The 2020 Regents ruling is a roadmap for terminating unlawful programs

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The 2020 Regents ruling is a roadmap
for terminating unlawful programs
Washington, D.C. (August 28, 2023) – A new report from the Center for Immigration Studies illustrates the pitfalls an administration faces in terminating a prior administration’s programs, even unlawful ones, as a consequence of the Supreme Court’s 2020 decision in DHS v. Regents of the University of California. But the report shows that administrations that learn the lessons of Regents can successfully terminate ill-advised and/or unlawful programs.

Regents invalidated the Trump administration’s termination of the Obama administration’s 2012 Deferred Action for Childhood Arrivals (DACA) administrative quasi-amnesty program for illegal aliens who had arrived in the U.S. as minors. The Court surprisingly did not decide whether DACA itself was lawful or not. Rather, it ruled that its termination was procedurally deficient because DHS had not considered 1) the “reliance interests” of DACA beneficiaries and 2) the option of cutting off access to the benefits flowing to DACA beneficiaries (including work authorization and eligibility for welfare benefits) while allowing the grantees to retain their immunity from removal proceedings (“forbearance”).

The report concludes that the Supreme Court was only able to overrule DACA’s termination in the manner in which it did because the states that brought the original legal challenge to DAPA (DACA’s sister program) – as well as the federal district court that enjoined DAPA, the 5^th Circuit panel that affirmed the injunction, and the Trump administration itself – all failed to argue that DAPA/DACA’s “forbearance” from removal was unlawful in and of itself. The report also concludes that such forbearance alone is, in fact, unlawful.

George Fishman, the Center’s senior legal fellow and author of the report, said, “The legacy of the Court's 2020 decision is not a clear-cut loss for the rule of law. Regents will make it more difficult for future administrations to terminate prior administrations' programs and policies, but terminations that mind the lessons of Regents can still be successful. In fact, one commentator has concluded that Regents ‘reads like a playbook on how DHS could go about rescinding DACA ‘the right way’ in the future.’ Finally, states have and can continue to use Regents as a sword to challenge terminations carried out by the Biden administration.”
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