Home > FT > Regents of Univ. of Calif.: Trump Administration Held Accountable by the APA but a Missed Opportunity for the Constitution

Regents of Univ. of Calif.: Trump Administration Held Accountable by the APA but a Missed Opportunity for the Constitution

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24 Jun 2020
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June 24, 2020

Dep’t of Homeland Sec. v. Regents of the Univ. of California, 591 U.S. ___ (2020) (Roberts, C.J.).
Response by Natasha Merle & Samuel Spital*
Geo. Wash. L. Rev. On the Docket (Oct. Term 2019)
Slip Opinion | SCOTUSblog

Regents of Univ. of Calif.: Trump Administration Held Accountable by the APA but a Missed Opportunity for the Constitution

President Trump has made statements of racial animus towards Latinx persons and persons of Mexican ancestry since the inception of his presidential campaign. Candidate Trump referred to Mexican immigrants as “criminals, drug dealers, and rapists”; derided people who protested at one of his rallies as “thugs who were flying the Mexican flag”;1 and stated that an American federal judge of Mexican descent could not fairly preside over a lawsuit in which he was a party because “[h]e’s a Mexican.”2

Within nine months of being inaugurated, President Trump’s administration rescinded the Deferred Action for Childhood Arrivals (“DACA”) program, which protected some 700,000 “Dreamers” from deportation. The majority of Dreamers are persons of Mexican heritage. The program—initiated by the Obama Administration in 2012—allows individuals who were brought to the United States as children and meet specific criteria, including criminal background checks, to request deferred action for a period of two years, subject to renewal, and to be eligible to obtain work authorization and participate in government programs including Social Security and Medicaid. The program has allowed nearly 700,000 young people to come out of the shadows, study, and work without fear of removal.

The federal courts blocked DACA’s rescission. Last week, in a 5–4 ruling, the Supreme Court agreed that the rescission had to be set aside because it was arbitrary and capricious in violation of the Administrative Procedures Act (“APA”). Written by Chief Justice Roberts, the Court’s decision in Department of Homeland Security v. Regents of the University of California3 allows DACA to remain in place and orders Department of Homeland Security (“DHS”) to properly consider the issues of deportation forbearance and the hardship to DACA recipients anew.4

Regents is a momentous opinion, which—at least temporarily—protects hundreds of thousands of people for whom this country has long been home. It also demonstrates that a (bare) majority of the Court remains willing to check the Administration’s most serious overreaches under the APA. At the same time, the decision represents a troubling missed opportunity for the Court to confront the evidence that DACA’s rescission was motivated, at least in part, by unconstitutional racial animus. Rather than acknowledge the harms caused by statements of overt racial hostility by presidential candidates—and the constitutional significance of those statements—a plurality of the Court appears to have exempted such statements from meaningful scrutiny. As Justice Sotomayor pointed out, that decision cannot be squared with precedent. It also fails to recognize the severe consequences of racist campaign rhetoric and signals a troubling reluctance by the Court to fairly adjudicate race discrimination claims.

The Court’s Decision: The Majority’s Ode to Administrative Law

After working its way through the lower courts, the Supreme Court was presented with questions concerning the reviewability of DHS’s DACA rescission and, if reviewable, whether: (a) DHS’s decision was arbitrary and capricious in violation of the APA, and (b) whether plaintiffs had stated a claim under the equal protection component of the Fifth Amendment’s due process clause. The NAACP Legal Defense and Educational Fund (LDF) filed an amicus brief with the Supreme Court, focusing on the equal protection question. LDF argued that DACA’s rescission was legally impermissible because it was motivated, at least in part, by racial discrimination against Latinx persons and highlighted President Trump’s statements of overt animus as important evidence in support of that conclusion.

The Court easily found that DACA’s rescission is a reviewable agency action, relying on the fundamental presumption of judicial review set forth in the APA and rejecting the Government’s argument that DACA is one of those rare agency actions committed to the agency’s unfettered discretion.5 Turning next to the merits, the heart of the Court’s opinion was its analysis and definitive holding that DHS’s decision to rescind DACA was arbitrary and capricious under the APA.6 In so doing, the Court held the reasons offered by DHS Secretary Kirstjen Nielsen in a memo that postdated the rescission constituted “impermissible post hoc rationalizations,” which bore little relationship to the reasoning offered by her predecessor, Acting Secretary Elaine Duke, when Duke rescinded DACA.7 In doing so, the Court recognized that consideration of only contemporaneous explanations for agency action is not an “idle and useless formality,”8 but important for agency accountability and instilling public confidence in agency action.9

The Court then held that it was arbitrary and capricious for Secretary Duke to rescind DACA based solely on Attorney General Jefferson Session’s conclusion that DACA was unlawful. The Court explained that Sessions had in fact considered only the benefits eligibility portion of DACA, and his opinion “neither addressed the [deportation] forbearance policy at the heart of DACA nor compelled DHS to abandon that policy.”10 Moreover, the Court explained that Secretary Duke failed to grapple with the reliance interests the program engendered in DACA recipients.11 The Court recognized 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,”12 and that the consequences of rescission would also impact “DACA recipients’ families, including their 200,000 U.S.-citizen children, . . . the schools where DACA recipients study and teach, and . . . the employers who have invested time and money in training them.”13 The Court explained that, under basic principles of administrative law, DHS had to take these interests into account.14

Because DHS had acted arbitrarily and capriciously in rescinding DACA, the Court held that the rescission must be set aside and the issue remanded to DHS so it could consider these issues anew.15

Plurality Opinion: Giving Short Shrift to the Constitution

Even as five Justices in Regents recognized that the rescission of DACA was arbitrary and capricious, four of those same Justices disregarded powerful evidence that the rescission also violated the Constitution because it was motivated, at least in part, by animus against Latinx persons. That evidence includes the clear and unequivocal words of President Trump himself, who has repeatedly made statements evincing overt bias against immigrants of color. Most significant here are President Trump’s statements, while campaigning for President, referring to immigrants from Mexico (who are the majority of DACA’s recipients) as the “bad ones,” “criminals,” “rapists,” and “drug dealers.”16

Without acknowledging the substance of President Trump’s egregious statements, a four-Justice plurality dismissed their significance in a single paragraph. The plurality began by stating that the “relevant actors were most directly” not President Trump, but Acting DHS Secretary Duke, who formally rescinded DACA, and Attorney General Sessions, who advised her to do so.17 This hardly makes evidence of President Trump’s discriminatory animus irrelevant, however. Presidents wield significant influence over their cabinet officials, who serve at the will of the President, and President Trump has repeatedly made his influence clear in a variety of contexts, including with respect to immigration matters.18 The plurality did not dispute this point, and it did not suggest that a president’s statements are irrelevant in assessing the motives behind policies implemented by cabinet officials.

Instead, the plurality reasoned that President Trump’s statements were not probative of the motives underlying DACA’s rescission because, in the plurality’s view, they were “remote in time and made in unrelated contexts.”19 That conclusory assertion is inconsistent with both common sense and the Court’s prior precedent. In Arlington Heights v. Metropolitan Housing Development Corp.,20 the Court reasoned that “[d]etermining whether invidious discriminatory purpose was a motivating factor [in a government decision] demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”21 The evidence at issue here comfortably fits in that category. The majority of DACA recipients were brought to this country from Mexico, and statements by candidate Trump evincing overt animus against Mexican immigrants are probative in understanding why his administration (acting in an arbitrary and capricious manner) rescinded DACA. As Justice Sotomayor explained in her opinion dissenting on this issue, opposition to undocumented “migration from Mexico [was] a keystone of President Trump’s campaign,”22 and “[t]aken together, ‘the words of the President’ help to ‘create the strong perception’ that the rescission decision was ‘contaminated by impermissible discriminatory animus.’”23

The plurality nonetheless asserted that President Trump’s statements were not probative under Arlington Heights because they were not “contemporary statements” made by a decisionmaker during the rescission process.24 But, while such “contemporary statements” are one of the specific factors identified in Arlington Heights as probative of intentional discrimination, the Court in Arlington Heights explained that it was not “purporting to be exhaustive” when it identified these specific factors.25 Because statements by candidate Trump are obviously relevant as to the motives behind actions taken by the Trump administration, they are significant under Arlington Heights. In Justice Sotomayor’s words: “‘nothing in our precedent supports the blinkered approach’ of disregarding any of the campaign statements as remote in time from later-enacted policies.”26

This was especially true in the Regents case because the issue of unconstitutional discrimination came to the Court at the pleading stage. Therefore, as the plurality acknowledged, the plaintiffs’ only burden was to “raise a plausible inference that an ‘invidious discriminatory purpose was a motivating factor’ in the relevant decision.”27 It is surely plausible to infer from statements of overt animus by a presidential candidate targeting immigrants from Mexico that such animus played a role in a policy action of his administration targeting immigrants from Mexico. In failing to acknowledge as much, the Regents plurality failed to undertake the “sensitive inquiry into such circumstantial and direct evidence of intent as may be available” required by Arlington Heights.28

To be clear, the Regents plurality opinion represents (in our view) an incorrect application of Arlington Heights in this specific context. The plurality did not purport to recede from Arlington Heights or the important principles set forth in that opinion for analyzing claims that a government policy is unconstitutional because it was motivated, at least in part, by intentional discrimination. While the Regents decision should not be misinterpreted as limiting such claims, it is nonetheless deeply disappointing.

An Individual’s Overt Statements of Racial Animus Matter, No Matter His Change in Title

The plurality opinion is especially unfortunate for at least two reasons.

First, the opinion may resonate with future candidates running for the nation’s highest office, even encouraging them to freely make racially discriminatory statements in their bids. It surely does not discourage them from doing so. The plurality opinion can be interpreted as giving candidates a free pass to forecast their discriminatory platforms. And once elected, their statements of racial animus are deemed irrelevant for constitutional purposes, even if their platform comes to fruition. The far-reaching harm to people of color of allowing government policies to be motivated by such overt racism cannot be underestimated.

Discriminatory government policies are harmful for many reasons, including that they send a message that people of color “are . . . inferior and degraded” so as to justify the discrimination.29 As LDF pointed out over 30 years ago in Jean v. Nelson, and as the Supreme Court has previously recognized, the harms from state-sponsored racial discrimination “extend[] beyond the direct victims” of the discrimination.30 Such discrimination “corrupt[s] our governmental institutions, stigmatize[s] all members of the disfavored group and incite[s] further discrimination.”31 When such explicit racial animus is permitted, or left unchecked, by the courts, it consigns people of color to an inferior status and reinforces racist ideas about them. Such discrimination also undermines public confidence in the courts as neutral arbiters of the rule of law.

These harms are especially acute because they tap into the overt racism that has long plagued our nation’s immigration and naturalization laws. In 1790, the country’s first immigration law restricted the ability to become naturalized citizens to “free white person[s].”32 It was not until 1870 that Black people were permitted to naturalize as citizens, despite having been brought to the United States as slaves beginning in 1619.33 In 1882, Congress passed the notorious Chinese Exclusion Act, which it expanded to cover immigrants from most of Asia in 1917.34 The evidence before the Court supported an inference that the Trump administration’s rescission of DACA was grounded in this same kind of historical bigotry that conveys a message of racial hierarchy. By failing to acknowledge that evidence, the plurality opinion reinforces that, for people of color, constitutional rights ebb and flow with election cycles.

Second, the plurality opinion reflects a troubling discomfort about addressing evidence that racism motivated a government policy. After carefully explaining and analyzing the evidence showing that the rescission of DACA was arbitrary and capricious in violation of the APA, the Court dismissed plaintiffs’ race discrimination claim without even acknowledging the core (and shocking) facts at the center of that claim: while campaigning for the highest office in the nation, the now-President of the United States referred to immigrants from Mexico as “rapists,” “drug dealers,” and “criminals.”

The decision is reminiscent of last Term’s decision in Department of Commerce v. New York,35 in which the Court set aside the Department of Commerce’s decision to add a citizenship question to the short-form census on administrative law grounds without acknowledging evidence that the addition of the question was motivated by discrimination. In that case, the Court recognized that the stated justification for adding the question—that it was necessary to enforce the Voting Rights Act—was “contrived” and “incongruent with what the record reveals about the agency’s priorities and decisionmaking process.”36 But, there too, the Court made no mention of evidence showing that the administration’s true motives appeared to be diluting political power of Latinx voters.37

In failing to acknowledge such strong evidence of overt animus, the decision of the Regents plurality also calls to mind a troubling dissenting opinion by Justice Alito, joined by Chief Justice Roberts and Justice Kagan, earlier this term in Ramos v. Louisiana. In his Ramos dissent, Justice Alito excoriated the majority for discussing the unambiguously racist origins of laws in Louisiana and Oregon that allowed felony convictions by non-unanimous juries. Justice Alito insisted that discussing the racist origins of these laws was inappropriate because it conflicted with the Court’s role in “set[ting] an example of rational and civil discourse instead of contributing to the worst current trends.”38

With this case, the Court’s discomfort with directly confronting race and racial animus was on full display. President Trump made numerous statements concerning persons of Mexican heritage and his administration ended a policy that put 700,000 DACA recipients (mostly of Mexican heritage) in jeopardy within months of his inauguration. And yet, eight of the Court’s nine Justices were unable to contend with the real possibility that racial discrimination may have infected the administration’s rescission of DACA.

At the very core of the Constitution is the protection of all people on American soil from racial discrimination. And it is for the judiciary to root out such discrimination, no matter the title of the President when he openly espoused it.

Natasha Merle serves as senior counsel at the NAACP Legal Defense and Educational Fund, Inc. (LDF), where she works on criminal justice, education, and voting rights litigation. This includes Buck v. Davis, in which LDF successfully represented Mr. Duane Buck in the United States Supreme Court after his own trial counsel presented false “expert” testimony that he was more likely to commit future acts of crimination violence because he is Black. Natasha also currently represents Black voters in Alabama (Greater Birmingham Ministries v. Merrill) and Arkansas (Christian Ministerial Alliance et al. v. Arkansas et al.) defending their rights under the Constitution and Voting Rights Act. She was also lead counsel on LDF et al. v. Trump et al., brought pursuant to the Constitution and Federal Advisory Committee Act that challenged President Trump’s creation of the racially discriminatory “Presidential Advisory Commission on Election Integrity.”

Natasha is currently an adjunct professor at New York University School of Law where she teaches the Racial Equities Strategies clinic. Prior to joining LDF, Natasha has worked as an Assistant Federal Public Defender in the Capital Habeas Unit of the Federal Public Defender for the District of Arizona and also the Gulf Region Advocacy Center, where she represented individuals who had been sentenced to death. Natasha clerked for the Honorable John Gleeson of the U.S. District Court for the Eastern District of New York and the Honorable Robert L. Carter of the U.S. District Court for the Southern District of New York. Natasha is a 2005 graduate of the University of Texas at Austin and 2008 graduate of New York University School of Law.

Samuel Spital is the Director of Litigation at the NAACP Legal Defense & Educational Fund, Inc. Prior to joining LDF, Sam practiced for over a decade at two national law firms, where he worked with LDF as co-counsel on numerous cases involving capital punishment and voting rights. These included Buck v. Davis, in which the Supreme Court held that LDF-client Duane Buck’s constitutional rights were violated when Mr. Buck’s own trial counsel presented an “expert” who falsely testified that Mr. Buck was more likely to commit future acts of criminal violence because he is Black, and Williams v. Allen, in which the Eleventh Circuit Court of Appeals granted habeas corpus relief after the trial judge had overrode the jury’s 9-3 vote in favor of a life sentence and imposed death instead. In Northwest Austin Municipal Utility District No. 1 v. Holder and Shelby County v. Holder, Sam was an integral member of the LDF-led teams that represented Black voters who intervened to defend the constitutionality of the Voting Rights Act. Sam’s extensive experience in civil rights litigation also includes successfully representing three men who served between 25 and 40 years in solitary confinement-type conditions at the Louisiana State Penitentiary at Angola.

Sam served as a Lecturer-in-Law at Columbia Law School and an Adjunct Professor at Brooklyn Law School, where he taught courses on death penalty and prison litigation. He is a 2000 graduate of Harvard College and a 2004 graduate of Harvard Law School. After graduating law school, Sam clerked for The Honorable Harry T. Edwards of the United States Court of Appeals for the District of Columbia Circuit, and for The Honorable John Paul Stevens of the United States Supreme Court.

* Senior Counsel and Director of Litigation, NAACP Legal Defense & Educational Fund, Inc (LDF), respectively. Portions of this Response are inspired by, and draw upon, the amicus brief we filed along with our colleagues Sherrilyn Ifill, Janai Nelson, Cara McClellan, Daniel Harawa, and Raymond Audain on behalf of LDF and LatinoJustice in the Regents case. We are grateful to each of them. However, the views expressed here are our own, and any mistakes are ours.

  1. David Sherfinski,  Donald Trump: Protesters Outside Rally ‘Thugs Who Were Flying the Mexican Flag,’ Wash. Times (May 25, 2016), https://www.washingtontimes.com/news/2016/may/25/trump-protesters-rally-thugs-waving-mexican-flag/.
  2. See Z. Byron Wolf, Trump’s Attacks on Judge Curiel Are Still Jarring to Read, CNN (Feb. 27, 2017), https://www.cnn.com/2018/02/27/politics/judge-curiel-trump-border-wall/index.html (providing an excerpt of the President’s interview during which he made the remark).
  3. No. 18–587, slip op. at 29 (U.S. June 18, 2020).
  4. Id. at 29.
  5. Id. at 11–12.
  6. Id. at 13–26.
  7. Id. at 15.
  8. Id. (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766, n.6 (1969)).
  9. Id. at 16.
  10. Id. at 21.
  11. See Id. at 21–23, 26.
  12. Id. at 24 (quoting Brief for Respondent The Regents of the University of California et al. at 41, No. 18–587 (U.S. filed Sep. 27, 2019).
  13. Id. at 24.
  14. See id. at 23–24.
  15. See id. at 29.
  16. Id. at 3 (Sotomayor, J., concurring in part, concurring in the judgment in part, and dissenting in part) (quoting Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 276).
  17. Id. at 28 (plurality opinion).
  18. For example, in granting a preliminary injunction against Acting Secretary Duke’s  rescission of another policy protecting non-citizens from deportation, Temporary Protected Status (TPS) for Haitian nationals, a federal court found that “the evidence shows the White House exerted significant influence over Acting Secretary Duke when she made her TPS decision.” Saget v. Trump, 375 F. Supp. 3d 280, 360 (E.D.N.Y. 2019).
  19. Regents, slip op. at 28. Although the analysis in this portion of Chief Justice Roberts’s opinion for the Court is a plurality, as it was joined by only three other Justices, a majority of the Court agreed that plaintiffs had not stated a sufficient claim of discrimination. See Id. at 3 n.1 (Thomas, J., joined by Alito & Gorsuch, JJ., concurring in the judgment in part and dissenting in part); Id. at 8 (Kavanaugh, J., concurring in the judgment in part and dissenting in part).
  20. 429 U.S. 252 (1977).
  21. Id. at 266.
  22. Regents, slip op. at 3 (Sotomayor, J., concurring in part, concurring in the judgment in part, and dissenting in part).
  23. Id. (quoting Trump v. Hawaii, 138 S. Ct. 2392, 2440 (2018) (Sotomayor, J., dissenting)).
  24. Id. at 28 (plurality opinion) (quoting Arlington Heights, 429 U.S. at 268).
  25. 429 U.S. at 268.
  26. Regents, slip op. at 3 (Sotomayor, J., concurring in part, concurring in the judgment in part, and dissenting in part (quoting Hawaii, 138 S. Ct. at 2438 n.3 (Sotomayor, J., dissenting) (alteration omitted)).
  27. Id. at 27 (plurality opinion) (emphasis added) (quoting Arlington Heights, 429 U.S. at 266).
  28. Arlington Heights, 429 U.S. at 266.
  29. Plessy v. Ferguson, 163 U.S. 537, 560 (Harlan, J., dissenting).
  30. Brief of Amicus Curiae NAACP Legal Defense and Educational Fund, Inc. In Support of Petitioners, Jean v. Nelson, 472 U.S. 846 (1985) (No.84-5240), 1985 WL 670075 at *9.
  31. Id.
  32. Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, 103 (repealed by Act of Jan. 29, 1795, ch. 20; however, this act also limited the ability to be naturalized as a citizen to “free white person[s]”).
  33. See Act of July 14, 1870, ch. 254, § 7, 16 Stat. 254, 256.
  34. See Act of May 6, 1882 (Chinese Exclusion Act), ch. 126, 22 Stat. 58; Immigration Act of 1917 Ch. 29, § 3, 39 Stat. 874, 875–76 (repealed 1952).
  35. 139 S. Ct. 2551 (2019).
  36. Id. at 2575.
  37. See Kravitz v. Dep’t of Commerce, 366 F. Supp. 3d 681, 723–24 (D. Md. 2019). To be fair, the procedural posture and the timing of the discovery of important evidence in the census case meant it was more defensible that the Court did not address the evidence of discrimination in that case directly. On the other hand, the Court also contributed to some of those challenges. See New York v. Dep’t of Commerce, 351 F. Supp. 3d 502, 671 (S.D.N.Y. 2019).
  38. Ramos v. Louisiana, 140 S. Ct. 1390, 1427 (2020) (Alito, J., dissenting).

Recommended Citation
Natasha Merle & Samuel Spital, Response, Regents of Univ. of Calif.: Trump Administration Held Accountable by the APA but a Missed Opportunity for the Constitution, Geo. Wash. L. Rev. On the Docket (June 24, 2020), https://www.gwlr.org/regents-of-univ-of-a-missed-opportunity-for-the-constitution/.

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