion in federal tax
revenue over the next ten years. Brief for Regents 6. Meanwhile,
States and local governments could lose $1.25 billion in tax
revenue each year. Ibid. These are certainly noteworthy concerns, but
they are not necessarily dispositive. To the Government and lead
dissent’s point, DHS could respond that reliance on forbearance and
benefits was unjustified in light of the express limitations in the
DACA Memorandum. Or it might conclude that reliance interests in
benefits that it views as unlawful are entitled to no or diminished
weight. And, even if DHS ultimately concludes that the reliance
interests rank as serious, they are but one factor to consider. DHS
may determine, in the particular context before it, that other
interests and policy concerns outweigh any reliance interests.
Making that difficult decision was the agency’s job, but the agency
failed to do it.

															DHS has considerable flexibility in carrying out
its responsibility. The wind-down here is a good example of the
kind of options available. Acting Secretary Duke authorized DHS to
process two-year renewals for those DACA recipients whose benefits
were set to expire within six months. But Duke’s consideration was
solely for the purpose of assisting the agency in dealing with
“administrative complexities.” App. to Pet. for Cert. 116a–118a.
She should have considered whether she had similar flexibility in
addressing any reliance interests of DACA recipients. The lead
dissent contends that accommodating such interests would be
“another exercise of unlawful power,” post , at 23 (opinion
of Thomas, J.), but the Government does not make that argument and
DHS has already extended benefits for purposes other than reliance,
following consultation with the Office of the Attorney General.
App. to Pet. for Cert. 116a.

															Had Duke considered reliance interests, she
might, for example, have considered a broader renewal period based
on the need for DACA recipients to reorder their affairs.
Alternatively, Duke might have considered more accommodating
termination dates for recipients caught in the middle of a
time-bounded commitment, to allow them to, say, graduate from their
course of study, complete their military service, or finish a
medical treatment regimen. Or she might have instructed immigration
officials to give salient weight to any reliance interests
engendered by DACA when exercising individualized enforcement
discretion.

															To be clear, DHS was not required to do any of
this or to “consider all policy alternatives in reaching [its]
decision.” State Farm , 463 U. S., at 51. Agencies are
not compelled to explore “every alternative device and thought
conceivable by the mind of man.” Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, Inc. , 435 U.S.
519 , 551 (1978). But, because DHS was “not writing on a blank
slate,” post, at 22, n. 14 (opinion of Thomas, J.), it was required to assess whether there were reliance
interests, determine whether they were significant, and weigh any
such interests against competing policy concerns.

															The lead dissent sees all the foregoing
differently. In its view, DACA is illegal, so any actions under
DACA are themselves illegal. Such actions, it argues, must cease
immediately and the APA should not be construed to impede that
result. See post , at 19–23 (opinion of Thomas, J.).

															The dissent is correct that DACA was rescinded
because of the Attorney General’s illegality determination. See ante , at 20. But nothing about that determination foreclosed
or even addressed the options of retaining forbearance or
accommodating particular reliance interests. Acting Secretary Duke
should have considered those matters but did not. That failure was
arbitrary and capricious in violation of the APA.

															IV

															Lastly, we turn to respondents’ claim that the
rescis- sion violates the equal protection guarantee of the Fifth
Amendment.

															The parties dispute the proper framing of this
claim. The Government contends that the allegation that the
Executive, motivated by animus, ended a program that
disproportionately benefits certain ethnic groups is a selective
enforcement claim. Such a claim, the Government asserts, is barred
by our decision in Reno v. American-Arab
Anti-Discrimination Committee . See 525 U. S., at 488
(holding that “an alien unlawfully in this country has no
constitutional right to assert selective enforcement as a defense
against his deportation”). Respondents counter that their claim
falls outside the scope of that precedent because they are not
challenging individual enforcement proceedings. We need not resolve
this debate because, even if the claim is cognizable, the
allegations here are insufficient.

															To plead animus, a plaintiff must raise a
plausible inference that an “invidious discriminatory purpose was a
motivating factor” in the relevant decision. Arlington
Heights v. Metropolitan Housing Development Corp. , 429 U.S.
252 , 266 (1977). Possible evidence includes disparate impact on
a particular group, “[d]epartures from the normal procedural
sequence,” and “contemporary statements by members of the
decisionmaking body.” Id. , at 266–268. Tracking these
factors, respondents allege that animus is evidenced by (1) the
disparate impact of the rescission on Latinos from Mexico, who
represent 78% of DACA recipients; (2) the unusual history behind
the rescission; and (3) pre- and post-election statements by
President Trump. Brief for New York 54–55.

															None of these points, either singly or in
concert, establishes a plausible equal protection claim. First,
because Latinos make up a large share of the unauthorized alien
population, one would expect them to make up an outsized share of
recipients of any cross-cutting immigration relief program. See B.
Baker, DHS, Office of Immigration Statistics, Population Estimates,
Illegal Alien Population Residing in the United States: January
2015, Table 2 (Dec. 2018),
https://www.dhs.gov/sites/default/files/publications/
18_1214_PLCY_pops-est-report.pdf. Were this fact sufficient to
state a claim, virtually any generally applicable immigration
policy could be challenged on equal protection grounds.

															Second, there is nothing irregular about the
history leading up to the September 2017 rescission. The lower
courts concluded that “DACA received reaffirmation by [DHS] as
recently as three months before the rescission,” 908 F. 3d, at
519 (quoting 298 F. Supp. 3d, at 1315), referring to the June
2017 DAPA rescission memo, which stated that DACA would “remain in
effect,” App. 870. But this reasoning confuses abstention with
reaffirmation. The DAPA memo did not address the merits of the DACA
policy or its legality. Thus, when the Attorney General later
determined that DACA shared DAPA’s legal defects, DHS’s decision to
reevaluate DACA was not a “strange about-face.” 908 F. 3d, at
519. It was a natural response to a newly identified problem.

															Finally, the cited statements are
unilluminating. The relevant actors were most directly Acting
Secretary Duke and the Attorney General. As the Batalla
Vidal court acknowledged, respondents did not “identif[y]
statements by [either] that would give rise to an inference of
discriminatory motive.” 291 F. Supp. 3d, at 278. Instead,
respondents contend that President Trump made critical statements
about Latinos that evince discriminatory intent. But, even as
interpreted by respondents, these statements—remote in time and
made in unrelated contexts—do not qualify as “contemporary
statements” probative of the decision at issue. Arlington
Heights , 429 U. S., at 268. Thus, like respondents’ other
points, the statements fail to raise a plausible inference that the
rescission was motivated by animus.

															*  *  *

															We do not decide whether DACA or its
rescission are sound policies. “The wisdom” of those decisions “is
none of our concern.” Chenery II , 332 U. S., at
207. We address only whether the agency complied with the
procedural requirement that it provide a reasoned explanation for
its action. Here the agency failed to consider the conspicuous
issues of whether to retain forbearance and what if anything to do
about the hardship to DACA recipients. That dual failure raises
doubts about whether the agency appreciated the scope of its
discretion or exercised that discretion in a reasonable manner. The
appropriate recourse is therefore to remand to DHS so that it may
consider the problem anew.

															The judgment in NAACP , No. 18–588, is
affirmed.[ 7 ] The judgment in Regents , No. 18–587, is vacated in part and reversed in
part. And in Batalla Vidal , No. 18–589, the February 13,
2018 order granting respondents’ motion for a preliminary
injunction is vacated, the November 9, 2017 order partially denying
the Government’s motion to dismiss is affirmed in part, and the
March 29, 2018 order partially denying the balance of the
Government’s motion to dismiss is reversed in part. All three cases
are remanded for further proceedings consistent with this
opinion.

															It is so ordered. Notes 1 Plaintiffs also raised
notice and comment claims, which uniformly failed below, and
assorted due process challenges, some of which survived motions to
dismiss. Those claims are not before us. 2 In a related challenge
not at issue here, the District Court for the District of Maryland
granted partial summary judgment in favor of the Government. Casa de Maryland v. United States Dept. of Homeland
Security , 284 F. Supp. 3d 758 (2018). After the Government
filed petitions for certiorari in the instant cases, the Fourth
Circuit reversed that decision and vacated Acting Secretary Duke’s
rescission as arbitrary and capricious. Casa de Maryland v. United States Dept. of Homeland Security , 924 F.3d 684
(2019), cert. pending, No. 18–1469. The Fourth Circuit has since
stayed its mandate. 3 Justice Kavanaugh further
argues that the contemporaneous explanation requirement applies
only to agency adjudications, not rulemakings. Post , at 5–6
(opinion concurring in judgment in part and dissenting in part).
But he cites no authority limiting this basic principle—which the
Court regularly articulates in the context of rulemakings—to
adjudications. The Government does not even raise this unheralded
argument. 4 The Government contends
that Acting Secretary Duke also focused on litigation risk.
Although the background section of her memo references a letter
from the Texas Attorney General threatening to challenge DACA, the
memo never asserts that the rescission was intended to avert
litigation. And, given the Attorney General’s conclusion that the
policy was unlawful—and thus presumably could not be maintained or
defended in its current form—it is difficult to see how the risk of
litigation carried any independent weight. 5 As the Fifth Circuit
noted, DAPA recipients were eligible for Social Security and
Medicare benefits because they had been designated “lawfully
present.” Texas , 809 F. 3d, at 168. Lawful presence is
a statutory prerequisite for receipt of certain benefits. See id., at 148 (citing 8 U. S. C. §1611). It is not
the same as forbearance nor does it flow inexorably from
forbearance. Thus, while deferred action recipients have been
designated lawfully present for purposes of Social Security and
Medicare eligibility, see 8 CFR §1.3; 42 CFR §417.422(h), agencies
can also exclude them from this designation, see 45 CFR §152.2(8)
(2019) (specifying that DACA recipients are not considered lawfully
present for purposes of coverage under the Affordable Care
Act). 6 The three-page memorandum
that established DACA is devoted entirely to forbearance, save for
one sentence directing USCIS to “determine whether [DACA
recipients] qualify for work authorization.” App. to Pet. for Cert.
101a. The benefits associated with DACA flow from a separate
regulation. See 8 CFR §1.3(a)(4)(vi); see also 42 CFR §417.422(h)
(cross-referencing 8 CFR §1.3). Thus, DHS could have addressed the
Attorney General’s determination that such benefits were
impermissible under the INA by amending 8 CFR §1.3 to exclude DACA
recipients from those benefits without rescinding the DACA
Memorandum and the forbearance policy it established. But Duke’s
rescission memo shows no cognizance of this
possibility. 7 Our affirmance of the NAACP order vacating the rescission makes it unnecessary to
examine the propriety of the nationwide scope of the injunctions
issued by the District Courts in Regents and Batalla
Vidal . SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 18–587, 18–588, and 18–589

															_________________

															DEPARTMENT OF HOMELAND SECURITY,
et al., PETITIONERS

															18–587 v. REGENTS OF THE UNIVERSITY OF CALIFORNIA,
et al.

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, et al., PETITIONERS

															18–588 v. NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, et al.; AND

															on writ of certiorari before judgment to the
united states court of appeals for the district of columbia
circuit

															CHAD WOLF, ACTING SECRETARY OF HOMELAND
SECURITY, et al., PETITIONERS

															18–589 v. MARTIN JONATHAN BATALLA VIDAL,
et al.

															on writ of certiorari before judgment to the
united states court of appeals for the second circuit

															[June 18, 2020]

															Justice Sotomayor, concurring in part,
concurring in the judgment in part, and dissenting in part.

															The majority rightly holds that the Department
of Homeland Security (DHS) violated the Administrative Procedure
Act in rescinding the Deferred Action for Childhood Arrivals (DACA)
program. But the Court forecloses any challenge to the rescission
under the Equal Protection Clause. I believe that determination is
unwarranted on the existing record and premature at this stage of
the litigation. I would instead permit respondents to develop their
equal protection claims on remand.

															Respondents’ equal protection challenges come to
us in a preliminary posture. All that respondents needed to do at
this stage of the litigation was state sufficient facts that would
“allo[w a] court to draw the reasonable inference that [a]
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S.
662 , 678 (2009). The three courts to evaluate respondents’
pleadings below held that they cleared this modest threshold. 908
F.3d 476, 518–520 (CA9 2018) (affirming the District Court’s denial
of the Government’s motion to dismiss); see also Batalla
Vidal v. Nielsen , 291 F. Supp. 3d 260, 274 (EDNY
2018).

															I too would permit respondents’ claims to
proceed on remand. The complaints each set forth particularized
facts that plausibly allege discriminatory animus. The plurality
disagrees, reasoning that “[n]one of these points, either singly or
in concert, establishes a plausible equal protection claim.” Ante , at 27. But it reaches that conclusion by discounting
some allegations altogether and by narrowly viewing the rest.

															First, the plurality dismisses the statements
that President Trump made both before and after he assumed office.
The Batalla Vidal complaints catalog then-candidate Trump’s
declarations that Mexican immigrants are “people that have lots of
problems,” “the bad ones,” and “criminals, drug dealers, [and]
rapists.” 291 F. Supp. 3d, at 276 (internal quotation marks
omitted). The Regents complaints additionally quote
President Trump’s 2017 statement comparing undocumented immigrants
to “animals” responsible for “the drugs, the gangs, the cartels,
the crisis of smuggling and trafficking, [and] MS13.” 298 F. Supp.
3d 1304, 1314 (ND Cal. 2018) (internal quotation marks omitted).
The plurality brushes these aside as “unilluminating,” “remote in
time,” and having been “made in unrelated contexts.” Ante ,
at 28.

															But “nothing in our precedent supports [the]
blinkered approach” of disregarding any of the campaign statements
as remote in time from later-enacted policies. Trump v. Hawaii , 585 U. S. ___, ___, n. 3 (2018) (Sotomayor, J.,
dissenting) (slip op., at 11, n. 3). Nor did any of the
statements arise in unrelated contexts. They bear on unlawful
migration from Mexico—a keystone of President Trump’s campaign and
a policy priority of his administration—and, according to
respondents, were an animating force behind the rescission of DACA.
Cf. ibid. (noting that Presidential Proclamation No. 9645,
82 Fed. Reg. 45161 (2017), which barred entry of individuals from
several Muslim-majority countries, was an outgrowth of the
President’s campaign statements about Muslims) . Taken
together, “the words of the President” help to “create the strong
perception” that the rescission decision was “contaminated by
impermissible discriminatory animus.” 585 U. S. , at ___
(opinion of Sotomayor, J.) (slip op., at 13). This perception
provides respondents with grounds to litigate their equal
protection claims further.

															Next, the plurality minimizes the
disproportionate impact of the rescission decision on Latinos after
considering this point in isolation. Ante , at 28 (“Were this
fact sufficient to state a claim, virtually any generally
applicable immigration policy could be challenged on equal
protection grounds”). But the impact of the policy decision must be
viewed in the context of the President’s public statements on and
off the campaign trail. At the motion-to-dismiss stage, I would not
so readily dismiss the allegation that an executive decision
disproportionately harms the same racial group that the President
branded as less desirable mere months earlier.

															Finally, the plurality finds nothing untoward in
the “specific sequence of events leading up to the challenged
decision.” Arlington Heights v. Metropolitan Housing
Development Corp. , 429 U.S.
252 , 267 (1977). I disagree. As late as June 2017, DHS insisted
it remained committed to DACA, even while rescinding a related
program, the Deferred Action for Parents of Americans and Lawful
Permanent Residents. App. 718–720. But a mere three months later,
DHS terminated DACA without, as the plurality acknowledges,
considering important aspects of the termination. The abrupt change
in position plausibly suggests that something other than questions
about the legality of DACA motivated the rescission decision.
Accordingly, it raises the possibility of a “significant mismatch
between the decision . . . made and the rationale
. . . provided.” Department of Commerce v. New
York , 588 U. S. ___, ___ (2019) (slip op., at 26). Only by
bypassing context does the plurality conclude otherwise.

															*  *  *

															The facts in respondents’ complaints create
more than a “sheer possibility that a defendant has acted
unlawfully.” Iqbal , 556 U. S., at 678. Whether they
ultimately amount to actionable discrimination should be determined
only after factual development on remand. Because the Court
prematurely disposes of respondents’ equal protection claims by
overlooking the strength of their complaints, I join all but Part
IV of the opinion and do not concur in the corresponding part of
the judgment. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 18–587, 18–588, and 18–589

															_________________

															DEPARTMENT OF HOMELAND SECURITY,
et al., PETITIONERS

															18–587 v. REGENTS OF THE UNIVERSITY OF CALIFORNIA,
et al.

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, et al., PETITIONERS

															18–588 v. NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, et al.; AND

															on writ of certiorari before judgment to the
united states court of appeals for the district of columbia
circuit

															CHAD WOLF, ACTING SECRETARY OF HOMELAND
SECURITY, et al., PETITIONERS

															18–589 v. MARTIN JONATHAN BATALLA VIDAL,
et al.

															on writ of certiorari before judgment to the
united states court of appeals for the second circuit

															[June 18, 2020]

															Justice Thomas, with whom Justice Alito and
Justice Gorsuch join, concurring in the judgment in part and
dissenting in part.

															Between 2001 and 2011, Congress considered over
two dozen bills that would have granted lawful status to millions
of aliens who were illegally brought to this country as children.
Each of those legislative efforts failed. In the wake of this
impasse, the Department of Homeland Security (DHS) under President
Barack Obama took matters into its own hands. Without any purported
delegation of authority from Congress and without undertaking a
rulemaking, DHS unilaterally created a program known as Deferred
Action for Childhood Arrivals (DACA). The three-page DACA
memorandum made it possible for approximately 1.7 million illegal
aliens to qualify for temporary lawful presence and certain federal
and state benefits. When President Donald Trump took office in
2017, his Acting Secretary of Homeland Security, acting through yet
another memorandum, rescinded the DACA memorandum. To state it
plainly, the Trump administration rescinded DACA the same way that
the Obama administration created it: unilaterally, and through a
mere memorandum.

															Today the majority makes the mystifying
determination that this rescission of DACA was unlawful. In
reaching that conclusion, the majority acts as though it is
engaging in the routine application of standard principles of
administrative law. On the contrary, this is anything but a
standard administrative law case.

															DHS created DACA during the Obama administration
without any statutory authorization and without going through the
requisite rulemaking process. As a result, the program was unlawful
from its inception. The majority does not even attempt to explain
why a court has the authority to scrutinize an agency’s policy
reasons for rescinding an unlawful program under the arbitrary and
capricious microscope. The decision to countermand an unlawful
agency action is clearly reasonable. So long as the agency’s
determination of illegality is sound, our review should be at an
end.

															Today’s decision must be recognized for what it
is: an effort to avoid a politically controversial but legally
correct decision. The Court could have made clear that the solution
respondents seek must come from the Legislative Branch. Instead,
the majority has decided to prolong DHS’ initial overreach by
providing a stopgap measure of its own. In doing so, it has given
the green light for future political battles to be fought in this
Court rather than where they rightfully belong—the political
branches. Such timidity forsakes the Court’s duty to apply the law
according to neutral principles, and the ripple effects of the
majority’s error will be felt throughout our system of
self-government.

															Perhaps even more unfortunately, the majority’s
holding creates perverse incentives, particularly for outgoing
administrations. Under the auspices of today’s decision,
administrations can bind their successors by unlawfully adopting
significant legal changes through Executive Branch agency
memoranda. Even if the agency lacked authority to effectuate the
changes, the changes cannot be undone by the same agency in a
successor administration unless the successor provides sufficient
policy justifications to the satisfaction of this Court. In other
words, the majority erroneously holds that the agency is not only
permitted, but required, to continue administering unlawful
programs that it inherited from a previous administration. I
respectfully dissent in part.[ 1 ]

															I

															A

															In 2012, after more than two dozen attempts by
Congress to grant lawful status to aliens who were brought to this
country as children,[ 2 ] the
then-Secretary of Homeland Security Janet Napolitano announced, by
memorandum, a new “prosecutorial discretion” policy known as DACA.
App. to Pet. for Cert. in No. 18–587, p. 97a. The memorandum
directed immigration enforcement officers not to remove “certain
young people who were brought to this country as children” that met
delineated criteria. Id. , at 97a–98a. In the Secretary’s
view, the program was consistent with “the framework of the
existing law.” Id. , at 101a.

															DACA granted a renewable 2-year period of
“deferred action” that made approximately 1.7 million otherwise
removable aliens eligible to remain in this country
temporarily.[ 3 ] By granting
deferred action, the memorandum also made recipients eligible for
certain state and federal benefits, including Medicare and Social
Security. See 8 U. S. C. §§1611(b)(2)–(4); 8 CFR
§1.3(a)(4)(vi) (2020); 45 CFR §152.2(4)(vi) (2019). In addition,
deferred action enabled the recipients to seek work authorization.
8 U. S. C. §1324a(h)(3)(B); 8 CFR §274a.12(c)(14).
Despite these changes, the memorandum contradictorily claimed that
it “confer[red] no substantive right [or] immigration status,”
because “[o]nly the Congress, acting through its legislative
authority, can confer these rights.” App. to Pet. for Cert. in No.
18–587, at 101a.

															In 2014, then-Secretary of Homeland Security Jeh
Johnson broadened the deferred-action program in yet another brief
memorandum. This 2014 memorandum expanded DACA eligibility by
extending the deferred-action period to three years and by relaxing
other criteria. It also implemented a related program, known as
Deferred Action for Parents of Americans and Lawful Permanent
Residents (DAPA). DAPA allowed unlawfully present parents to obtain
deferred action derivatively through their children who were either
citizens or lawful permanent residents. Approximately 4.3 million
aliens qualified for DAPA and, as with DACA, these individuals
would have become eligible for certain federal and state benefits
upon the approval of their DAPA applications. See Texas v. United States , 809 F.3d 134, 181 (CA5 2015). Nevertheless,
the 2014 memorandum repeated the incongruous assertion that these
programs “d[id] not confer any form of legal status in this
country” and added that deferred action “may be terminated at any
time at the agency’s discretion.” App. to Pet. for Cert. in No.
18–587, at 104a.

															B

															Twenty-six States filed suit to enjoin the
implementation of these new programs, DAPA and “expanded DACA,”
maintaining that they violated the Constitution, the Administrative
Procedure Act (APA), and the Immigration and Naturalization Act
(INA). The States contended that, because the 2014 memorandum
allowed aliens to receive deferred action and other benefits, it
amounted to a legislative rule that had to comply with the APA’s
notice and comment procedures. The States also argued that DHS’
decision to recategorize an entire class of aliens from “unlawfully
present” to “lawfully present” exceeded its statutory authority
under the federal immigration laws. According to the States, these
defects rendered the 2014 memorandum arbitrary, capricious, or
otherwise not in accordance with law.

															The District Court preliminarily enjoined DAPA
and expanded DACA. The Fifth Circuit affirmed, rejecting DHS’ claim
that the programs were an exercise of prosecutorial discretion. Texas , 809 F. 3d, at 167, 188. The court concluded that
the States were likely to succeed on their claim that the 2014
memorandum was a legislative rule that had to be adopted through
notice and comment rulemaking. Id. , at 171–178. The court
further concluded that the 2014 memorandum was “substantively
contrary to law” because the INA did not grant DHS the statutory
authority to implement either program. Id. , at 170,
178–186.

															This Court affirmed the Fifth Circuit’s judgment
by an equally divided vote. United States v. Texas ,
579 U. S. ___ (2016) ( per curiam ).

															C

															The 2014 memorandum was rescinded on June 15,
2017, before taking effect. Shortly after that rescission, several
of the plaintiff States sent a letter to then-Attorney General
Jefferson Sessions III. They contended that the 2012 DACA
memorandum was also legally defective because, “just like DAPA,
DACA unilaterally confers eligibility for . . . lawful
presence without any statutory authorization from Congress.” App.
873. The States wrote that they would amend their complaint to
challenge DACA if the administration did not rescind the 2012
memorandum creating DACA by September 5, 2017.

															On September 4, then-Attorney General Sessions
wrote to then-Acting Secretary of Homeland Security Elaine Duke,
advising her to rescind DACA. Sessions stated that, in his legal
opinion, DACA took effect “through executive action, without proper
statutory authority and with no established end-date, after
Congress’ repeated rejection of proposed legislation that would
have accomplished a similar result. Such an open-ended
circumvention of immigration laws was an unconstitutional exercise
of authority by the Executive Branch.” Id. , at 877. The
letter also stated that DACA was infected with the “same legal
. . . defects that the courts recognized as to DAPA,” id. , at 878, and thus DACA would likely be enjoined as
well.

															Then-Acting Secretary Duke rescinded DACA the
next day, also through a memorandum. Her memorandum began by noting
that DACA “purported to use deferred action . . . to
confer certain benefits to illegal aliens that Congress had not
otherwise acted to provide by law.” App. to Pet. for Cert. in No.
18–587, at 112a. It described the history of the Fifth Circuit
litigation, noting that the court had concluded that DAPA
“conflicted with the discretion authorized by Congress” because
“the [INA] flatly does not permit the reclassification of millions
of illegal aliens as lawfully present.” Id ., at 114a
(internal quotation marks omitted). Finally, the memorandum
accepted then-Attorney General Sessions’ legal determination that
DACA was unlawful for the same reasons as DAPA. See §1103(a)(1). In
light of the legal conclusions reached by the Fifth Circuit and the
Attorney General, then-Acting Secretary Duke set forth the
procedures for winding down DACA.

															These three cases soon followed. In each,
respondents claimed, among other things, that DACA’s rescission was
arbitrary and capricious under the APA. Two District Courts granted
a preliminary nationwide injunction, while the third vacated the
rescission.

															II

															“ ‘[A]n agency literally has no power to
act . . . unless and until Congress confers power upon
it.’ ” Arlington v. FCC , 569
U.S. 290 , 317 (2013) (Roberts, C. J., dissenting) (quoting Louisiana Pub. Serv. Comm’n v. FCC , 476 U.S.
355 , 374 (1986)). When an agency exercises power beyond the
bounds of its authority, it acts unlawfully. See, e.g. , SAS Institute Inc. v. Iancu , 584 U. S. ___, ___,
n. (2018) (slip op., at 11, n.). The 2012 memorandum creating DACA
provides a poignant illustration of ultra vires agency action.

															DACA alters how the immigration laws apply to a
certain class of aliens. “DACA [recipients] primarily entered the
country either by overstaying a visa or by entering without
inspection, and the INA instructs that aliens in both classes are
removable.” Texas v. United States , 328 F. Supp.
3d 662, 713 (SD Tex. 2018) (footnote omitted). But DACA granted its
recipients deferred action, i.e. , a decision to “decline to
institute [removal] proceedings, terminate [removal] proceedings,
or decline to institute a final order of [removal].” Reno v. American-Arab Anti-Discrimination Comm. , 525 U.S.
471 , 484 (1999) (internal quotation marks omitted). Under other
regulations, recipients of deferred action are deemed lawfully
present for purposes of certain federal benefits. See supra ,
at 4. Thus, DACA in effect created a new exception to the statutory
provisions governing removability and, in the process, conferred
lawful presence on an entire class of aliens.

															To lawfully implement such changes, DHS needed a
grant of authority from Congress to either reclassify removable
DACA recipients as lawfully present, or to exempt the entire class
of aliens covered by DACA from statutory removal procedures. No
party disputes that the immigration statutes lack an express
delegation to accomplish either result. And, an examination of the
highly reticulated immigration regime makes clear that DHS has no
implicit discretion to create new classes of lawful presence or to
grant relief from removal out of whole cloth. Accordingly, DACA is
substantively unlawful.

															This conclusion should begin and end our review.
The decision to rescind an unlawful agency action is per se lawful. No additional policy justifications or considerations are
necessary. And, the majority’s contrary holding—that an agency is
not only permitted, but required, to continue an ultra vires
action—has no basis in law.

															A

															Congress has not authorized DHS to reclassify
an entire class of removable aliens as lawfully present or to
categorically exempt aliens from statutory removal provisions.

															1

															I begin with lawful presence. As just stated,
nothing in the federal immigration laws expressly delegates to DHS
the unfettered discretion to create new categories of lawfully
present aliens. And, there is no basis for concluding that Congress
implicitly delegated to DHS the power to reclassify categories of
aliens as lawfully present. The immigration statutes provide
numerous ways to obtain lawful presence, both temporary and
permanent. The highly detailed nature of these provisions indicates
that Congress has exhaustively provided for all of the ways that it
thought lawful presence should be obtainable, leaving no discretion
to DHS to add new pathways.

															For example, federal immigration laws provide
over 60 temporary nonimmigrant visa options, including visas for
ambassadors, full-time students and their spouses and children,
those engaged to marry a United States citizen within 90 days of
arrival, athletes and performers, and aliens with specialized
knowledge related to their employers. See §§1101(a)(15)(A)–(V),
1184; 8 CFR §214.1; see also Congressional Research Service, J.
Wilson, Nonimmigrant and Immigrant Visa Categories: Data Brief 1–6
(2019) (Table 1). In addition, the statutes permit the Attorney
General to grant temporary “parole” into the United States “for
urgent humanitarian reasons or [a] significant public benefit,” 8
U. S. C. §1182(d)(5)(A); provide for temporary protected
status when the Attorney General finds that removal to a country
with an ongoing armed conflict “would pose a serious threat to [an
alien’s] personal safety,” §1254a(b)(1)(A); and allow the Secretary
of Homeland Security (in consultation with the Secretary of State)
to waive visa requirements for certain aliens for up to 90 days,
§§1187(a)–(d).

															The immigration laws are equally complex and
detailed when it comes to obtaining lawful permanent residence.
Congress has expressly specified numerous avenues for obtaining an
immigrant visa, which aliens may then use to become lawful
permanent residents. §§1201, 1255(a). Among other categories,
immigrant visas are available to specified family-sponsored aliens,
aliens with advanced degrees or exceptional abilities, certain
types of skilled and unskilled workers, “special immigrants,” and
those entering the country to “engag[e] in a new commercial
enterprise.” §§1153(a)–(b), 1154; see also Congressional Research
Service, Nonimmigrant and Immigrant Visa Categories, at 6–7 (Table
2). Refugees and asylees also may receive lawful permanent
residence under certain conditions, §1159; 8 CFR §§209.1,
209.2.[ 4 ] As with temporary
lawful presence, each avenue to lawful permanent residence status
has its own set of rules and exceptions.[ 5 ]

															As the Fifth Circuit held in the DAPA
litigation, a conclusion with which then-Attorney General Sessions
agreed, “specific and detailed provisions[ of] the INA expressly
and carefully provid[e] legal designations allowing defined classes
of aliens to be lawfully present.” Texas , 809 F. 3d, at
179. In light of this elaborate statutory scheme, the lack of any
similar provision for DACA recipients convincingly establishes that
Congress left DHS with no discretion to create an additional class
of aliens eligible for lawful presence. Congress knows well how to
provide broad discretion, and it has provided open-ended
delegations of authority in statutes too numerous to name. But when
it comes to lawful presence, Congress did something strikingly
different. Instead of enacting a statute with “broad general
directives” and leaving it to the agency to fill in the lion’s
share of the details, Mistretta v. United States , 488 U.S.
361 , 372 (1989), Congress put in place intricate specifications
governing eligibility for lawful presence. This comprehensive
scheme indicates that DHS has no discretion to supplement or amend
the statutory provisions in any manner, least of all by memorandum.
See FDA v. Brown & Williamson Tobacco Corp. , 529 U.S.
120 , 125 (2000) (An agency “may not exercise its authority in a
manner that is inconsistent with the administrative structure that
Congress enacted” (internal quotation marks omitted)); see also ETSI Pipeline Project v. Missouri , 484 U.S.
495 , 509–510 (1988).

															2

															The relief that Congress has extended to
removable aliens likewise confirms that DACA exceeds DHS’ delegated
authority. Through deferred action, DACA grants temporary relief to
removable aliens on a programmatic scale. See Texas , 328
F. Supp. 3d, at 714. But as with lawful presence, Congress did
not expressly grant DHS the authority to create categorical
exceptions to the statute’s removal requirements. And again, as
with lawful presence, the intricate level of detail in the federal
immigration laws regarding relief from removal indicates that DHS
has no discretionary authority to supplement that relief with an
entirely new programmatic exemption.

															At the outset, Congress clearly knows how to
provide for classwide deferred action when it wishes to do so. On
multiple occasions, Congress has used express language to make
certain classes of individuals eligible for deferred action. See 8
U. S. C. §§1154(a)(1)(D)(i)(II), (IV) (certain
individuals covered under the Violence Against Women Act are
“eligible for deferred action”); Victims of Trafficking and
Violence Protection Act of 2000, 114Stat. 1522 (“ ‘Any
individual described in subclause (I) is eligible for deferred
action’ ”); Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT ACT) Act of 2001, §423(b), 115Stat. 361 (“Such spouse,
child, son, or daughter may be eligible for deferred action”);
National Defense Authorization Act for Fiscal Year 2004,
§§1703(c)(1)(A), (2), 117Stat. 1694–1695 (“Such spouse or child
shall be eligible for deferred action”).[ 6 ] Congress has failed to provide similar explicit
provisions for DACA recipients, and the immigration laws contain no
indication that DHS can, at will, create its own categorical
policies for deferred action.

															Other provisions pertaining to relief from
removal further demonstrate that DHS lacked the delegated authority
to create DACA. As with lawful presence, Congress has provided a
plethora of methods by which aliens may seek relief from removal.
For instance, both permanent and temporary residents can seek
cancellation of removal if they meet certain residency requirements
and have not committed certain crimes. §§1229b(a)–(b). And certain
nonpermanent residents may have their status adjusted to permanent
residence during these proceedings. §1229b(b)(2). Aliens can apply
for asylum or withholding of removal during removal proceedings
unless they have committed certain crimes. §§1158, 1231(b)(3).
Applicants for certain nonimmigrant visas may be granted a stay of
removal until the visa application is adjudicated. §1227(d). And,
aliens may voluntarily depart rather than be subject to an order of
removal. §1229c.

															In sum, like lawful presence, Congress has
provided for relief from removal in specific and complex ways. This
nuanced detail indicates that Congress has provided the full
panoply of methods it thinks should be available for an alien to
seek relief from removal, leaving no discretion to DHS to provide
additional programmatic forms of relief.[ 7 ]

															3

															Finally, DHS could not appeal to general
grants of authority, such as the Secretary’s ability to “perform
such other acts as he deems necessary for carrying out his
authority under the provisions of this chapter,” §1103(a)(3), or to
“[e]stablis[h] national immigration enforcement policies and
priorities,” 6 U. S. C. §202(5). See also 8
U. S. C. §1103(g)(2). Because we must interpret the
statutes “as a symmetrical and coherent regulatory scheme,” Gustafson v. Alloyd Co. , 513
U.S. 561 , 569 (1995), these grants of authority must be read
alongside the express limits contained within the statute. Basing
the Secretary’s ability to completely overhaul immigration law on
these general grants of authority would eviscerate that deliberate
statutory scheme by “allow[ing the Secretary of DHS] to grant
lawful presence . . . to any illegal alien in the
United States.” Texas , 809 F. 3d, at 184. Not only
is this “an untenable position in light of the INA’s intricate
system,” ibid. , but it would also render many of those
provisions wholly superfluous due to DHS’ authority to disregard
them at will, Duncan v. Walker , 533 U.S.
167 , 174 (2001). And in addition to these fatal problems,
adopting a broad interpretation of these general grants of
authority would run afoul of the presumption that “Congress
. . . does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns. , Inc. , 531 U.S.
457 , 468 (2001). And it would also conflict with the major
questions doctrine, which is based on the expectation that Congress
speaks clearly when it delegates the power to make “decisions of
vast economic and political significance.” Utility Air
Regulatory Group v. EPA , 573 U.S.
302 , 324 (2014) ( UARG ) (internal quotation marks
omitted); see also Texas , 787 F. 3d, at 760–761.

															Read together, the detailed statutory provisions
governing temporary and lawful permanent resident status, relief
from removal, and classwide deferred-action programs lead
ineluctably to the conclusion that DACA is “inconsisten[t] with the
design and structure of the statute as a whole.” University of
Tex. Southwestern Medical Center v. Nassar , 570 U.S.
338 , 353 (2013). As the District Court stated in the DAPA
litigation and as then-Attorney General Sessions agreed, “[i]nstead
of merely refusing to enforce the INA’s removal laws against an
individual, the DHS has enacted a wide-reaching program that awards
legal presence . . . to individuals Congress has deemed
deportable or removable.” Texas v. United States , 86
F. Supp. 3d 591, 654 (SD Tex. 2015). The immigration
statutes contain a level of granular specificity that is
exceedingly rare in the modern administrative state. It defies all
logic and common sense to conclude that a statutory scheme detailed
enough to provide conditional lawful presence to groups as narrowly
defined as “alien entrepreneurs,” §1186b, is simultaneously
capacious enough for DHS to grant lawful presence to almost two
million illegal aliens with the stroke of a Cabinet secretary’s
pen.

															B

															Then-Attorney General Sessions concluded that
the initial DACA program suffered from the “same legal
. . . defects” as DAPA and expanded DACA, finding that,
like those programs, DACA was implemented without statutory
authority. App. 877–878. Not only was this determination correct,
but it is also dispositive for purposes of our review. “It is
axiomatic that an administrative agency’s power . . . is
limited to the authority granted by Congress.” Bowen v. Georgetown Univ. Hospital , 488 U.S.
204 , 208 (1988). DHS had no authority here to create DACA, and
the unlawfulness of that program is a sufficient justification for
its rescission.

															The majority opts for a different path, all but
ignoring DACA’s substantive legal defect. See ante , at
18–19. On the majority’s understanding of APA review, DHS was
required to provide additional policy justifications in order to
rescind an action that it had no authority to take. This rule “has
no basis in our jurisprudence, and support for [it] is
conspicuously absent from the Court’s opinion.” Massachusetts v. EPA , 549 U.S.
497 , 536 (2007) (Roberts, C. J., dissenting).

															The lack of support for the majority’s position
is hardly surprising in light of our Constitution’s separation of
powers. No court can compel Executive Branch officials to exceed
their congressionally delegated powers by continuing a program that
was void ab initio . Cf. Clinton v. City of New
York , 524 U.S.
417 (1998); INS v. Chadha , 462 U.S.
919 (1983); see also EPA v. EME Homer City
Generation , L. P. , 572 U.S.
489 , 542, n. 5 (2014) (Scalia, J., dissenting); Public
Citizen v. Department of Justice , 491 U.S.
440 , 487 (1989) (Kennedy, J., concurring in judgment). In
reviewing agency action, our role is to ensure that Executive
Branch officials do not transgress the proper bounds of their
authority, Arlington , 569 U. S., at 327 (Roberts,
C. J., dissenting), not to perpetuate a decision to unlawfully
wield power in direct contravention of the enabling statute’s clear
limits, see UARG , 573 U. S., at 327–328; Barnhart v. Sigmon Coal Co. , 534
U.S. 438 , 462 (2002).

															Under our precedents, DHS can only exercise the
authority that Congress has chosen to delegate to it. See UARG , 573 U. S., at 327. In implementing DACA, DHS
under the Obama administration arrogated to itself power it was not
given by Congress. Thus, every action taken by DHS under DACA is
the unlawful exercise of power. Now, under the Trump
administration, DHS has provided the most compelling reason to
rescind DACA: The program was unlawful and would force DHS to
continue acting unlawfully if it carried the program forward.

															III

															The majority’s demanding review of DHS’
decisionmaking process is especially perverse given that the 2012
memorandum flouted the APA’s procedural requirements—the very
requirements designed to prevent arbitrary decisionmaking. Even if
DHS were authorized to create DACA, it could not do so without
undertaking an administrative rulemaking. The fact that DHS did not
engage in this process likely provides an independent basis for
rescinding DACA. But at the very least, this procedural defect
compounds the absurdity of the majority’s position in these
cases.

															As described above, DACA fundamentally altered
the immigration laws. It created a new category of aliens who, as a
class, became exempt from statutory removal procedures, and it gave
those aliens temporary lawful presence. Both changes contravened
statutory limits. DACA is thus what is commonly called a
substantive or legislative rule.[ 8 ] As the name implies, our precedents state that
legislative rules are those that “have the force and effect of
law.” Chrysler Corp. v. Brown , 441 U.S.
281 , 295 (1979) (internal quotation marks omitted).

															Our precedents allow the vast majority of
legislative rules to proceed through so-called “informal” notice
and comment rulemaking. See United States v. Florida East
Coast R. Co. , 410 U.S.
224 , 237–238 (1973).[ 9 ] But
under our precedents, an agency must engage in certain procedures
mandated by the APA before its rule carries legal force. Kisor v. Wilkie , 588 U. S. ___, ___ (2019)
(plurality opinion) (slip op., at 23) (“[A] legislative rule,
. . . to be valid[,] must go through notice and
comment”); id. , at ___ (Gorsuch, J., concurring in judgment)
(slip op., at 17) (same); Perez v. Mortgage Bankers
Assn. , 575 U.S. 92, 96 (2015); cf. Azar v. Allina
Health Services , 587 U. S. ___, ___ (2019) (slip op., at
1) (same with respect to materially identical procedures under the
Medicare Act). These procedures specify that the agency “shall”
publish a notice of proposed rulemaking in the Federal Register,
justify the rule by reference to legal authority, describe “the
subjects and issues involved” in the rule, and allow interested
parties to submit comments. 5 U. S. C. §§553(b)–(c); see
also Kisor , 588 U. S., at ___ (opinion of Gorsuch, J.)
(slip op., at 17). As we have recognized recently, use of the word
“shall” indicates that these procedures impose mandatory
obligations on the agency before it can adopt a valid binding
regulation. See Maine Community Health Options v. United
States , 590 U. S. ___, ___ (2020) (slip op., at 12). After
undergoing notice and comment, the agency then publishes the final
rule, which must “articulate a satisfactory explanation for [the]
action including a rational connection between the facts found and
the choice made.” Motor Vehicle Mfrs. Assn. of United
States , Inc. v. State Farm Mut. Automobile Ins.
Co. , 463 U.S.
29 , 43 (1983) (internal quotation marks omitted). Only after
completing this process is the legislative rule a valid law. See Kisor , 588 U. S., at ___ (opinion of Gorsuch, J.) (slip
op., at 17).[ 10 ]

															Because DACA has the force and effect of law,
DHS was required to observe the procedures set out in the APA if it
wanted to promulgate a legislative rule. It is undisputed, however,
that DHS did not do so. It provided no opportunity for interested
parties to submit comments regarding the effect that the program’s
dramatic and very significant change in immigration law would have
on various aspects of society. It provided no discussion of
economic considerations or national security interests. Nor did it
provide any substantial policy justifications for treating young
people brought to this country differently from other classes of
aliens who have lived in the country without incident for many
years. And, it did not invoke any law authorizing DHS to create
such a program beyond its inexplicable assertion that DACA was
consistent with existing law. Because DHS failed to engage in the
statutorily mandated process, DACA never gained status as a legally
binding regulation that could impose duties or obligations on third
parties. See id. , at ___ (plurality opinion) (slip op., at
23); id. , at ___ (opinion of Gorsuch, J.) (slip op., at
17).

															Given this state of affairs, it is unclear to me
why DHS needed to provide any explanation whatsoever when it
decided to rescind DACA. Nothing in the APA suggests that DHS was
required to spill any ink justifying the rescission of an
invalid legislative rule, let alone that it was required to provide
policy justifications beyond acknowledging that the program was
simply unlawful from the beginning. And, it is well established
that we do not remand for an agency to correct its reasoning when
it was required by law to take or abstain from an action. See Morgan Stanley Capital Group Inc. v. Public Util. Dist.
No. 1 of Snohomish Cty. , 554 U.S.
527 , 544–545 (2008). Here, remand would be futile, because no
amount of policy explanation could cure the fact that DHS lacked
statutory authority to enact DACA in the first place.

															Instead of recognizing this, the majority now
requires the rescinding Department to treat the invalid rule as
though it were legitimate. As just explained, such a requirement is
not supported by the APA.[ 11 ] It is also absurd, as evidenced by its application to
DACA in these cases. The majority insists that DHS was obligated to
discuss its choices regarding benefits and forbearance in great
detail, even though no such detailed discussion accompanied DACA’s
issuance. And, the majority also requires DHS to discuss reliance
interests at length, even though deferred action traditionally does
not take reliance interests into account and DHS was not forced to
explain its treatment of reliance interests in the first instance
by going through notice and comment. See infra , at 23–24.
The majority’s demand for such an explanation here simply makes
little sense.

															At bottom, of course, none of this matters,
because DHS did provide a sufficient explanation for its
action. DHS’ statement that DACA was ultra vires was more than
sufficient to justify its rescission.[ 12 ] By requiring more, the majority has distorted the APA
review process beyond recognition, further burdening all future
attempts to rescind unlawful programs. Plaintiffs frequently bring
successful challenges to agency actions by arguing that the agency
has impermissibly dressed up a legislative rule as a policy
statement and must comply with the relevant procedures before
functionally binding regulated parties. See, e.g. , Mendoza v. Perez , 754 F.3d 1002 (CADC 2014); Natural Resources Defense Council v. EPA , 643 F.3d
311 (CADC 2011); National Family Planning & Reproductive
Health Assn. , Inc. v. Sullivan , 979 F.2d 227
(CADC 1992). But going forward, when a rescinding agency inherits
an invalid legislative rule that ignored virtually every rulemaking
requirement of the APA, it will be obliged to overlook that
reality. Instead of simply terminating the program because it did
not go through the requisite process, the agency will be compelled
to treat an invalid legislative rule as though it were
legitimate.[ 13 ]

															IV

															Even if I were to accept the majority’s
premise that DACA’s rescission required additional policy
justifications, the majority’s reasons for setting aside the
agency’s decision still fail.

															A

															First, the majority claims that the Fifth
Circuit discussed only the legality of the 2014 memorandum’s
conferral of benefits, not its “forbearance component”— i.e. ,
the decision not to place DACA recipients into removal proceedings. Ante , at 20. The majority, therefore, claims that,
notwithstanding the then-Attorney General’s legal conclusion,
then-Acting Secretary Duke was required to consider revoking DACA
recipients’ lawful presence and other attendant benefits while
continuing to defer their removal. Ante , at 22–23. Even
assuming the majority correctly characterizes the Fifth Circuit’s
opinion, it cites no authority for the proposition that arbitrary
and capricious review requires an agency to dissect an
unlawful program piece by piece, scrutinizing each separate element
to determine whether it would independently violate the law, rather
than just to rescind the entire program.[ 14 ]

															The then-Attorney General reviewed the thorough
decisions of the District Court and the Fifth Circuit. Those courts
exhaustively examined the INA’s text and structure, the relevant
provisions of other federal immigration statutes, the historical
practice of deferred action, and the general grants of statutory
authority to set immigration policy. Both decisions concluded that
DAPA and expanded DACA violated the carefully crafted federal
immigration scheme, that such violations could not be justified
through reference to past exercises of deferred action, and that
the general grants of statutory authority did not give DHS the
power to enact such a sweeping nonenforcement program. Based on the
reasoning of those decisions, then-Attorney General Sessions
concluded that DACA was likewise implemented without statutory
authority. He directed DHS to restore the rule of law. DHS followed
the then-Attorney General’s legal analysis and rescinded the
program. This legal conclusion more than suffices to supply the
“reasoned analysis” necessary to rescind an unlawful program. State Farm , 463 U. S., at 42.

															The majority has no answer except to suggest
that this approach is inconsistent with State Farm . See ante , at 21–22. But in doing so, the majority ignores the
fact that, unlike the typical “prior policy” contemplated by the
Court in State Farm , DACA is unlawful. Neither State
Farm nor any other decision cited by the majority addresses
what an agency must do when it has inherited an unlawful program.
It is perhaps for this reason that, rather than responding with
authority of its own, the majority simply opts to excise the
“unlawful policy” aspect from its discussion.

															B

															Second, the majority claims that DHS erred by
failing to take into account the reliance interests of DACA
recipients. Ante , at 23–26. But reliance interests are
irrelevant when assessing whether to rescind an action that the
agency lacked statutory authority to take. No amount of reliance
could ever justify continuing a program that allows DHS to wield
power that neither Congress nor the Constitution gave it. Any such
decision would be “not in accordance with law” or “in excess of
statutory . . . authority.” 5 U. S. C.
§§706(2)(A), (C). Accordingly, DHS would simply be engaging in yet
another exercise of unlawful power if it used reliance interests to
justify continuing the initially unlawful program, and a court
would be obligated to set aside that action.[ 15 ]

															Even if reliance interests were sometimes
relevant when rescinding an ultra vires action, the rescission
still would not be arbitrary and capricious here. Rather, as the
majority does not dispute, the rescission is consistent with how
deferred action has always worked. As a general matter, deferred
action creates no rights—it exists at the Government’s discretion
and can be revoked at any time. See App. to Pet. for Cert. in No.
18–587, at 104a (DACA and expanded DACA); 8 CFR §214.11(j)(3) (T
visas); §214.14(d)(2) (U visas); 62 Fed. Reg. 63249, 63253 (1997)
(discussing Exec. Order No. 12711 for certain citizens of the
People’s Republic of China). The Government has made clear time and
again that, because “deferred action is not an immigration status,
no alien has the right to deferred action. It is used solely in the
discretion of the [Government] and confers no protection or benefit
upon an alien.” DHS Immigration and Customs Enforcement Office of
Detention and Removal, Detention and Deportation Officers’ Field
Manual §20.8 (Mar. 27, 2006); see also Memorandum from D. Meissner,
Comm’r, INS, to Regional Directors et al., pp. 11–12
(Nov. 17, 2000); Memorandum from W. Yates, Assoc. Director of
Operations, DHS, Citizenship and Immigration Servs., to Director,
Vt. Serv. Center, p. 5 (2003). Thus, contrary to the
majority’s unsupported assertion, ante , at 23, this
longstanding administrative treatment of deferred action provides
strong evidence and authority for the proposition that an agency
need not consider reliance interests in this context.[ 16 ]

															Finally, it is inconceivable to require DHS to
study reliance interests before rescinding DACA considering how the
program was previously defended. DHS has made clear since DACA’s
inception that it would not consider such reliance interests.
Contemporaneous with the DACA memo, DHS stated that “DHS can
terminate or renew deferred action at any time at the agency’s
discretion.” Consideration of Deferred Action for Childhood
Arrivals Process, 89 Interpreter Releases 1557, App. 4, p. 2
(Aug. 20, 2012). In fact, DHS repeatedly argued in court that the
2014 memorandum was a valid exercise of prosecutorial discretion in
part because deferred action created no rights on which
recipients could rely. Before the Fifth Circuit, DHS stated that
“DHS may revoke or terminate deferred action and begin removal
proceedings at any time at its discretion.” Brief for Appellants in Texas v. United States , No. 15–40238, p. 7; see
also id. , at 45–46. And before this Court, in that same
litigation, DHS reiterated that “DHS has absolute discretion to
revoke deferred action unilaterally, without notice or process.”
Brief for United States in United States v. Texas ,
O. T. 2015, No. 15–674, p. 5; see also id. , at 37.
If that treatment of reliance interests was incorrect, it provides
yet one more example of a deficiency in DACA’s issuance, not its
rescission.

															*  *  *

															President Trump’s Acting Secretary of Homeland
Security inherited a program created by President Obama’s Secretary
that was implemented without statutory authority and without
following the APA’s required procedures. Then-Attorney General
Sessions correctly concluded that this ultra vires program should
be rescinded. These cases could—and should—have ended with a
determination that his legal conclusion was correct.

															Instead, the majority today concludes that DHS
was required to do far more. Without grounding its position in
either the APA or precedent, the majority declares that DHS was
required to overlook DACA’s obvious legal deficiencies and provide
additional policy reasons and justifications before restoring the
rule of law. This holding is incorrect, and it will hamstring all
future agency attempts to undo actions that exceed statutory
authority. I would therefore reverse the judgments below and remand
with instructions to dissolve the nationwide injunctions. Notes 1 I concur in the judgment
insofar as the majority rejects respondents’ equal protection
claim. 2 See Immigrant Children’s
Educational Advancement and Dropout Prevention Act of 2001,
H. R. 1582, 107th Cong., 1st Sess.; Student Adjustment Act of
2001, H. R. 1918, 107th Cong., 1st Sess.; DREAM Act, S. 1291,
107th Cong., 1st Sess. (2001); DREAM Act, S. 1545, 108th Cong., 1st
Sess. (2003); Student Adjustment Act of 2003, H. R. 1684,
108th Cong., 1st Sess.; DREAM Act, S. 2863, 108th Cong., 2d Sess.,
Tit. XVIII (2003); DREAM Act of 2005, S. 2075, 109th Cong., 1st
Sess.; Comprehensive Immigration Reform Act of 2006, S. 2611, 109th
Cong., 2d Sess., Tit. VI, Subtitle C; American Dream Act,
H. R. 5131, 109th Cong., 2d Sess. (2006); DREAM Act of 2007,
S. 774, 110th Cong., 1st Sess.; DREAM Act of 2007, S. 2205, 110th
Cong., 1st Sess.; STRIVE Act of 2007, H. R. 1645, 110th Cong.,
1st Sess., Tit. VI, Subtitle B; Comprehensive Immigration Reform
Act of 2007, S. 1348, 110th Cong., 1st Sess., Tit. VI, Subtitle C;
DREAM Act of 2009, S. 729, 111th Cong., 1st Sess.; American Dream
Act, H. R. 1751, 111th Cong., 1st Sess.; Comprehensive
Immigration Reform Act of 2010, S. 3932, 111th Cong., 2d Sess.,
Tit. V, Subtitle D; DREAM Act of 2010, S. 3827, 111th Cong., 2d
Sess.; DREAM Act of 2010, S. 3962, 111th Cong., 2d Sess.; DREAM Act
of 2010, S. 3963, 111th Cong., 2d Sess.; DREAM Act of 2010, S.
3992, 111th Cong., 2d Sess.; DREAM Act of 2010, H. R. 6497,
111th Cong., 2d Sess.; DREAM Act of 2011, S. 952, 112th Cong., 1st
Sess. 3 See J. Passel & M.
Lopez, Pew Research Center, Up to 1.7 Million Unauthorized
Immigrant Youth May Benefit From New Deportation Rules (Aug. 14,
2012). 4 The immigration statutes
also provide for conditional lawful permanent residence status. See
§1186a(b)(1)(A)(i) (two years for spouses to demonstrate that the
marriage “was [not] entered into for the purpose of procuring an
alien’s admission as an immigrant”); §1186b (qualifying business
entrepreneurs). 5 For instance, Congress
has carved out rules for aliens who served in the Armed Forces,
§§1438–1440, and alien spouses who have been subject to domestic
abuse, §§1186a(c)(4)(C)–(D). 6 In the DAPA litigation,
DHS noted that some deferred-action programs have been implemented
by the Executive Branch without explicit legislation. But
“ ‘past practice does not, by itself, create [executive]
power.’ ” Medellín v. Texas , 552 U.S.
491 , 532 (2008) (quoting Dames & Moore v. Regan , 453 U.S.
654 , 686 (1981)). If any of these programs had been challenged,
it would seem that they would be legally infirm for the same
reasons as DACA. Moreover, if DHS had the authority to create new
categories of aliens eligible for deferred action, then all of
Congress’ deferred-action legislation was but a superfluous
exercise. Duncan v. Walker , 533
U.S. 167 , 174 (2001). Finally, whereas some deferred-action
programs were followed by legislation, DACA has existed for eight
years, and Congress is no closer to a legislative solution than it
was in 2012. See, e.g. , American Dream and Promise Act of
2019, H. R. 6, 116th Cong., 1st Sess. 7 It is uncontested that
deferred action frequently occurs on a case-by-case basis, often
justified on the grounds that the agency lacks resources to remove
all removable aliens. Even assuming that these ad hoc
exercises of discretion are permissible, however, we have stated
that “[a]n agency confronting resource constraints may change its
own conduct, but it cannot change the law.” Utility Air
Regulatory Group v. EPA , 573 U.S.
302 , 327 (2014). 8 The majority tacitly
acknowledges as much, as it must. See ante , at 11–12.
Otherwise, the majority would have to accept that DACA was nothing
more than a policy of prosecutorial discretion, which would make
its rescission unreviewable. See Heckler v. Chaney , 470 U.S.
821 , 831 (1985). 9 As I have previously
pointed out, “the APA actually contemplated a much more formal
process for most rulemaking.” Perez v. Mortgage Bankers
Assn. , 575 U.S. 92, 128, n. 5 (2015) (opinion concurring
in judgment). 10 The
APA also provides certain exceptions from notice and comment
rulemaking. For example, an agency may promulgate a legally binding
rule without notice and comment if good cause exists to do so. 5
U. S. C. §553(b)(B). This text would become a nullity if
the agency could achieve the same effect by simply dispensing with
notice and comment procedures altogether. 11 Thus,
it is not that the APA “ should not” be construed to support
the majority’s result, ante , at 26 (emphasis added), it is
that the APA does not and cannot support that
result. 12 I
express no view on what other reasons would justify an agency’s
decision to rescind a procedurally unlawful action. I merely point
out that correctly concluding that the program was illegal is
sufficient. 13 In my
view, even if DACA were permitted under the federal immigration
laws and had complied with the APA, it would still violate the
Constitution as an impermissible delegation of legislative power.
See Department of Transportation v. Association of
American Railroads , 575 U.S. 43, 77 (2015) (Thomas, J.,
concurring in judgment). Putting aside this constitutional concern,
however, the notice and comment process at least attempts to
provide a “surrogate political process” that takes some of the
sting out of the inherently undemocratic and unaccountable
rulemaking process. Asimow, Interim-Final Rules: Making Haste
Slowly, 51 Admin. L. Rev. 703, 708 (1999). 14 The
majority’s interpretation of the Fifth Circuit’s opinion is highly
questionable. Because a grant of deferred action renders DACA
recipients eligible for certain benefits and work authorization, it
is far from clear that the Department could separate DACA’s
“forbearance component” from the major benefits it conferred
without running into yet another APA problem. The majority points
to the fact that, under the Patient Protection and Affordable Care
Act of 2010, relevant regulations exclude those receiving deferred
action through DACA from coverage. Ante , at 19, n. 5.
But that misses the point. Those regulations were promulgated
before “anyone with deferred action under the DACA process
applie[d]” for those benefits. See 77 Fed. Reg. 52616 (2012). By
contrast, DACA recipients have been eligible for and have received
Medicare, Social Security, and work authorization for years. DHS
therefore is not writing on a blank slate. Under the majority’s
rule, DHS would need to amend all relevant regulations and explain
why all recipients of deferred action who have previously
received such benefits may no longer receive them. Alternatively
and perhaps more problematically, it would need to provide a reason
why other recipients of deferred action should continue to qualify,
while DACA recipients should not. It thus seems highly likely that
the majority’s proposed course of action would be subject to
serious arbitrary and capricious challenges. 15 The
majority contends that this argument does not carry force because
the rescission implemented a winddown period during which
recipients would continue to receive benefits. But whether DHS’
decision to wind down DACA was lawful is a separate question from
whether DHS was required to consider reliance interests before
discontinuing an unlawful program. 16 The
majority’s approach will make it far more difficult to change
deferred-action programs going forward, which is hardly in keeping
with this Court’s own understanding that deferred action is an
“exercise in administrative discretion” used for administrative
“convenience.” Reno v. American-Arab Anti-Discrimination
Comm. , 525 U.S.
471 , 484 (1999). Agencies will likely be less willing to grant
deferred action knowing that any attempts to undo it will require
years of litigation and time-consuming rulemakings. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 18–587, 18–588, and 18–589

															_________________

															DEPARTMENT OF HOMELAND SECURITY,
et al., PETITIONERS

															18–587 v. REGENTS OF THE UNIVERSITY OF CALIFORNIA,
et al.

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, et al., PETITIONERS

															18–588 v. NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, et al.; AND

															on writ of certiorari before judgment to the
united states court of appeals for the district of columbia
circuit

															CHAD WOLF, ACTING SECRETARY OF HOMELAND
SECURITY, et al., PETITIONERS

															18–589 v. MARTIN JONATHAN BATALLA VIDAL,
et al.

															on writ of certiorari before judgment to the
united states court of appeals for the second circuit

															[June 18, 2020]

															Justice Alito, concurring in the judgment in
part and dissenting in part.

															Anyone interested in the role that the Federal
Judiciary now plays in our constitutional system should consider
what has happened in these cases. Early in the term of the current
President, his administration took the controversial step of
attempting to rescind the Deferred Action for Childhood Arrivals
(DACA) program. Shortly thereafter, one of the nearly 700 federal
district court judges blocked this rescission, and since then, this
issue has been mired in litigation. In November 2018, the Solicitor
General filed petitions for certiorari, and today, the Court still
does not resolve the question of DACA’s rescission. Instead, it
tells the Department of Homeland Security to go back and try again.
What this means is that the Federal Judiciary, without holding that
DACA cannot be rescinded, has prevented that from occurring during
an entire Presidential term. Our constitutional system is not
supposed to work that way.

															I join Justice Thomas’s opinion. DACA presents a
delicate political issue, but that is not our business. As Justice
Thomas explains, DACA was unlawful from the start, and that alone
is sufficient to justify its termination. But even if DACA were
lawful, we would still have no basis for overturning its
rescission. First, to the extent DACA represented a lawful exercise
of prosecutorial discretion, its rescission represented an exercise
of that same discretion, and it would therefore be unreviewable
under the Administrative Procedure Act. 5 U. S. C.
§701(a)(2); see Heckler v. Chaney , 470 U.S.
821 , 831–832 (1985). Second, to the extent we could review the
rescission, it was not arbitrary and capricious for essentially the
reasons explained by Justice Kavanaugh. See post , at 4–6
(opinion concurring in the judgment in part and dissenting in
part). SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 18–587, 18–588, and 18–589

															_________________

															DEPARTMENT OF HOMELAND SECURITY,
et al., PETITIONERS

															18–587 v. REGENTS OF THE UNIVERSITY OF CALIFORNIA,
et al.

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, et al., PETITIONERS

															18–588 v. NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, et al.; AND

															on writ of certiorari before judgment to the
united states court of appeals for the district of columbia
circuit

															CHAD WOLF, ACTING SECRETARY OF HOMELAND
SECURITY, et al., PETITIONERS

															18–589 v. MARTIN JONATHAN BATALLA VIDAL,
et al.

															on writ of certiorari before judgment to the
united states court of appeals for the second circuit

															[June 18, 2020]

															Justice Kavanaugh, concurring in the judgment
in part and dissenting in part.

															For the last 20 years, the country has engaged
in consequential policy, religious, and moral debates about the
legal status of millions of young immigrants who, as children, were
brought to the United States and have lived here ever since. Those
young immigrants do not have legal status in the United States
under current statutory law. They live, go to school, and work here
with uncertainty about their futures. Despite many attempts over
the last two decades, Congress has not yet enacted legislation to
afford legal status to those immigrants.

															In 2012, exercising its view of the Executive’s
prosecutorial discretion under Article II and the immigration laws,
President Obama’s administration unilaterally instituted a program
known as Deferred Action for Childhood Arrivals, or DACA. Under
DACA, eligible young immigrants may apply for and receive deferred
action. They must renew their DACA status every two years. Under
the program, the Executive Branch broadly forbears from enforcing
certain immigration removal laws against DACA recipients. And by
virtue of the forbearance, DACA recipients also become eligible for
work authorization and other benefits.

															Since 2017, President Trump’s administration has
sought to rescind DACA based on its different and narrower
understanding of the Executive’s prosecutorial discretion under
Article II and the immigration laws. In its view, the Executive
Branch legally may not, and as a policy matter should not, unilaterally forbear from enforcing the immigration laws
against such a large class of individuals. The current
administration has stated that it instead wants to work with
Congress to enact comprehensive legislation that would address the
legal status of those immigrants together with other significant
immigration issues.

															The question before the Court is whether the
Executive Branch acted lawfully in ordering rescission of the
ongoing DACA program. To begin with, all nine Members of the Court
accept, as do the DACA plaintiffs themselves, that the Executive
Branch possesses the legal authority to rescind DACA and to resume
pre-DACA enforcement of the immigration laws enacted by Congress.
Having previously adopted a policy of prosecutorial discretion and
nonenforcement with respect to a particular class of offenses or
individuals, the Executive Branch has the legal authority to
rescind such a policy and resume enforcing the law enacted by
Congress. The Executive Branch’s exercise of that rescission
authority is subject to constitutional constraints and may also be
subject to statutory constraints. The narrow legal dispute here
concerns a statutory constraint—namely, whether the Executive
Branch’s action to rescind DACA satisfied the general
arbitrary-and-capricious standard of the Administrative Procedure
Act, or APA.

															The APA’s arbitrary-and-capricious standard
requires that agency action be reasonable and reasonably explained.
As the Court has long stated, judicial review under that standard
is deferential to the agency. The Court may not substitute its
policy judgment for that of the agency. The Court simply ensures
that the agency has acted within a broad zone of reasonableness
and, in particular, has reasonably considered the relevant issues
and reasonably explained the decision. See FCC v. Fox
Television Stations, Inc. , 556 U.S.
502 (2009); Motor Vehicle Mfrs. Assn. of United States,
Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S.
29 (1983).

															The Executive Branch explained its decision to
rescind DACA in two sequential memorandums by successive
Secretaries of Homeland Security: the 2017 Duke Memorandum and the
2018 Nielsen Memorandum. The Duke Memorandum focused on DACA’s
perceived legal flaws. The Court today finds the Duke Memorandum
insufficient under the APA’s arbitrary-and-capricious standard.

															But regardless of whether the Court is correct
about the Duke Memorandum, the Nielsen Memorandum more fully
explained the Department’s legal reasons for rescinding DACA, and
clarified that even if DACA were lawful, the Department would still
rescind DACA for a variety of policy reasons. The Nielsen
Memorandum also expressly addressed the reliance interests of DACA
recipients. The question under the APA’s deferential
arbitrary-and-capricious standard is not whether we agree with the
Department’s decision to rescind DACA. The question is whether the
Nielsen Memorandum reasonably explained the decision to rescind
DACA. Under ordinary application of the arbitrary-and-capricious
standard, the Nielsen Memorandum—with its alternative and
independent rationales and its discussion of reliance—would pass
muster as an explanation for the Executive Branch’s action.

															The Nielsen Memorandum was issued nine months
after the Duke Memorandum. Under the Administrative Procedure Act,
the Nielsen Memorandum is itself a “rule” setting forth “an agency
statement of general . . . applicability and future
effect designed to implement . . . policy.” 5
U. S. C. §551(4). Because it is a rule, the Nielsen
Memorandum constitutes “agency action.” §551(13). As the Secretary
of Homeland Security, Secretary Nielsen had the authority to decide
whether to stick with Secretary Duke’s decision to rescind DACA, or
to make a different decision. Like Secretary Duke, Secretary
Nielsen chose to rescind DACA, and she provided additional
explanation. Her memorandum was akin to common forms of agency
action that follow earlier agency action on the same subject—for
example, a supplemental or new agency statement of policy, or an
agency order with respect to a motion for rehearing or
reconsideration. Courts often consider an agency’s additional
explanations of policy or additional explanations made, for
example, on agency rehearing or reconsideration, or on remand from
a court, even if the agency’s bottom-line decision itself does not
change.

															Yet the Court today jettisons the Nielsen
Memorandum by classifying it as a post hoc justification for
rescinding DACA. Ante , at 14–16. Under our precedents,
however, the post hoc justification doctrine merely
requires that courts assess agency action based on the official
explanations of the agency decisionmakers, and not based on
after-the-fact explanations advanced by agency lawyers during
litigation (or by judges). See, e.g., State Farm , 463
U. S., at 50 (“courts may not accept appellate counsel’s post hoc rationalizations for agency action”); FPC v. Texaco Inc. , 417 U.S.
380 , 397 (1974) (same); NLRB v. Metropolitan Life
Ins. Co. , 380 U.S.
438 , 443–444 (1965) (same); Burlington Truck Lines, Inc. v. United States , 371 U.S.
156 , 168–169 (1962) (same). As the D. C. Circuit has
explained, the post hoc justification doctrine “is not
a time barrier which freezes an agency’s exercise of its judgment
after an initial decision has been made and bars it from further
articulation of its reasoning. It is a rule directed at reviewing
courts which forbids judges to uphold agency action on the basis of
rationales offered by anyone other than the proper decisionmakers.” Alpharma, Inc. v. Leavitt , 460 F.3d 1 , 6 (2006) (Garland, J.) (internal quotation marks
omitted).

															Indeed, the ordinary judicial remedy for an
agency’s insufficient explanation is to remand for further
explanation by the relevant agency personnel. It would make little
sense for a court to exclude official explanations by agency
personnel such as a Cabinet Secretary simply because the
explanations are purportedly post hoc , and then to turn
around and remand for further explanation by those same agency
personnel. Yet that is the upshot of the Court’s application of the post hoc justification doctrine today. 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. Ante, at
20–26.

															To be sure, cases such as Overton Park and Camp v. Pitts suggest that courts reviewing
certain agency adjudications may in some circumstances
decline to examine an after-the-fact agency explanation. See Camp v. Pitts , 411 U.S.
138 , 142–143 (1973) ( per curiam ); Citizens to
Preserve Overton Park, Inc. v. Volpe , 401 U.S.
402 , 419–421 (1971). But agency adjudications are “concerned
with the determination of past and present rights and liabilities,”
Attorney General’s Manual on the Administrative Procedure Act 14
(1947), and implicate the due process interests of the individual
parties to the adjudication. Judicial review of an adjudication
therefore ordinarily focuses on what happened during the agency’s
adjudication process of deciding that individual case.

															Even if certain agency adjudications have a
slightly more stringent restriction on post hoc explanations, the APA is “based upon a dichotomy between rule
making and adjudication,” ibid ., and this case involves an
ongoing agency rule that has future effect—the rescission of DACA.
The Nielsen Memorandum implements and explains the rescission of
DACA. I am aware of no case from this Court, and the Court today
cites none, that has employed the post hoc justification
doctrine to exclude an agency’s official explanation of an agency
rule. For purposes of arbitrary-and-capricious review, it does not
matter whether the latest official explanation was two years ago or
three years ago. What matters is whether the explanation was
reasonable and followed the requisite procedures. In my view, the
Court should consider the Nielsen Memorandum in deciding whether
the Department’s rescission of DACA satisfies the APA’s
arbitrary-and-capricious standard.

															Because the Court excludes the Nielsen
Memorandum, the Court sends the case back to the Department of
Homeland Security for further explanation. Although I disagree with
the Court’s decision to remand, the only practical consequence of
the Court’s decision to remand appears to be some delay. The
Court’s decision seems to allow the Department on remand to relabel
and reiterate the substance of the Nielsen Memorandum, perhaps with
some elaboration as suggested in the Court’s opinion. Ante, at 23–26.[ 1 ]

															*  *  *

															The Court’s resolution of this narrow APA
issue of course cannot eliminate the broader uncertainty over the
status of the DACA recipients. That uncertainty is a result of
Congress’s inability thus far to agree on legislation, which in
turn has forced successive administrations to improvise, thereby
triggering many rounds of relentless litigation with the prospect
of more litigation to come. In contrast to those necessarily
short-lived and stopgap administrative measures, the Article I
legislative process could produce a sturdy and enduring solution to
this issue, one way or the other, and thereby remove the
uncertainty that has persisted for years for these young immigrants
and the Nation’s immigration system. In the meantime, as to the
narrow APA question presented here, I appreciate the Court’s
careful analysis, but I ultimately disagree with its treatment of
the Nielsen Memorandum. I therefore respectfully dissent from the
Court’s judgment on plaintiffs’ APA claim, and I concur in the
judgment insofar as the Court rejects plaintiffs’ equal protection
claim. Notes 1 Because I conclude that
the Executive Branch satisfied the APA’s arbitrary-and-capricious
standard, I need not consider whether its prosecutorial enforcement
policy was “committed to agency discretion by law” and therefore
not subject to APA arbitrary-and-capricious review in the first
place. 5 U. S. C. §701(a)(2). Several judges have
advanced arguments suggesting that DACA—at least to the extent it
was simply an exercise of forbearance authority—and the repeal of
DACA are decisions about whether and to what extent to exercise
prosecutorial discretion against a class of offenses or
individuals, and are therefore unreviewable under the APA as
“committed to agency discretion by law.” Ibid. ; see Casa
De Maryland v. United States Dept. of Homeland Security ,
924 F.3d 684, 709–715 (CA4 2019) (Richardson, J., concurring in
part and dissenting in part); Regents of Univ. Cal. v. United States Dept. of Homeland Security , 908 F.3d 476,
521–523 (CA9 2018) (Owens, J., concurring in judgment); see also Texas v. United States , 809 F.3d 134, 196–202 (CA5
2015) (King, J., dissenting); Texas v. United States ,
787 F.3d 733, 770–776 (CA5 2015) (Higginson, J., dissenting); cf. Heckler v. Chaney , 470 U.S.
821 , 831–835 (1985); ICC v. Locomotive Engineers , 482 U.S.
270 , 277–284 (1987); United States v. Nixon , 418 U.S.
683 , 693 (1974) (“the Executive Branch has exclusive authority
and absolute discretion to decide whether to prosecute a case”); In re Aiken County , 725 F.3d 255, 262–264 (CADC
2013).