On its surface, deferred action is simple: it is a decision by Executive Branch officials to postpone deportation proceedings against an individual or group that is otherwise eligible to be removed from the United States.Deferred action is an exercise of the Executive’s inherent authority to manage its policies, but is not expressly grounded in statute Despite this lack of statutory authority, Congress and the Supreme Court have historically recognized deferred action policies. Indeed, records of such Executive discretion date back to the early twentieth century.The Executive, grounding its justification in humanitarian concerns, has continued to institute categorical deferred action programs well into the modern era. Perhaps the most well-known example of such a program is the deferred action policy known as Deferred Action for Childhood Arrivals (“DACA”).
This Commentary evaluates the administrative law issues presented by the upcoming case DHS v. Regents of the University of California, which concerns the 2017 rescission of DACA. Importantly, this Commentary does not evaluate the legality of DACA itself or argue that DACA cannot be rescinded as a matter of Executive discretion. Instead, the focus is on whether the way in which the policy was rescinded was appropriate. The primary challenge to the rescission’s legality is that DHS based the rescission on a determination that maintaining DACA was illegal—instead of rescinding it on policy grounds. For various reasons, this distinction arguably opens the rescission to judicial review and even places its legality in question. In order to evaluate these concerns, the Supreme Court must first consider whether the rescission is subject to judicial review; if review is appropriate, the Court must then determine whether the Executive’s decision to rescind DACA was arbitrary and capricious under the Administrative Procedure Act.