Reading Regents and the Political Significance of Law

When the Supreme Court handed down its decision in Department of Homeland Security v. Regents of the University of California, in June 2020, advocates celebrated. DACA—an acronym that no longer requires definition—lived to see another day. Newspaper headlines marked the decision as a decisive rebuff of the Trump administration’s efforts to end the Obama-era program that shielded so-called Dreamers from deportation while authorizing them to work in the United States. Initiated in 2012, the Deferred Action for Childhood Arrivals program had survived almost four years of a presidential administration overtly hostile to immigrants and immigration—a government bent on unraveling as much of the administrative and political legacy of its immediate predecessors as possible. The Supreme Court largely affirmed the Ninth Circuit’s holding that efforts by the Department of Homeland Security (DHS) to rescind DACA were arbitrary and capricious and therefore invalid, sending DHS back to the drawing board to accomplish its objectives. With the 2020 presidential election less than five months away and the very real possibility of regime change in the air, the decision seemed decisive. The Supreme Court had saved DACA, at least for the time being. On the other side of the presidential election, we can now say that the Dreamers and their lawyers succeeded in using the courts to run out the clock on one of the more high-profile efforts of the Trump presidency. This success calls for an explanation. The original legal theory of DACA was predicated on its discretionary and therefore defeasible character. The government justified DACA as a series of individual acts of prosecutorial discretion, defined as the inherent discretion law enforcement officials possess to forbear from enforcement, at their convenience, in order to prioritize enforcement resources. DACA’s founding document—a memorandum issued by the Secretary of Homeland Security—included the disclaimer standard in Executive orders and agency guidance documents: “this memorandum confers no substantive right.” DACA’s promise, then, lasted as long as the Executive wanted it to. The promise was durable as long as President Obama remained in office but unenforceable should the Executive branch fall into the hands of officials hostile to the program