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On June 18, 2020, SCOTUS ruled Trump's ending of DACA was invalid. The reason -- as I understand it -- was that Trump acted by written memorandum instead of following the formal Administrative Procedure Act process.

However, this seems like a double standard, since Obama created DACA without the APA rule making process (EDIT: namely, public notice and comments) in the first place. And when contested, this was upheld by the courts.

Is there some ability to create programs like DACA without the APA rule, but ending them requires it? For example, is there some sort of built-in statutory bias to make government programs far easier to start than end?

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    It would be good to have a better source for the claims than 'my friend' – Jontia Jun 18 '20 at 21:40
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    @Jontia - I think the question could easily be rewritten to ask the question itself, rather than repeating the friend's claim, and it'd be a perfectly reasonable one (assuming it was not written with excessive slant). So I consider this form of it to be equally valid. – Bobson Jun 18 '20 at 22:01
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    Intuitively speaking would you say that arguing a decision is "arbitrary and capricious" would be more difficult if it were a decision to (A) grant benefits or (B) rescind benefits? – Lag Jun 18 '20 at 22:42
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    @Lag, intuitively I would say those are symmetrical. However, I don't think my intuition is a good guide for legality. – Paul Draper Jun 19 '20 at 0:10
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    Note that the DACA creation was upheld because the plaintiff (Joe Arpaio) did not have standing according to the judge. AFAICT the judge did not make any ruling on the creation process itself. – Nzall Jun 19 '20 at 8:20
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The question really isn't a "double standard", per se, but a question of if a successive President can drop something from a prior administration

For - It was done improperly without justification

The problem SCOTUS had here is that the Trump administration provided no legal reasoning for rescinding the program

In the case of DACA, Attorney General Jeff Sessions announced on September 5, 2017, that the rescission was necessary because DACA had been created by the Obama administration “without proper statutory authority,” and thus constituted “an unconstitutional exercise of authority by the executive branch.”

There were, and are, respectable arguments to be made that he was right. But the fact is, Sessions didn’t bother to make them. And when Acting Homeland Security Secretary Elaine Duke followed up with an order winding down DACA, she didn’t either.

Where the Administrative Procedures Act(APA) comes into play is

In the litigation that followed, the administration’s approach was “We don’t got to show you no stinking reasons.” These questions were, in the words of the Administrative Procedure Act (APA), “committed to agency discretion by law,” and thus no business of judges.

and

The [then Attorney General] Sessions memo and the rescission memos, [Chief Justice] Roberts then wrote, did not come close to fulfilling the APA’s procedures: “DHS was ‘required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns,’” Roberts wrote. The agency did not even pretend to do that.

The argument is that the Trump administration rushed into this and crafted law that needs an argument for why it was removed. The courts didn't strike it down on substance, only procedure.

Against - This will open up lots of legal challenges of executive order rescinding

This was noted by Justice Thomas in his dissent (starts on page 39 of the SCOTUS decision)

Page 58

At bottom, of course, none of this matters, because DHS did provide a sufficient explanation for its action. DHS’ statement that DACA was ultra vires was more than suffi-cient to justify its rescission. By requiring more, the majority has distorted the APA review process beyond recognition, further burdening all future attempts to rescind unlawful programs. Plaintiffs frequently bring successful challenges to agency actions by arguing that the agency has impermissibly dressed up a legislative rule as a policy statement and must comply with the relevant procedures before functionally binding regulated parties. But going forward, when a rescinding agency inherits an invalid legislative rule that ignored virtually every rulemaking requirement of the APA, it will be obliged to overlook that reality. Instead of simply terminating the program because it did not go through the requisite process, the agency will be compelled to treat an invalid legislative rule as though it were legitimate

Page 63

President Trump’s Acting Secretary of Homeland Secu-rity inherited a program created by President Obama’s Secretary that was implemented without statutory authorityand without following the APA’s required procedures. Then-Attorney General Sessions correctly concluded thatthis ultra vires program should be rescinded. These cases could—and should—have ended with a determination that his legal conclusion was correct.

The key part here is that the majority held that the standards put forth in another decision simply called State Farm (where the government simply yanked a prior regulation) applies to the Trump administration's decision to rescind DACA as well. But Thomas' dissent notes that the original order was illegal, something the majority opinion never addresses. Even President Obama questioned its legality initially

Responding in October 2010 to demands that he implement immigration reforms unilaterally, Obama declared, "I am not king. I can't do these things just by myself." In March 2011, he said that with "respect to the notion that I can just suspend deportations through executive order, that's just not the case." In May 2011, he acknowledged that he couldn't "just bypass Congress and change the (immigration) law myself. ... That's not how a democracy works."

The risk here is that any order one President gives can then be held up in court if the court doesn't like its reasoning

I sincerely hope this case is a ticket good for one ride on the John Roberts express. This framework, if taken seriously–which I do not–would make it impossible for any agency to modify an old policy that is in effect. There will always be countless ways to address reliance interests. My prediction: the DACA case will soon be treated like the APA analysis in the Census case. Another blip in administrative law that was only needed for the moment.

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  • It seems odd that if the original DACA program was so obviously illegal as the minority opinion would have it, that it was itself not challenged through the courts. – Jontia Jun 19 '20 at 21:23
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    Well, DACA was a non-enforcement, which the Obama DOJ argued was not subject to review. Also, Texas' challenge was put on hold until the courts ruled on that. Ironically, this decision allows Texas' challenge to move forward. Volokh has a detailed summary – Machavity Jun 19 '20 at 21:35
  • @Jontia, it was challenged in courts (9th Circuit I think), and lost. DACA creation was constitutional, despite lack of review. – Paul Draper Jun 20 '20 at 15:16
  • @Machavity Both sides argued it was a non-reviewable non-enforcement, which is weird. However this ruling specifically holds that it is not non-enforcement, nor is its rescission, because there are benefits attached beyond a simple stay in deportation and which do not naturally arise as a consequence thereof. – zibadawa timmy Jun 22 '20 at 5:18
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[A substantial edit to reflect OP's comments clarifying the question]

The OP seems to assume "notice and comment" was a basis for overturning the recission of DACA but not for the creation of DACA.

From this assumption, the OP asks if there is a double standard being applied here. To paraphrase, "How could the creation of DACA proceed given the lack of 'notice and comment' but its rescission overturned because of the lack of 'notice and comment'?

If that did happen it would look like a double standard. But the rescission was not overturned because of the lack of notice and comment. So no double standard there.

The Government failed to persuade the courts that:

  • the decision to rescind was not subject to judicial review
  • the decision was outside the jurisdiction of the courts
  • (the main bit) there was an adequate explanation under the law for the decision, in particular assessing whether there were significant "reliance interests" and weighing them against competing concerns (iow consider not whipping the rug out from under the people who were using DACA, and the knock-on consequences of that).

And what's worse is that it seems the DHS had an opportunity to get it right after losing in lower court. There were a number of ways to do it right and one way to do it wrong and they chose the wrong way.

The ball is now back in the DHS's court to "consider the problem anew".

(Should say that the minority opinion says there is no such requirement for an explanation in these circumstances, DACA being unlawful, but that's the minority opinion.)

The question is somewhat ironic because (as the majority opinion and Thomas J dissent mention) in separate but related earlier litigation it looked like Texas and 26 states were winning the argument to have DAPA, DACA's expansion and possibly DACA found unlawful because the-then Government had not complied with the procedural requirements of the APA. One of their arguments was that there had been inadequate notice and comment.

In other words Obama can't snap his fingers to create DACA and Trump can't snap his fingers to end DACA. So there is no double standard.

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    @PaulDraper The majority opinion in this case didn't find against the DHS on the grounds there wasn't an adequate public review or "notice and comment" period. That wasn't the standard applied. – Lag Jun 19 '20 at 7:05
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    "The question is somewhat ironic because in separate but related earlier litigation it looked like Texas and 26 states were winning the argument" IIRC it was taken to court and the 9th Circuit ruled in favor of DACA creation. – Paul Draper Jun 19 '20 at 15:52
  • @PaulDraper Part of the background discussed by the ruling is that a few years ago Texas and other states secured a preliminary injunction against the implementations of DAPA and the DACA expansion. The A-G had concluded that DACA itself was illegal. During the Texas litigation this rescission decision was made. The heart of this dispute is about how to wind down down DACA. – Lag Jun 20 '20 at 8:35
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The Supreme Court stated that ending DACA was, in itself, legal: (page 9)

The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.

What the Supreme Court did rule is that the process for ending DACA, as set out in the Administrative Procedure Act, was not properly followed, in particular in the areas of providing enough notice and ability for the public to comment. As the law was not followed in the leadup to the rule change, the rule change itself could not stand.

As far as I can see, there is nothing in the ruling that prevents the administration from repealing DACA, if they follow the correct procedures.

Link to full ruling

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    What makes you think the APA did not apply when Obama created DACA? – Joe C Jun 18 '20 at 21:45
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    AFAIK there was no notification and public comment period when DACA was created. – Paul Draper Jun 18 '20 at 21:49
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    My understanding is not that there was an issue with the process (such as the lack of a notification and comment period) but that the provided justification was insufficiently reasoned out and/or not specific enough. I suspect that N&C isn't required for memorandums like this, for whatever reason. – Bobson Jun 18 '20 at 22:02
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    @PaulDraper DACA's creation was not the legal matter under consideration here (at least according to the majority opinion; some of the dissents differ on that). Its existence was a given, and the legal matter at hand is whether it's rescission was done lawfully. Though if one wanted a haphazard off the cuff rationale, Obama did try to enact this policy through Congress first, so it was a matter of well discussed public policy before he enacted it after it failed to get through Congress. But this would seem to afford Trump a similar line of reasoning: rescission was discussed upon creation. – zibadawa timmy Jun 19 '20 at 4:51
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    @PaulDraper "I haven't read the full 74-page ruling, but "notice and comments" appears a number of times" - it appears eight times. Twice in the majority opinion relating to a separate but related litigation for background and six times in the Thomas J dissenting opinion arguing why DACA was illegal. Notice and comment was not a basis for the adverse majority opinion. – Lag Jun 19 '20 at 10:36

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