Supreme Court adopts Harvard Law professor’s reasoning in milestone DACA decision

Benjamin Eidelson co-authored key legal brief challenging the termination of DACA

Thanks to a recent Supreme Court ruling, the Deferred Action for Childhood Arrivals program, or DACA, will for now continue to allow undocumented immigrants who came to the United States as children to apply for protection from deportation, as well as for other benefits such as work authorization. On June 18, 2020, the United States Supreme Court surprised immigration advocates and critics alike by deciding, in a 5-4 opinion written by Chief Justice John Roberts ’79, that the Trump Administration had acted improperly by terminating DACA. The narrow ruling surprised even the parties to the case by adopting a legal analysis that had drawn little attention in oral argument. The theory adopted by the Court had been developed and advanced by Harvard Law Professor Benjamin Eidelson, who served as co-counsel to a set of parties challenging the Administration’s termination of DACA. Harvard Law Today spoke with Eidelson about the Court’s decision and what it means moving forward.


Benjamin Eidelson

Benjamin Eidelson

Harvard Law Today: How did you first become involved in this case?

Benjamin Eidelson: This case got started in the fall of 2017, when I was in practice at Jenner & Block. I did a lot of work on it there, and we won in the lower courts. Then the Supreme Court announced that it would take the case right around the time that I was leaving to come to HLS in the summer of 2019. I agreed to stay on and co-author the Supreme Court brief. Because I had done a lot of thinking and writing in the lower courts, it made sense for me to stay involved in my independent capacity.

HLT: In a nutshell, what was the Court’s holding?

Eidelson: The Court held that the decision to rescind DACA was unlawful because the administration relied on a legal concern about work authorization and other benefits, but failed to distinguish between those benefits and the core of DACA itself, which provides assurances against deportation. And the Court held that because the administration essentially misunderstood the structure of the choice that it faced, its resolution of that choice couldn’t qualify as reasoned decision-making under the Administrative Procedure Act.

HLT: Most of the parties in the case did not make this precise argument; they appeared to be more focused on arguing whether DACA itself was legal or not. What made you take this other approach?

Eidelson: When the Court announced it was taking the case, I really dug into the case afresh to try to find the path with the best chance of winning a majority on the Supreme Court. The main argument being made in favor of the challengers had generally been that DACA is perfectly legal, so the administration just made a legal error when they got rid of it on the ground that it was illegal. But that argument only works if the Supreme Court agrees that DACA, in all of its aspects, really is legal. When I dug back into the case, I saw this other path that I hadn’t before.

HLT: What was the new argument that you saw?

Eidelson: The administration was just confused about what DACA actually is and how it actually works. They had conflated two things. There’s the non-enforcement decision—what’s called “deferred action”—and then there are these benefits, like work authorization, that come along with deferred action under rules and regulations that predate DACA.

The legal objection that the administration had articulated to DACA was overwhelmingly about those downstream benefits. But if that was the problem, then why did they respond to that by rescinding DACA?

In effect, they had ended the non-enforcement part, which had huge consequences for all these people, without giving any reason why that was appropriate. Under the Supreme Court’s body of administrative law, that kind of failure to think through the problem in a rational way is enough to reverse the decision and require them to rethink the issue from square one.

HLT: Back in October, you wrote an op-ed in the New York Times describing this approach as an “easy out” the Court could take to decide the DACA case in a way that would preserve the policy for now but give the president another opportunity to end it if desired. What made this position appeal to you?

Eidelson: Well for one thing, I just think it’s correct. But it also has the virtue of lowering the temperature some and resolving this case in an appropriate way without requiring the Court to confront harder and more divisive questions—questions about what exactly is and isn’t lawful in connection with DACA—that the Administration itself hasn’t really engaged with in a coherent way yet. This is an approach that lets you postpone any reckoning about that and just says there’s a more basic requirement that the government has to make decisions in an informed and rational way. And they didn’t do that here.

HLT: Given the Court’s ruling, what do you predict the Trump administration will do next?

Eidelson: They are in the same bind that they’ve been in all along, which is that DACA is hugely popular, and there would continue to be strong resistance and political cost to ending it. But at the same time, the president’s base very much wants to see him fighting on this issue. And I think that tension, which is the same tension that has bedeviled them all the way through, is very much still with them now. I imagine even they don’t know at this point what they’re going to do.

HLT: What are the long-term legal implications of the Court’s ruling?

Eidelson: The most important effect is, of course, ensuring that hundreds of thousands of people can keep living their lives without fear, or without as much fear. But I do think the opinion is a powerful reaffirmation of the principle that whatever your policy preferences may be, the government has to make decisions as an informed, rational person would, which is a pretty important idea.

This interview has been edited for clarity and length.


Benjamin Eidelson, constitutional law and legal theory scholar, joins HLS faculty