Neil Gorsuch testifies at his confirmation hearing in March 2017. (Photo: Diego M. Radzinschi/ ALM)

Chief Justice John Roberts Jr. once again on Tuesday appeared to be the justice in the middle of a Supreme Court divided over a controversial Trump administration policy. But questions from Trump appointee Neil Gorsuch suggested he was searching to find a hole in the administration's defense of its decision to end a program that has allowed nearly 700,000 "Dreamers" temporarily to work, receive driver's licenses and renewable two-year protection from deportation.

During more than an hour of arguments Tuesday, Gorsuch was first to ask a key question of U.S. solicitor general Noel Francisco that quickly became central to the positions of both sides: Did the Department of Homeland Security, in deciding to rescind the Obama-era program in 2017, adequately consider the "reliance interests" formed by the Dreamers and others in a program that has existed since 2012?

"The agency mitigated the reliance interests through the orderly wind-down, and it simply concluded that beyond that it didn't justify maintaining in perpetuity a program that actively facilitated violations of the law by hundreds of thousands of individuals," Francisco responded to Gorsuch.

In the consolidated cases, Department of Homeland Security v. Regents, University of California, the Trump administration contends that its decision to rescind the Deferred Action for Childhood Arrivals program—widely known as DACA—was a discretionary act that is not reviewable by the courts. The administration also argues that federal appellate courts in California, New York and Washington were wrong to conclude that the department's decision was "arbitrary and capricious" in violation of the federal Administrative Procedure Act.

The APA, as the law is known, requires federal agencies to give reasoned explanations for their decisions—thus Gorsuch's question about the adequacy of the agency's consideration of the reliance interests of hundreds of thousands of beneficiaries of the program.

The DACA case is the third recent case in which the Supreme Court has been asked to examine the Trump administration's reasons for creating or changing Obama-era policies. A 5-4 majority, led by Roberts, upheld the administration's so-called travel ban in 2018, and a different 5-4 majority, again led by Roberts, last term struck down plans to put a citizenship question on the 2020 census.

Although Gorsuch later was skeptical of arguments made by the DACA defenders, represented by Gibson, Dunn & Crutcher partner Theodore Olson and California Solicitor General Michael Mongan, who was making his high-court debut, he has not been a predictable vote for conservative interests.

In 2018, Gorsuch joined the court's liberal wing in deciding that a law subjecting noncitizens to deportation for crimes of violence was unconstitutionally vague. And last term, he joined Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Clarence Thomas in a ruling that said Virginia House Republicans had no legal standing to challenge a racial gerrymander ruling involving legislative districts.

In response to Gorsuch's DACA reliance question, Francisco argued that those interests were "extremely limited" because no one could assume the program would remain "in perpetuity." He also insisted that two Homeland Security memos—the "Duke memo" and the "Nielsen memo"—explicitly considered reliance interests.

The Duke memo, named after acting Homeland Security secretary Elaine Duke, followed the announcement by then U.S. Attorney General Jeff Sessions that DACA was illegal and unconstitutional and would be rescinded. The Nielsen memo, named for Homeland Security secretary Kirstjen Nielsen, was written after U.S. District Judge John Bates in the Washington case directed the agency to provide a better explanation for its rescission decision. After receiving it, Bates dismissed it as rehash of the Duke memo.

Justice Stephen Breyer on Tuesday wasn't satisfied with Francisco's answer to Gorsuch's question about reliance interests.

Breyer rattled off the many amicus briefs in the DACA case filed by businesses, labor unions, medical and health care institutions, educational institutions and others. Those briefs argued how widely the business community, educators and others have relied on DACA for employees, students and others. Breyer too questioned whether the reasons for the rescission in the agency memos were adequate.

Kagan called the Nielsen memo "conclusory" on reliance interests. And Sotomayor added, "I think my colleagues have rightly pointed there's a whole lot of reliance interests that weren't looked at, including the current president telling DACA-eligible people that they were safe under him and that he would find a way to keep them here. And so he hasn't and, instead, he's done this. And that, I think, has something to be considered before you rescind a policy."

Gorsuch and Justice Brett Kavanaugh pressed Olson on what more the agency could say about reliance and its reasons for its decision if the cases were sent back to the lower courts.

Ted Olson speaks at US Supreme Court after DACA arguments on Nov. 12, 2019. (Photo: Diego M. Radzinschi / ALM)

Olson said the agency could provide an analysis of the costs and benefits of rescission and why it has decided to ignore an opinion by the Justice Department's Office of Legal Counsel that the DACA program is legal.

"We don't know what the administration would do if it had to take ownership of this," Olson told the justices. "The administration would then have to explain we want to take responsibility for throwing these people out of work, removing people that came here when they were maybe 2 years old, who have not committed a crime, and who have volunteered for this program, and have conducted themselves properly and so forth."

Francisco, in his closing remarks, disputed that the Trump administration was shirking its obligations to more formally embrace the recission of the DACA program.

"We own this," Francisco asserted. "We both own the policy rationale set forth in Secretary Nielsen's memorandum. Also, because we think this is not subject to judicial review at all, we own the legal judgment set forth in Secretary Nielsen's memoranda."

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