Judge Alsup’s 'Flawed Legal Premise'

By Josh Blackman
Thursday, January 11, 2018, 10:58 AM

Judge William Alsup the Trump administration’s plan to wind down the Deferred Action for Childhood Arrivals (DACA) policy, because he found that the challengers were “likely to succeed on the merits of their claim that the rescission was based on a flawed legal premise.” But the only “flawed legal premise” in the case was Alsup’s misapplication of Massachusetts v. Environmental Protection Agency (2007). The Supreme Court’s 2007 decision established several important principles of administrative law: For example, states have a “special solicitude” when suing the federal government and the Clean Air Act authorizes the EPA to regulate greenhouse gases. The case did not hold, as Alsup concluded, that an agency decision is “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law” if it is merely “based on a flawed legal premise.” Indeed, the operative phrase of Alsup’s opinion, “flawed legal premise,” appears nowhere in Massachusetts v. EPA. I could not find it in any Supreme Court decision for that matter.

As best as I can tell, Alsup made it up. And he put all of his eggs in this “flawed legal premise” basket. His syllogism appears to work like this:

  1. Attorney General Jeff Sessions recommended the decision to rescind DACA based on his that it was implemented “without proper statutory authority” and was “an unconstitutional exercise of authority by the Executive Branch”;
  2. Alsup determined that Sessions was wrong, and in fact, that DACA was “within the statutory and constitutional powers of the Executive Branch”;
  3. Therefore, because Acting DHS Secretary Elaine Duke’s decision to rescind DACA was premised on a “flawed legal premise,” it must be set aside.

But that’s not the correct standard. 5 U.S.C. § 706(2)(A) asks whether an action is “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.” Despite writing a 49-page opinion—replete with citations to several of the president’s tweets about DACA—Alsup offers zero analysis of whether the DACA reversal was “arbitrary” or “capricious” or an “abuse of discretion” or “not otherwise in accordance with law.” In several places, he merely parrots this quartet without elaboration, citing Massachusetts v. EPA. The relevant analysis from that case, however, does not support Alsup’s conclusion that DACA runs afoul of 5 U.S.C. § 706(2)(A).

As recounted by Justice John Paul Stevens, the EPA concluded that regulating greenhouse gases such as carbon dioxide exceeded the EPA’s statutory mandate to regulate “emission of any air pollutant” from motor vehicles.  Specifically, the Bush administration contended that because “Congress did not intend it to regulate substances that contribute to climate change ... carbon dioxide” should not be considered “an ‘air pollutant’ within the meaning of the provision.” Therefore, the agency argued, it lacked the authority to regulate carbon dioxide as an “air pollutant.” Justice Stevens noted that because “the Clean Air Act expressly permits review of such an action,” the Court “‘may reverse any such action found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” The Court concluded that the “unambiguous” “statutory text”—which it described as providing a “sweeping definition of ‘air pollutant’”—“forecloses EPA's reading.”

If indeed “unambiguous” text forecloses the administration’s interpretation of the law, it is quite literally “not in accordance with law.”  Since the EPA was wrong that the statute precluded regulation of greenhouse gases, regulation of such gases fell within the statutory mandate to regulate emissions. The EPA’s failure to even consider regulating greenhouse gases thus rested on an ambiguously wrong reading of the underlying statute. Hence, the EPA’s position was “arbitrary” and “capricious.”

The case for DACA’s legality is in no sense “unambiguous.” I long ago that the policy is unlawful, but for purposes of this post, I’ll assume it is a close question. The Obama administration, by its best lights, determined that DACA was legal. In striking down DAPA—the Obama Administration’s other signature immigration initiative—the Fifth Circuit strongly suggested that DACA—the basis of DAPA—was unlawful. As even Alsup was forced to concede, “at least some ... [of the Fifth Circuit’s] reasons for holding DAPA illegal would apply to DACA.”  The short-handed Supreme Court divided 4-4 on that appeal, thus affirming the Fifth Circuit. I suspect that either Justice Antonin Scalia or Justice Neil Gorsuch would agree with the Fifth Circuit. The parallels that Alsup acknowledged between DACA and the legally flawed DAPA program demonstrate that the Trump administration’s decision to rescind of the former on legal grounds is not “arbitrary and capricious.” Rather, the Trump administration’s action merely reflects a different judgment about DACA’s legality. 

Taken as a whole, the legality of DACA is, charitably, ambiguous. It is well within the executive’s power to wind down a policy whose legality is in such doubt—and the continued defense of that policy poses litigation risks. Under the rule in Massachusetts v. EPA, this action is not “arbitrary” or “capricious” or an “abuse of discretion” or “not otherwise in accordance with law.” There is a critical distinction between the regulation of carbon dioxide in Massachusetts, and the granting of lawful presence under DACA. According to Stevens’s majority opinion, the Clean Air Act unambiguously did not permit the EPA not to regulate greenhouse gases. In contrast, it is at best ambiguous under prevailing legal standards whether the Immigration and Nationality Act (INA) supports the granting of lawful presence under DACA in the first place.

And in no sense does the INA prohibit DHS from not granting deferred action status. It is an entirely discretionary act that can be rescinded at any time. The Obama administration chose to provide those benefits to DACA recipients and acknowledged that it could be revoked at any time. Indeed, the fact that the benefits could be revoked was essential to the Office of Legal Counsel’s conclusion that it was lawful. The Trump administration has now chosen to rescind those benefits. The legal question before Alsup was whether DACA was permissible under the INA, not whether it was required. In that sense, Massachusetts v. EPA provides no guidance on DACA’s legality. To enjoin the rescission, it is not enough for a single district judge to conclude that Attorney General Sessions was mistaken. Congress did not enact the “arbitrary and capricious” standard to second-guess reasonable legal judgments.

Further, contrary to Alsup’s characterization of the government’s decision, Sessions expressly recognized that the administration had discretion to wind down DACA. It is not the case that the administration erroneously thought that the Obama approach was clearly prohibited by law, and provided no other justifications. Without a doubt, there can be reasonable disagreements concerning DACA’s legality—indeed, the Fifth Circuit has gone one way on the question, and the Ninth Circuit has gone the other way. That is enough for the reversal of DACA to survive review under 5 U.S.C. § 706(2)(A). Alsup’s failed to explain, at all, why Massachusetts v. EPA supports the “flawed legal premise” standard. It doesn’t.

In addition, the deference the President is due when construing his own statutory and constitutional authorities mandates even greater judicial restraint. This latter point is critical: Judge Alsup the constitutional justification, focusing exclusively on the statutory question. Attorney General Sessions expressly cited the President’s duty to take care that the laws are faithfully executed, in addition to his construction of the INA. I am unable to think of any decision where a court has ordered a president to exercise discretionary authority he has deemed

Finally, the government argues that the rescission is not even subject to review in the first place, agrees, explaining that “it’s difficult to accept that once the government decides not to prosecute or deport someone, it must then justify the decision to change its mind.” He added, “[t]he asymmetry isn’t especially consistent with general principles of administrative law.” Feldman is right, and this argument provides an easy basis for the Supreme Court to summarily vacate and remand Judge Alsup’s ruling. For many reasons, this decision will not stand.