Skip to main content

Chief Justice Roberts Repeatedly Schooled Kavanaugh on Administrative Law in DACA Opinion


The U.S. Supreme Court reinstated the Deferred Action for Childhood Arrivals (DACA) program, at least for the time being, in a contentious 5-4 ruling on Thursday that saw Chief Justice John Roberts align with the liberal justices to protect the rights and status of Dreamers.

That decision explicitly rejected a constitutional challenge to the Trump administration’s now-unsuccessful efforts to kill DACA–much to the chagrin of Justice Sonia Sotomayor. Instead, the anti-immigrant policy was rejected for the much narrower reason that the process used by the Department of Homeland Security (DHS) was in violation of the Administrative Procedure Act (APA) of 1946.

RELATED: Sotomayor Scolds Fellow Liberals in DACA Dissent: Trump Targeted ‘Racial Group’ He ‘Branded as Less Desirable’

In working through the contours of the often absurd-seeming complexity of the APA and its interpretative precedents, however, Roberts elicited a much more vociferous response from his fellow traveler and conservative bench peer Brett Kavanaugh.

In basic terms, the government lost because their original justification for jettisoning DACA lacked the required legal justification under the APA and was found to be “arbitrary and capricious.”

When presented with this deficiency in court, the government went back and attempted to offer up a better justification. A lower court said that justification was still lacking but the Supreme Court determined that later justification didn’t really matter at all.

These facts set up the precedential brawl between the two typically closely-aligned conservative justices. While Roberts has recently emerged as something of a swing vote, Kavanaugh has long fashioned himself as the second-most moderate member of the high court’s conservative wing. Their dispute, at least so far as Roberts acknowledged the various complaints lodged in Kavanaugh’s dissent, produced a back-and-forth with significant implications for how the Supreme Court is likely to view APA cases in the near future.

“The Roberts v. Kavanaugh debate is about timing and what it means to give a reasoned analysis,” Just Security Junior Fellow and administrative law expert Danielle Schulkin told Law&Crime in an email. “Agency change is not a fatal flaw in and of itself, so long as the change is reasonably explained. Overall, however, the debate here is about what it means to give a ‘reasoned’ analysis and what it means to give a ‘post-hoc’ justification.”

RELATED: Supreme Court Rules Trump Administration Violated the Law When Trying to End DACA

The original justification was a memorandum authored by former acting DHS secretary Elaine C. Duke which parroted an appellate court’s rescission of the similar Deferred Action for Parents of Americans (DAPA) program. To the extent that Duke’s justification wasn’t simply offering a legal conclusion without argument, which various courts decided that it was, her mimeographed argument was, structurally, legally flawed to begin with.

To address those flaws, then-DHS secretary Kirstjen Nielsen offered the D.C. district court a three-pronged explanation of Duke’s earlier memo based on the secretary’s “understanding” of what the initial memo entailed. The D.C. court, however, had offered Nielsen the ability to try and rescind DACA on her own after they determined Duke’s attempt was unsuccessful.

The court explains, at length [emphasis in original]:

The District Court’s remand thus presented DHS with a choice: rest on the Duke Memorandum while elaborating on its prior reasoning, or issue a new rescission bolstered by new reasons absent from the Duke Memorandum. Secretary Nielsen took the first path. Rather than making a new decision, she “decline[d] to disturb the Duke memorandum’s rescission” and instead “provide[d] further explanation” for that action. Indeed, the Government’s subsequent request for reconsideration described the Nielsen Memorandum as “additional explanation for [Duke’s] decision” and asked the District Court to “leave in place [Duke’s] September 5, 2017 decision to rescind the DACA policy.” …

Because Secretary Nielsen chose to elaborate on the reasons for the initial rescission rather than take new administrative action, she was limited to the agency’s original reasons, and her explanation “must be viewed critically” to ensure that the rescission is not upheld on the basis of impermissible “post hoc rationalization.”

Kavanaugh’s major complaint is that Roberts effectively ignored Nielsen’s attempt to explain the DACA rescission.

“[R]egardless of whether the Court is correct about the Duke Memorandum, the Nielsen Memorandum more fully explained the Department’s legal reasons for rescinding DACA, and clarified that even if DACA were lawful, the Department would still rescind DACA for a variety of policy reasons,” the dissent notes. “The Nielsen Memorandum also expressly addressed the reliance interests of DACA recipients.”

To hear Kavanaugh tell it, the Nielsen memorandum checked all the procedural boxes necessary to defeat a court review under the APA. But, according to Roberts, Kavanaugh simply got it all wrong by trying to give such weight to Nielsen’s “understanding” at all.

“Contrary to the position of the Government before this Court, and of Justice Kavanaugh in dissent, the Nielsen Memorandum was by its own terms not a new rule implementing a new policy,” the majority opinion said.

RELATED: Lawyers Say Supreme Court’s DACA Decision Shows, Once Again, That Trump Admin Is ‘Really Bad’ at Administrative Law

Kavanaugh insisted Nielsen’s memo was exactly what the court said it was not. He argued: “Her memorandum was akin to common forms of agency action that follow earlier agency action on the same subject—for example, a supplemental or new agency statement of policy, or an agency order with respect to a motion for rehearing or reconsideration.”

The dissent complained that Thursday’s decision will result in courts dismissing belated justifications during litigation but then potentially accepting similar justifications on remand after the issuance of new agency action. Kavanaugh suggested that this “would make little sense.”

Roberts, in a lengthy sections, rubbished that suggestion:

The Government, echoed by Justice Kavanaugh, protests that requiring a new decision before considering Nielsen’s new justifications would be “an idle and useless formality.” Procedural requirements can often seem such. But here the rule serves important values of administrative law. Requiring a new decision before considering new reasons promotes “agency accountability,” by ensuring that parties and the public can respond fully and in a timely manner to an agency’s exercise of authority. Considering only contemporaneous explanations for agency action also instills confidence that the reasons given are not simply “convenient litigating position[s].” Permitting agencies to invoke belated justifications, on the other hand, can upset “the orderly functioning of the process of review,” forcing both litigants and courts to chase a moving target. Each of these values would be markedly undermined were we to allow DHS to rely on reasons offered nine months after Duke announced the rescission and after three different courts had identified flaws in the original explanation.

“The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted,” Roberts tidily noted. “This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.”

But the dissent even cried foul about this clear-cut rule.

“Under our precedents, however, the post hoc justification doctrine merely requires that courts assess agency action based on the official explanations of the agency decisionmakers, and not based on after-the-fact explanations advanced by agency lawyers during litigation (or by judges),” Kavanaugh argued–supplying his own emphasis.

“Whereas Roberts suggests a nearly complete bar on post-hoc justifications after a decision is made, Kavanaugh believes that this doctrine is limited to an agency’s post-hoc justifications during litigation of a rule, as in Overton,” Schulkin noted–citing the relevant high court precedent. “So, for example, an agency cannot argue during litigation that they enacted a rule for a different reason than is otherwise stated in their previous analysis.”

Again, the court said that’s just plain wrong. Per Roberts:

Justice Kavanaugh asserts that this ‘foundational principle of administrative law,’ actually limits only what lawyers may argue, not what agencies may do. While it is true that the Court has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc rationalizations, not advocate rationalizations, because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency or by agency officials themselves.

“One thing to watch is whether Roberts envisions this as a per se rule or if defects can be cured if they are close to the time the decision was made,” Schulkin added. “It’s a classic line-drawing issue: would a post-hoc justification one week after a decision be acceptable? It’s also possible that the decision will further discourage agencies from changing their mind when faced with new evidence.”

Schulkin also addressed the decision’s longterm upshot:

In an odd sense, I think Kavanaugh is short-sighted. In many opinions, Kavanaugh seems to suggest giving the judiciary more control over the administrative state. On the one hand, perhaps the Trump administration is simply bad at following administrative procedure (true). On the other hand, Roberts’ decision falls in line with the largely conservative movement to restrict agencies’ delegation of power…What will be interesting is to see the reverberations of this case play out in district courts across the nation. By strengthening [the longstanding APA interpretation doctrine in] State Farm, Roberts essentially gives district courts a stronger tool to dissect agency decisions in the future.

[image via Leah Millis-Pool/Getty Images]

Editor’s note: this article has been amended post-publication to include additional quotes.

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime: