DHS v. Regents and the Paperwork Argument That Saved DACA in 2020

On the morning of June 18, 2020, hundreds of thousands of young people who had been brought to the United States as children refreshed the same web page. The country was three months into a pandemic, and many of them were working jobs that had just been declared essential: hospital orderlies, grocery clerks, warehouse pickers, teachers logging on from their kitchens. The opinion that loaded was written by Chief Justice John Roberts, a conservative who had never shown much sympathy for sweeping claims of immigrant rights. It saved their status anyway. And it did so on a ground that sounded, to anyone outside a law school, almost comically small: the government had not shown its work.

In short: In Department of Homeland Security v. Regents of the University of California, a 5-4 Supreme Court blocked the Trump administration's 2017 repeal of DACA because the agency skipped steps the law requires, not because DACA was guaranteed. That procedural win bought years of protection, but it left the program's legality to other courts and left Dreamers' futures to a Congress that has never finished the job.

A memo, not a law

To understand why paperwork decided the case, start with what DACA actually is. Deferred Action for Childhood Arrivals was never passed by Congress. It was announced on June 15, 2012, in a memo from Homeland Security Secretary Janet Napolitano, after the DREAM Act, the bill that would have given young immigrants a path to permanent status, had stalled in the Senate in 2010.

The memo told immigration agencies to use their discretion. People who had come to the country before age 16, had lived here continuously since 2007, were in school or had graduated or served in the military, and had no serious criminal record could apply for "deferred action": a two-year promise, renewable, that the government would not prioritize deporting them. Under existing regulations, people with deferred action could apply for work permits. That second piece, the work permit, turned a quiet enforcement policy into a life. Recipients got Social Security numbers, driver's licenses in most states, jobs with benefits, mortgages.

Enrollment grew into the hundreds of thousands. When the case reached the Supreme Court, roughly 700,000 people held DACA. They were a generation that had grown up pledging allegiance in American classrooms and learned their status only when they tried to get a learner's permit or apply to college.

Because DACA lived in a memo, it could, in principle, die in a memo. That is exactly what the next administration tried.

September 5, 2017, and the reason the government gave

On September 5, 2017, Attorney General Jeff Sessions stood at a Justice Department podium and announced that DACA would end. The formal paper was a memo from Acting Homeland Security Secretary Elaine Duke. Its reasoning was brief. The Attorney General had concluded DACA was unlawful, citing the fate of a related program for parents of citizens, known as DAPA, which lower courts had blocked and which a short-handed Supreme Court had left blocked in 2016 by splitting 4-4. Duke's memo accepted that conclusion and wound the program down.

Lawsuits came fast, from the University of California system (whose president at the time was Napolitano herself, the memo's original author), from states, from recipients and from the NAACP. Judges in San Francisco, Brooklyn and Washington ordered the government to keep processing renewals. One of those judges, John Bates in the District of Columbia, did something that matters to the rest of this story: he gave the department a chance to explain itself better.

The department took it. In June 2018, Secretary Kirstjen Nielsen, Duke's successor, issued a new memo. It offered fresh reasons for ending DACA beyond legality: that the program sent a message encouraging illegal immigration, that the executive branch should not act where Congress had declined to, that she had doubts about the program's legality even if it were not clearly unlawful. These were real policy arguments. They were also written nine months after the decision they were meant to justify.

What "arbitrary and capricious" really means

The legal weapon the challengers used was the Administrative Procedure Act of 1946, the unglamorous law that governs how federal agencies make decisions. It tells courts to set aside agency action that is "arbitrary and capricious." That phrase sounds like a judgment about whether a policy is foolish. It is not. It is a test of reasoning: did the agency look at the relevant factors, consider obvious alternatives, and explain how it got from the facts to the choice?

The modern version of the test comes from a 1983 case about car seat belts and airbags. The Reagan-era transportation department had rescinded a rule requiring passive restraints, and the Supreme Court, in Motor Vehicle Manufacturers Association v. State Farm, said the agency had failed to consider an obvious middle option. Repealing a rule, the Court said, takes the same reasoned explanation as making one. There is a pleasing irony in the fact that the doctrine that later protected undocumented young people was built in a fight between insurers and carmakers.

A second, older principle mattered just as much. Since the Chenery cases of the 1940s, courts have judged an agency's decision on the reasons the agency actually gave at the time, not on better reasons its lawyers think up later. The point is accountability. If a government can act first and invent justifications afterward, the public never gets to see or contest the real basis for what was done.

Put those two principles together and the case was close to decided before the argument began.

Inside the Chief Justice's opinion

Roberts's majority, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, did not say DACA was lawful. It said explicitly that the Court was not deciding whether DACA or its rescission was sound policy. What it decided was narrower.

First, the Nielsen memo did not count. It came too late. The Court treated it as a post hoc rationalization and said the department, if it wanted to rely on new reasons, needed to take new action rather than retrofit old action.

Second, Duke's memo failed on its own terms. The Attorney General's legal objection was aimed at the benefits that came with deferred action, such as work authorization. But DACA had two parts: the forbearance, meaning the decision not to pursue deportation, and the benefits that followed. Duke ended both without asking whether she could keep the forbearance while dropping the benefits. That was an obvious alternative, and ignoring it was the kind of failure State Farm condemned.

Third, the department never weighed reliance. People had enrolled in degree programs, enlisted, started businesses, bought houses and had children on the strength of the government's promise. The agency did not have to protect those interests, Roberts wrote in substance, but it had to consider them. It did not.

The Court rejected a separate claim that the repeal was driven by racial animus in violation of equal protection; on that point Sotomayor parted company with the majority. Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, dissented, arguing DACA was unlawful from the start and that an agency should not need an elaborate explanation to end an unlawful program. Alito and Brett Kavanaugh also wrote separately in dissent.

The result: the rescission was vacated. DACA went back to where it had been.

The strongest case against the ruling, and an answer

The dissenters' complaint deserves a fair hearing. If a program was created by memo with no notice and comment, why should ending it require a more careful process than starting it? On that view, the Court let a policy that Congress never passed become harder to undo than a statute, and handed one administration's choice a kind of protection the Constitution does not give.

There is real force there, and anyone who cares about presidential power cutting both ways should sit with it. A progressive who cheered the procedural brakes in 2020 cannot complain when the same brakes slow a Democratic administration's rule.

But the answer is in the opinion itself. Roberts did not say the program could never end. He said the department had to do the work: consider the alternatives and the people affected, and say why. That is not an extra burden placed on immigrants' opponents. It is the same burden the Administrative Procedure Act places on every agency, whether it is regulating smokestacks, school lunches or airbags. The government was free to try again with reasons. Notably, it did not finish doing so before the 2020 election.

The same Chief Justice had applied similar logic a year earlier in the census case, Department of Commerce v. New York, when he found that the administration's stated reason for adding a citizenship question did not match the record. Two cases in a row, an administration lost not because the Court rejected its goal but because it would not tell the truth, or the whole truth, about how it reached it.

What the win did not settle

Here is where honesty requires some cold water. Regents protected DACA from one repeal. It did not declare DACA legal, and it did not stop anyone from attacking it from another direction.

That attack was already under way in Texas. In a suit led by that state, federal Judge Andrew Hanen ruled in July 2021 that DACA itself violated the Administrative Procedure Act because it had been created without notice and comment. He let current recipients keep their renewals but barred the government from approving new applications. The Biden administration responded by putting DACA through a formal rulemaking, issuing a final regulation in 2022 in the hope that a properly made rule would survive. The litigation continued, and the Fifth Circuit later held key parts of the program unlawful while narrowing the remedy, leaving the program's long-term status in doubt.

So the procedural doctrine cut both ways. The Administrative Procedure Act rescued DACA in 2020 and was the main legal weapon against it afterward. A program built on executive discretion was always going to be exposed to courts and to the next election.

That leaves a population frozen in time. Because new applications have largely been stalled since 2021, the people with DACA are aging: many are now in their thirties and forties, with American-born children. Teenagers who would have qualified under the 2012 terms have grown up without it. To follow where these cases stand, the Supreme Court's opinions and emergency orders are tracked on our court watch page, and the wider immigration story on the immigration and ICE topic page.

Why a procedural victory still matters

Some on the left were disappointed by Regents. It felt like a technicality: no ringing statement that Dreamers belong here, no constitutional shield. I think that disappointment misreads what happened, and here is the argument.

Procedure is where power gets slowed down long enough for people to fight back. The two years between the 2017 announcement and the 2020 decision, and the years after it, were not empty. They were years in which recipients renewed, organized, testified, and told their stories to members of Congress who had never knowingly met an undocumented person. Requiring an agency to consider reliance interests is, in plain language, requiring the government to look at the people its decision will hurt. That is not a technicality. It is the closest thing administrative law has to a conscience.

There is also a lesson about where lasting protection comes from. Every executive fix in immigration, from DACA to the parole programs of later years, has proven fragile, because what one administration grants by memo the next can try to withdraw. Durable status requires a statute. Versions of the DREAM Act have drawn bipartisan sponsors across two decades, and polls have long shown broad public support for letting people brought here as children stay. What has been missing is a Congress willing to pass it, often because the issue gets bundled with fights over border enforcement that neither side will concede.

Democrats will take control of both chambers when the new Congress is sworn in on January 3, 2027. Whether that produces a bill, and whether a president who ended DACA once would sign anything, are open questions, and nobody should pretend to know the answers yet.

The people the case was about

Strip away the doctrine and Regents was about a teacher in Houston, a nurse in Phoenix, a small-business owner in Denver, a software engineer in Chicago. Many of the plaintiffs were not plaintiffs at all in the usual sense; they were ordinary people who had followed every rule the government gave them, paid their application fees every two years, submitted their fingerprints, and asked only that the rules not change underneath them without a reason.

Their neighbours often did not know their status. Plenty of those neighbours voted for the president who tried to end the program. When surveys ask Americans, including many Republican voters, whether young people raised here should be deported to countries they barely remember, the answer has consistently been no. That gap between party positions and neighbourly instincts is where progress on this issue has always lived.

What you can do

• Find the people who would write the bill. Our representatives tool takes your address and returns your House member, both senators and your state legislators, with phone numbers, contact forms and their latest votes. A short call asking where they stand on permanent status for DACA recipients, and whether they will co-sponsor, carries more weight than you think.
• Track the cases rather than the rumours. The court watch page lists this term's Supreme Court opinions with the Court's own summaries and the emergency docket, so you can see what was actually decided before the social media version reaches you.
• Support the groups doing renewals. DACA renewals require fees, forms and deadlines, and a missed one can end a person's protection. Our directory of nonprofits lists immigrant-rights and legal-aid organizations by state; many run renewal clinics or need volunteers and donations to cover fees.
• Know someone's story before the next debate. If you employ, teach or worship with DACA recipients, ask whether they want to share their experience with local officials. A first-person account changes more minds in a town meeting than any statistic.

Procedure saved DACA once. It will take politics, done patiently and by a lot of people, to finish what the 2012 memo started.