Stephen Miller and Julie Dostal of Cozen O'Connor.

Courts often decide administrative law questions by answering the "two Rs:" reviewability and reasonableness. Reviewability is the threshold, procedural issue; reasonableness assesses whether the substance of the decision was arbitrary and capricious. The U.S. Supreme Court is currently examining a high-profile immigration case under this rubric. The court heard oral argument in November 2019 in Department of Homeland Security v. Regents of the University of California, a case that asks whether the Trump administration lawfully terminated the Deferred Action for Childhood Arrivals policy, also known as DACA.

President Barack Obama initiated DACA in 2012. The program offered temporary protections to young immigrants who were brought to the United States illegally as children or came with families who overstayed visas. DACA gave young undocumented immigrants a two-year renewable protection from deportation and a work permit. DACA recipients, commonly referred to as "Dreamers," needed to satisfy several requirements to earn these temporary protections. There are nearly 700,000 Dreamers currently residing in the United States.

The Trump administration terminated the policy. In September 2017, the acting secretary of the Department of Homeland Security (DHS) issued a memorandum terminating the DACA program as unconstitutional and illegal. The memorandum ordered DHS to stop approving new DACA applications and stop processing renewal applications.

Several groups—Dreamers, civil rights groups and other supporters—filed lawsuits across the country challenging DHS's decision to rescind DACA on administrative law grounds. A district court in California issued a preliminary injunction requiring the government to maintain the DACA policy. The U.S. Court of Appeals for the Ninth Circuit affirmed the preliminary injunction, holding DHS's decision to terminate DACA was "arbitrary and capricious" under the Administrative Procedure Act (APA).

At the Supreme Court, the parties' arguments focused on the two Rs—reviewability and reasonableness. An agency decision is reviewable when that review is not otherwise precluded by statute or committed to agency discretion by law. A decision is reasonable when it is supported by a thoughtful explanation for the change. Such a reasoned explanation will often include a cost-benefit analysis of the proposed policy change.

According to petitioners—several members of the Trump administration in their official capacities, including the president—the decision to rescind DACA is not reviewable because it is committed to agency discretion by law. Petitioners argued DHS's rescission of DACA is simply enforcing the law. Petitioners asserted their decision is the type of quintessential enforcement action for which the court has traditionally denied review. By contrast, respondents argued DHS's decision to rescind DACA was a broad policy reversal, similar to the announcement of a new agency rule. Respondents contended that such a consequential decision is precisely the type of agency action reviewable by the court.

If the court finds DHS's decision to rescind DACA is reviewable, it will assess the reasonableness of that decision. Petitioners contended that DHS supplied ample reasoning for its decision to rescind the DACA policy, which included the legally dubious nature of DACA, threat of impending litigation and DHS's general opposition to broad-based nonenforcement policies.

Respondents argued that DHS's explanation of its decision failed to consider the costs of that decision or the reliance interests at stake. Specifically, respondents asserted that DHS's decision was arbitrary and capricious and, therefore, in violation of the APA.

At oral argument, the justices initially explored the threshold issue of reviewability. Justice Neil Gorsuch pressed respondent's counsel to distinguish DHS's decision to rescind DACA from other agency enforcement decisions precluded from review. Respondent's counsel responded by paraphrasing language from Heckler v. Chaney (1985), a prior Supreme Court opinion focused on reviewability of agency action: "When an agency does act to enforce, the action itself provides a focus for judicial review because it imposes the coercive power of the government with respect to individual liberty and property." Gorsuch seemed unpersuaded and quickly replied, "but doesn't every prosecutorial decision affect individual liberty or property?"

On the topic of reasonableness, several justices seemed primarily concerned with the reliance interests at stake. Justice Sonya Sotomayor remarked, "Where is this really considered and weighed? And where is the political decision made clearly. That is not about the law; that is our decision to ruin lives?" Justice Elena Kagan drilled further on this point, asking petitioners' counsel why DHS failed to consider in detail the significant reliance interests. Justice Brett Kavanaugh, on the other hand, referred to DHS's memorandum as a "very considered decision."

Over 700,000 Dreamers eagerly await the Supreme Court's decision, which will likely be issued before July 2020.

Stephen A. Miller practices in the commercial litigation group in Cozen O'Connor's Philadelphia office. Prior to joining the firm, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Julie Dostal is an intellectual property associate at the firm. She received her J.D. from the University of Virginia School of Law, and her B.A., summa cum laude, from The University of Pittsburgh.