case_law | United States Federal
Department of Homeland Security v. Regents of Univ. of Cal.
Summary
The Department of Homeland Security’s decision to rescind the Deferred Action for Childhood Arrivals program was arbitrary and capricious under the Administrative Procedure Act.
Text
PRELIMINARY PRINT Volume 591 U. S. Part 1 Pages 1–70 OFFICIAL REPORTS OF THE SUPREME COURT June 18, 2020 Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, [email protected], of any typographical or other formal errors. CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 2019 DEPARTMENT OF HOMELAND SECURITY et al. v. REGENTS OF THE UNIVERSITY OF CALIFORNIA et al. certiorari to the united states court of appeals for the ninth circuit No. 18–587. Argued November 12, 2019—Decided June 18, 2020* In 2012, the Department of Homeland Security (DHS) issued a memoran- dum announcing an immigration relief program known as Deferred Ac- tion for Childhood Arrivals (DACA), which allows certain unauthorized aliens who arrived in the United States as children to apply for a two- year forbearance of removal. Those granted such relief become eligi- ble for work authorization and various federal benefts. Some 700,000 aliens have availed themselves of this opportunity. Two years later, DHS expanded DACA eligibility and created a related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). If implemented, that pro- gram would have made 4.3 million parents of U. S. citizens or lawful *Together with No. 18–588, Trump, President of the United States, et al. v. National Association for the Advancement of Colored People et al., on certiorari before judgment to the United States Court of Appeals for the District of Columbia Circuit, and No. 18–589, Wolf, Acting Secre- tary of Homeland Security, et al. v. Batalla Vidal et al., on certiorari before judgment to the United States Court of Appeals for the Second Circuit. 1 Page Proof Pending Publication 2 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Syllabus permanent residents eligible for the same forbearance from removal, work eligibility, and other benefts as DACA recipients. Texas, joined by 25 other States, secured a nationwide preliminary injunction barring implementation of both the DACA expansion and DAPA. The Fifth Circuit upheld the injunction, concluding that the program violated the Immigration and Nationality Act (INA), which carefully defnes eligibil- ity for benefts. This Court affrmed by an equally divided vote, and the litigation then continued in the District Court. In June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum, citing, among other reasons, the ongoing suit by Texas and new policy priorities. That September, the Attorney General advised Acting Secretary of Homeland Security Elaine C. Duke that DACA shared DAPA's legal faws and should also be rescinded. The next day, Duke acted on that advice. Taking into consideration the Fifth Circuit and Supreme Court rulings and the At- torney General's letter, Duke decided to terminate the program. She explained that DHS would no longer accept new applications, but that existing DACA recipients whose benefts were set to expire within six months could apply for a two-year renewal. For all other DACA recipi- ents, previously issued grants of relief would expire on their own terms, with no prospect for renewal. Several groups of plaintiffs challenged Duke's decision to rescind DACA, claiming that it was arbitrary and capricious in violation of the Administrative Procedure Act (APA) and infringed the equal protection guarantee of the Fifth Amendment's Due Process Clause. District Courts in California (Regents, No. 18–587), New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP , No. 18–588) all ruled for the plaintiffs. Each court rejected the Government's argu- ments that the claims were unreviewable under the APA and that the INA deprived the courts of jurisdiction. In Regents and Batalla Vidal, the District Courts further held that the equal protection claims were adequately alleged, and they entered coextensive nationwide prelimi- nary injunctions based on the conclusion that the plaintiffs were likely to succeed on their APA claims. The District Court in NAACP took a different approach. It deferred ruling on the equal protection chal- lenge but granted partial summary judgment to the plaintiffs on their APA claim, fnding that the rescission was inadequately explained. The court then stayed its order for 90 days to permit DHS to reissue a memorandum rescinding DACA, this time with a fuller explanation of the conclusion that DACA was unlawful. Two months later, Duke's suc- cessor, Secretary Kirstjen M. Nielsen, responded to the court's order. She declined to disturb or replace Duke's rescission decision and instead Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 3 Syllabus explained why she thought her predecessor's decision was sound. In addition to reiterating the illegality conclusion, she offered several new justifcations for the rescission. The Government moved for the Dis- trict Court to reconsider in light of this additional explanation, but the court concluded that the new reasoning failed to elaborate meaningfully on the illegality rationale. The Government appealed the various District Court decisions to the Second, Ninth, and D. C. Circuits, respectively. While those appeals were pending, the Government fled three petitions for certiorari before judgment. Following the Ninth Circuit affrmance in Regents, this Court granted certiorari. Held: The judgment in No. 18–587 is vacated in part and reversed in part; the judgment in No. 18–588 is affrmed; the February 13, 2018 order in No. 18–589 is vacated, the November 9, 2017 order is affrmed in part, and the March 29, 2018 order is reversed in part; and all of the cases are remanded. No. 18–587, 908 F. 3d 476, vacated in part and reversed in part; No. 18– 588, affrmed; and No. 18–589, February 13, 2018 order vacated, Novem- ber 9, 2017 order affrmed in part, and March 29, 2018 order reversed in part; all cases remanded. The Chief Justice delivered the opinion of the Court, except as to Part IV , concluding: 1. DHS's rescission decision is reviewable under the APA and is within this Court's jurisdiction. Pp. 16–20. (a) The APA's “basic presumption of judicial review” of agency ac- tion, Abbott Laboratories v. Gardner, 387 U. S. 136, 140, can be rebutted by showing that the “agency action is committed to agency discretion by law,” 5 U. S. C. § 701(a)(2). In Heckler v. Chaney, the Court held that this narrow exception includes an agency's decision not to institute an enforcement action. 470 U. S. 821, 831–832. The Government con- tends that DACA is a general non-enforcement policy equivalent to the individual non-enforcement decision in Chaney. But the DACA Memo- randum did not merely decline to institute enforcement proceedings; it created a program for conferring affrmative immigration relief. Therefore, unlike the non-enforcement decision in Chaney, DACA's creation—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832. In addition, by virtue of receiving de- ferred action, 700,000 DACA recipients may request work author- ization and are eligible for Social Security and Medicare. Access to such benefts is an interest “courts often are called upon to protect.” Ibid. DACA's rescission is thus subject to review under the APA. Pp. 16–19. Page Proof Pending Publication Page Proof Pending Publication 4 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Syllabus (b) The two jurisdictional provisions of the INA invoked by the Government do not apply. Title 8 U. S. C. § 1252(b)(9), which bars re- view of claims arising from “action[s]” or “proceeding[s] brought to re- move an alien,” is inapplicable where, as here, the parties do not chal- lenge any removal proceedings. And the rescission is not a decision “to commence proceedings, adjudicate cases, or execute removal orders” within the meaning of § 1252(g). Pp. 19–20. 2. DHS's decision to rescind DACA was arbitrary and capricious under the APA. Pp. 20–33. (a) In assessing the rescission, the Government urges the Court to consider not just the contemporaneous explanation offered by Acting Secretary Duke but also the additional reasons supplied by Secretary Nielsen nine months later. Judicial review of agency action, however, is limited to “the grounds that the agency invoked when it took the action.” Michigan v. EPA, 576 U. S. 743, 758. If those grounds are inadequate, a court may remand for the agency to offer “a fuller expla- nation of the agency's reasoning at the time of the agency action,” Pen- sion Beneft Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654 (emphasis added), or to “deal with the problem afresh” by taking new agency action, SEC v. Chenery Corp., 332 U. S. 194, 201. Because Sec- retary Nielsen chose not to take new action, she was limited to elaborat- ing on the agency's original reasons. But her reasoning bears little relationship to that of her predecessor and consists primarily of imper- missible “post hoc rationalization.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 420. The rule requiring a new decision before considering new reasons is not merely a formality. It serves important administrative law values by promoting agency accountabil- ity to the public, instilling confdence that the reasons given are not simply convenient litigating positions, and facilitating orderly review. Each of these values would be markedly undermined if this Court al- lowed DHS to rely on reasons offered nine months after the rescission and after three different courts had identifed faws in the original explanation. Pp. 20–24. (b) Acting Secretary Duke's rescission memorandum failed to con- sider important aspects of the problem before the agency. Although Duke was bound by the Attorney General's determination that DACA is illegal, see 8 U. S. C. § 1103(a)(1), deciding how best to address that determination involved important policy choices reserved for DHS. Acting Secretary Duke plainly exercised such discretionary authority in winding down the program, but she did not appreciate the full scope of her discretion. The Attorney General concluded that the legal defects in DACA mirrored those that the courts had recognized in DAPA. The Fifth Circuit, the highest court to offer a reasoned opinion on DAPA's Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 5 Syllabus legality, found that DAPA violated the INA because it extended eligibil- ity for benefts to a class of unauthorized aliens. But the defning fea- ture of DAPA (and DACA) is DHS's decision to defer removal, and the Fifth Circuit carefully distinguished that forbearance component from the associated benefts eligibility. Eliminating benefts eligibility while continuing forbearance thus remained squarely within Duke's discretion. Yet, rather than addressing forbearance in her decision, Duke treated the Attorney General's conclusion regarding the illegality of benefts as suffcient to rescind both benefts and forbearance, without explanation. That reasoning repeated the error in Motor Vehicle Manufacturers As- sociation of the United States, Inc. v. State Farm— treating a rationale that applied to only part of a policy as suffcient to rescind the entire policy. 463 U. S. 29, 51. While DHS was not required to “consider all policy alternatives,” ibid., deferred action was “within the ambit of the existing” policy, ibid.; indeed, it was the centerpiece of the policy. In failing to consider the option to retain deferred action, Duke “failed to supply the requisite `reasoned analysis.' ” Id., at 57. That omission alone renders Duke's decision arbitrary and capricious, but it was not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742. Certain features of the DACA policy may affect the strength of any reliance interests, but those features are for the agency to consider in the frst instance. DHS has fexibility in addressing any reliance interests and could have considered various accommodations. While the agency was not re- quired to pursue these accommodations, it was required to assess the existence and strength of any reliance interests, and weigh them against competing policy concerns. Its failure to do so was arbitrary and capri- cious. Pp. 24–33. The Chief Justice, joined by Justice Ginsburg, Justice Breyer, and Justice Kagan, concluded in Part IV that respondents' claims fail to establish a plausible inference that the rescission was motivated by animus in violation of the equal protection guarantee of the Fifth Amendment. Pp. 33–35. Roberts, C. J., delivered the opinion of the Court, except as to Part IV . Ginsburg, Breyer, and Kagan, JJ., joined that opinion in full, and Sotomayor, J., joined as to all but Part IV . Sotomayor, J., fled an opin- ion concurring in part, concurring in the judgment in part, and dissenting in part post, p. 36. Thomas, J., fled an opinion concurring in the judg- ment in part and dissenting in part, in which Alito and Gorsuch, JJ., joined post, p. 39. Alito, J., post, p. 63, and Kavanaugh, J., post, p. 64, fled opinions concurring in the judgment in part and dissenting in part. 6 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Counsel Solicitor General Francisco argued the cause for petition- ers in all cases. With him on the briefs were Assistant Attorney General Hunt, Deputy Solicitor General Wall, Deputy Assistant Attorney General Mooppan, Jonathan Y . Ellis, Mark B. Stern, and Thomas Pulham. Theodore B. Olson argued the cause for private respond- ents in all cases. With him on the briefs in Nos. 18–587 and 18–589 were Stuart F. Delery, Matthew S. Rozen, Andrew J. Wilhelm, Theodore J. Boutros, Jr., Ethan D. Dettmer, Jona- than N. Soleimani, Mark D. Rosenbaum, Judy London, Erwin Chemerinsky, Laurence H. Tribe, Luis Cortes Ro- mero, Leah M. Litman, Stacey M. Leyton, James R. Wil- liams, Greta S. Hansen, Michael J. Wishnie, Muneer I. Ahmad, Marisol Orihuela, Karen C. Tumlin, Amy S. Tay- lor, Trudy S. Rebert, Araceli Martínez-Olguín, Mayra B. Joachin, and Scott Foletta. On the brief for respondent Re- gents of the University of California et al. in No. 18–587 were Robert A. Long, Mark H. Lynch, Alexander A. Beren- gaut, Megan A. Crowley, David Watnick, Charles F. Robin- son, Margaret Wu, and Brian Danitz. On the brief in No. 18–588 were Lindsay C. Harrison, Ian Heath Gershen- gorn, Thomas J. Perrelli, Matthew E. Price, Ishan K. Bhabha, Benjamin M. Eidelson, Joseph M. Sellers, Ramona E. Romero, Wesley Markham, Cynthia L. Randall, David J. Strom, and Peter J. Ford. Michael J. Mongan, Solicitor General of California, argued the cause for state respondents in all cases. With him on the brief in No. 18–587 were Xavier Becerra, Attorney Gen- eral of California, Michael L. Newman, Senior Assistant At- torney General, Samuel P . Siegel and Joshua Patashnik, Deputy Solicitors General, and Shubhra Shivpuri and James F. Zahradka II, Deputy Attorneys General, by Aaron M. Frey, Attorney General of Maine, and Susan P . Herman, Deputy Attorney General, by Brian E. Frosh, Attorney Gen- eral of Maryland, Steven M. Sullivan, Solicitor General, and Leah J. Tulin, Assistant Attorney General, and by Keith El- lison, Attorney General of Minnesota, Liz Kramer, Solicitor Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 7 Counsel General, and Jacob Campion, Assistant Attorney General. On the brief in No. 18–589 were Letitia James, Attorney General of New York, Barbara D. Underwood, Solicitor Gen- eral, Anisha S. Dasgupta, Deputy Solicitor General, Andrew W. Amend, Assistant Deputy Solicitor General, and David S. Frankel, Assistant Solicitor General, and by the Attorneys General for their respective jurisdictions as follows: Phil Weiser of Colorado, William Tong of Connecticut, Kathy Jennings of Delaware, Karl A. Racine of the District of Co- lumbia, Clare E. Connors of Hawaii, Kwame Raoul of Illi- nois, Thomas J. Miller of Iowa, Maura Healey of Massachu- setts, Hector H. Balderas of New Mexico, Josh Stein of North Carolina, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter F. Neronha of Rhode Island, Thomas J. Donovan of Vermont, Mark R. Herring of Virginia, and Robert W. Ferguson of Washington.† †Briefs of amici curiae urging reversal in all cases were fled for the State of Texas et al. by Ken Paxton, Attorney General of Texas, Kyle D. Hawkins, Solicitor General, Jeffrey C. Mateer, First Assistant Attorney General, Matthew H. Frederick, Deputy Solicitor General, and Ari Cuenin and Lanora C. Pettit, Assistant Solicitors General, and by the Attorneys General for their respective States as follows: Steve Marshall of Alabama, Kevin G. Clarkson of Alaska, Mark Brnovich of Arizona, Leslie Rutledge of Arkansas, Ashley Moody of Florida, Derek Schmidt of Kansas, Jeff Landry of Louisiana, Doug Peterson of Nebraska, Alan Wilson of South Carolina, Jason R. Ravnsborg of South Dakota, and Patrick Morrisey of West Virginia; for the Cato Institute et al. by Ilya Shapiro and Josh Blackman; for the Center for Constitutional Jurisprudence by John C. Eastman and Anthony T. Caso; for Citizens United et al. by Robert J. Olson, Jeremiah L. Morgan, Herbert W. Titus, and William J. Olson; for the Immigration Reform Law Institute by Christopher J. Hajec; for Save Jobs USA et al. by John M. Miano; for the Southeastern Legal Foundation by Kurt R. Hilbert, Kelly H. Brolly, and Kimberly S. Hermann; and for Ronald A. Cass et al. by Mr. Cass, pro se. Briefs of amici curiae urging affrmance in all cases were fled for the State of Nevada et al. by Aaron D. Ford, Attorney General of Nevada, Heidi Parry Stern, Solicitor General, Craig A. Newby, Deputy Solicitor General, Dana Nessel, Attorney General of Michigan, Eric J. Wilson, Dep- uty Attorney General of Wisconsin, and Steve Bullock, Governor of Mon- tana; for Administrative Law Practitioners by Kevin K. Russell, Daniel Page Proof Pending Publication 8 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court Chief Justice Roberts delivered the opinion of the Court, except as to Part IV . In the summer of 2012, the Department of Homeland Secu- rity (DHS) announced an immigration program known as De- Woofter, Charles H. Davis, and Erica Oleszczuk Evans; for Administra- tive Law Scholars by Seth P . Waxman and Alan E. Schoenfeld; for Alianza Americas et al. by Neil V. McKittrick; for the American Council on Educa- tion et al. by Neal K. Katyal, Jessica L. Ellsworth, and Mitchell P . Reich; for the American Historical Association et al. by Pratik A. Shah, Z. W. Julius Chen, Jessica Weisel, and Robert S. Chang; for the American Pro- fessional Society on the Abuse of Children et al. by Mary Kelly Persyn and Kelsi Brown Corkran; for the Association of American Medical Col- leges et al. by Jonathan S. Franklin, Heather J. Alarcon, and Frank R. Trinity; for Current and Former Prosecutors et al. by Mary B. McCord, Joshua A. Geltzer, Annie L. Owens, Matthew J. Piers, and Caryn C. Led- erer; for Current Members of Congress et al. by Elizabeth B. Wydra, Bri- anne J. Gorod, and Brian R. Frazelle; for Empirical Scholars by Nikolas Bowie and Oren Nimni; for Former Homeland Security and Immigration Offcials by Joshua Riley, Menno Goedman, Albert Giang, Jeh C. Johnson, and Masha G. Hansford; for Former National Security Offcials by Harold Hongju Koh, Hope R. Metcalf, and Phillip Spector; for Former Service Secretaries et al. by Charles B. Klein, Peter E. Perkowski, and Harvey Weiner; for the Government of the United Mexican States by Adela Elvia Ruth McChesney and Faye Magdalena Kolly; for Immigration Law Schol- ars by Harry Lee; for Institutions of Higher Education by Bruce V. Spiva; for the Lawyers' Committee for Civil Rights Under Law et al. by William D. Coston, Martin L. Saad, Kristen Clarke, Jon Greenbaum, Dariely Ro- driguez, and Phylicia H. Hill; for the NAACP Legal Defense & Education Fund, Inc., et al. by Daniel Harawa, Sherrilyn A. Ifll, Janai S. Nelson, Samuel Spital, Natasha Merle, Raymond Audain, and Cara McClellan; for the National Association of Home Builders et al. by Gavin R. Villareal; for the National Education Association et al. by Alice O'Brien, Emma Leheny, and Lubna A. Alam; for the National Queer Asian Pacifc Islander Alliance et al. by Susan M. Finegan; for the National School Boards Asso- ciation et al. by Richard P . Bress and Francisco M. Negrón, Jr.; for Nine- teen Colleges and Universities by Anton Metlitsky and Jennifer B. So- koler; for Nonproft Legal Services Organizations by Maureen P . Alger, Monique R. Sherman, Jonathan S. Kolodner, and Jessa DeGroote; for Public Citizen et al. by Scott L. Nelson and Allison M. Zieve; for the Public Interest Law Center et al. by William Alden McDaniel, Jr., Thomas W. Hazlett, and Mansi G. Shah; for Service Employees Interna- Cite as: 591 U. S. 1 (2020) 9 Opinion of the Court ferred Action for Childhood Arrivals, or DACA. That pro- gram allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefts. Some 700,000 aliens have availed themselves of this opportunity. Five years later, the Attorney General advised DHS to rescind DACA, based on his conclusion that it was unlawful. The Department's Acting Secretary issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her deci- sion. For the reasons that follow, we conclude that the Act- ing Secretary did violate the APA, and that the rescission must be vacated. I A In June 2012, the Secretary of Homeland Security issued a memorandum announcing an immigration relief program tional Union et al. by Deepak Gupta, Nicole G. Berner, Claire Prestel, Harold C. Becker, Matthew J. Ginsburg , and Judith Rivlin; for Teach for America, Inc., by Ronald G. Blum and Harvey L. Rochman; for Texas v. United States Defendant-Intervenors DACA Recipients et al. by Nina Perales, Douglas Hallward-Driemeier, Gurbir S. Grewal, Attorney Gen- eral of New Jersey, and Jeremy M. Feigenbaum and Glenn J. Moramarco, Assistant Attorneys General; for the United States Conference of Catholic Bishops et al. by Christopher J. Wright and Stephen W. Miller; for United We Dream et al. by Peter Karanjia and Geoffrey Brounell; for Tim Cook et al. by E. Joshua Rosenkranz, Mark S. Davies, Thomas M. Bondy, Jer- emy R. Peterman, and Aaron Brecher; for 109 Cities et al. by Margaret L. Carter, Daniel R. Suvor, Michael N. Feuer, James P . Clark, Valerie L. Flores, Danielle Goldstein, and Michael Dundas; for 127 Religious Orga- nizations by Steven A. Zalesin, Adeel A. Mangi, Farhana Khera, and Ju- varia Khan; and for 143 U. S. Business Associations et al. by Andrew J. Pincus. Page Proof Pending Publication 10 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court for “certain young people who were brought to this country as children.” App. to Pet. for Cert. in No. 18–587, p. 97a (App. to Pet. for Cert.). Known as DACA, the program ap- plies to childhood arrivals who were under age 31 in 2012; have continuously resided here since 2007; are current stu- dents, have completed high school, or are honorably dis- charged veterans; have not been convicted of any serious crimes; and do not threaten national security or public safety. Id., at 98a. DHS concluded that individuals who meet these criteria warrant favorable treatment under the immigration laws because they “lacked the intent to violate the law,” are “productive” contributors to our society, and “know only this country as home.” Id., at 98a–99a. “[T]o prevent [these] low priority individuals from being removed from the United States,” the DACA Memorandum instructs Immigration and Customs Enforcement to “exer- cise prosecutorial discretion[ ] on an individual basis . . . by deferring action for a period of two years, subject to re- newal.” Id., at 100a. In addition, it directs U. S. Citizen- ship and Immigration Services (USCIS) to “accept applica- tions to determine whether these individuals qualify for work authorization during this period of deferred action,” id., at 101a, as permitted under regulations long predating DACA's creation, see 8 CFR § 274a.12(c)(14) (2012) (permit- ting work authorization for deferred action recipients who establish “economic necessity”); 46 Fed. Reg. 25080–25081 (1981) (similar). Pursuant to other regulations, deferred ac- tion recipients are considered “lawfully present” for pur- poses of, and therefore eligible to receive, Social Security and Medicare benefts. See 8 CFR § 1.3(a)(4)(vi); 42 CFR § 417.422(h) (2019). In November 2014, two years after DACA was promul- gated, DHS issued a memorandum announcing that it would expand DACA eligibility by removing the age cap, shifting the date-of-entry requirement from 2007 to 2010, and extend- ing the deferred action and work authorization period to Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 11 Opinion of the Court three years. App. to Pet. for Cert. 106a–107a. In the same memorandum, DHS created a new, related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. That program would have authorized deferred action for up to 4.3 million parents whose children were U. S. citizens or lawful permanent resi- dents. These parents were to enjoy the same forbearance, work eligibility, and other benefts as DACA recipients. Before the DAPA Memorandum was implemented, 26 States, led by Texas, fled suit in the Southern District of Texas. The States contended that DAPA and the DACA expansion violated the APA's notice and comment require- ment, the Immigration and Nationality Act (INA), and the Executive's duty under the Take Care Clause of the Consti- tution. The District Court found that the States were likely to succeed on the merits of at least one of their claims and entered a nationwide preliminary injunction barring imple- mentation of both DAPA and the DACA expansion. See Texas v. United States, 86 F. Supp. 3d 591, 677–678 (2015). A divided panel of the Court of Appeals for the Fifth Cir- cuit affrmed the preliminary injunction. Texas v. United States, 809 F. 3d 134, 188 (2015). In opposing the injunction, the Government argued that the DAPA Memorandum re- fected an unreviewable exercise of the Government's en- forcement discretion. The Fifth Circuit majority disagreed. It reasoned that the deferred action described in the DAPA Memorandum was “much more than nonenforcement: It would affrmatively confer `lawful presence' and associated benefts on a class of unlawfully present aliens.” Id., at 166. From this, the majority concluded that the creation of the DAPA program was not an unreviewable action “committed to agency discretion by law.” Id., at 169 (quoting 5 U. S. C. § 701(a)(2)). The majority then upheld the injunction on two grounds. It frst concluded the States were likely to succeed on their procedural claim that the DAPA Memorandum was a sub- Page Proof Pending Publication Page Proof Pending Publication 12 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court stantive rule that was required to undergo notice and com- ment. It then held that the APA required DAPA to be set aside because the program was “manifestly contrary” to the INA, which “expressly and carefully provides legal designa- tions allowing defned classes” to “receive the benefts” asso- ciated with “lawful presence” and to qualify for work au- thorization, 809 F. 3d, at 179–181, 186 (internal quotation marks omitted). Judge King dissented. This Court affrmed the Fifth Circuit's judgment by an equally divided vote, which meant that no opinion was is- sued. United States v. Texas, 579 U. S. 547 (2016) (per cu- riam). For the next year, litigation over DAPA and the DACA expansion continued in the Southern District of Texas, while implementation of those policies remained enjoined. Then, in June 2017, following a change in Presidential ad- ministrations, DHS rescinded the DAPA Memorandum. In explaining that decision, DHS cited the preliminary injunc- tion and ongoing litigation in Texas, the fact that DAPA had never taken effect, and the new administration's immigration enforcement priorities. Three months later, in September 2017, Attorney General Jefferson B. Sessions III sent a letter to Acting Secretary of Homeland Security Elaine C. Duke, “advis[ing]” that DHS “should rescind” DACA as well. App. 877. Citing the Fifth Circuit's opinion and this Court's equally divided af- frmance, the Attorney General concluded that DACA shared the “same legal . . . defects that the courts recognized as to DAPA” and was “likely” to meet a similar fate. Id., at 878. “In light of the costs and burdens” that a rescission would “impose[ ] on DHS,” the Attorney General urged DHS to “consider an orderly and effcient wind-down process.” Ibid. The next day, Duke acted on the Attorney General's ad- vice. In her decision memorandum, Duke summarized the history of the DACA and DAPA programs, the Fifth Circuit Cite as: 591 U. S. 1 (2020) 13 Opinion of the Court opinion and ensuing affrmance, and the contents of the At- torney General's letter. App. to Pet. for Cert. 111a–117a. “Taking into consideration the Supreme Court's and the Fifth Circuit's rulings” and the “letter from the Attorney General,” she concluded that the “DACA program should be terminated.” Id., at 117a. Duke then detailed how the program would be wound down: No new applications would be accepted, but DHS would entertain applications for two-year renewals from DACA recipients whose benefts were set to expire within six months. For all other DACA recipients, previously is- sued grants of deferred action and work authorization would not be revoked but would expire on their own terms, with no prospect for renewal. Id., at 117a–118a. B Within days of Acting Secretary Duke's rescission an- nouncement, multiple groups of plaintiffs ranging from indi- vidual DACA recipients and States to the Regents of the University of California and the National Association for the Advancement of Colored People challenged her decision in the U. S. District Courts for the Northern District of Califor- nia (Regents, No. 18–587), the Eastern District of New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18–588). The relevant claims are that the re- scission was arbitrary and capricious in violation of the APA and that it infringed the equal protection guarantee of the Fifth Amendment's Due Process Clause. 1 All three District Courts ruled for the plaintiffs, albeit at different stages of the proceedings. 2 In doing so, each court 1 Plaintiffs also raised notice and comment claims, which uniformly failed below, and assorted due process challenges, some of which survived mo- tions to dismiss. Those claims are not before us. 2 In a related challenge not at issue here, the District Court for the District of Maryland granted partial summary judgment in favor of the Government. Casa de Maryland v. United States Dept. of Homeland Page Proof Pending Publication 14 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court rejected the Government's threshold arguments that the claims were unreviewable under the APA and that the INA deprived the court of jurisdiction. 298 F. Supp. 3d 209, 223– 224, 234–235 (DC 2018); 279 F. Supp. 3d 1011, 1029–1033 (ND Cal. 2018); 295 F. Supp. 3d 127, 150, 153–154 (EDNY 2017). In Regents and Batalla Vidal, the District Courts held that the equal protection claims were adequately alleged. 298 F. Supp. 3d 1304, 1315 (ND Cal. 2018); 291 F. Supp. 3d 260, 279 (EDNY 2018). Those courts also entered coexten- sive nationwide preliminary injunctions, based on the conclu- sion that the plaintiffs were likely to succeed on the merits of their claims that the rescission was arbitrary and capricious. These injunctions did not require DHS to accept new appli- cations, but did order the agency to allow DACA recipients to “renew their enrollments.” 279 F. Supp. 3d, at 1048; see 279 F. Supp. 3d 401, 437 (EDNY 2018). In NAACP, the D. C. District Court took a different course. In April 2018, it deferred ruling on the equal pro- tection challenge but granted partial summary judgment to the plaintiffs on their APA claim, holding that Acting Secre- tary Duke's “conclusory statements were insuffcient to ex- plain the change in [the agency's] view of DACA's lawful- ness.” 298 F. Supp. 3d, at 243. The District Court stayed its order for 90 days to permit DHS to “reissue a memoran- dum rescinding DACA, this time providing a fuller explana- tion for the determination that the program lacks statutory and constitutional authority.” Id., at 245. Two months later, Duke's successor, Secretary Kirstjen M. Nielsen, responded via memorandum. App. to Pet. for Cert. 120a–126a. She explained that, “[h]aving considered the Security, 284 F. Supp. 3d 758 (2018). After the Government fled petitions for certiorari in the instant cases, the Fourth Circuit reversed that deci- sion and vacated Acting Secretary Duke's rescission as arbitrary and ca- pricious. Casa de Maryland v. United States Dept. of Homeland Secu- rity, 924 F. 3d 684 (2019), cert. pending, No. 18–1469. The Fourth Circuit has since stayed its mandate. Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 15 Opinion of the Court Duke memorandum,” she “decline[d] to disturb” the rescis- sion. Id., at 121a. Secretary Nielsen went on to articulate her “understanding” of Duke's memorandum, identifying three reasons why, in Nielsen's estimation, “the decision to rescind the DACA policy was, and remains, sound.” Ibid. First, she reiterated that, “as the Attorney General con- cluded, the DACA policy was contrary to law.” Id., at 122a. Second, she added that, regardless, the agency had “serious doubts about [DACA's] legality” and, for law enforcement reasons, wanted to avoid “legally questionable” policies. Id., at 123a. Third, she identifed multiple policy reasons for rescinding DACA, including (1) the belief that any class- based immigration relief should come from Congress, not through executive non-enforcement; (2) DHS's preference for exercising prosecutorial discretion on “a truly individualized, case-by-case basis”; and (3) the importance of “project[ing] a message” that immigration laws would be enforced against all classes and categories of aliens. Id., at 123a–124a. In her fnal paragraph, Secretary Nielsen acknowledged the “asserted reliance interests” in DACA's continuation but con- cluded that they did not “outweigh the questionable legality of the DACA policy and the other reasons” for the rescission discussed in her memorandum. Id., at 125a. The Government asked the D. C. District Court to revise its prior order in light of the reasons provided by Secretary Nielsen, but the court declined. In the court's view, the new memorandum, which “fail[ed] to elaborate meaningfully” on the agency's illegality rationale, still did not provide an ade- quate explanation for the September 2017 rescission. 315 F. Supp. 3d 457, 460, 473–474 (2018). The Government appealed the various District Court deci- sions to the Second, Ninth, and D. C. Circuits, respectively. In November 2018, while those appeals were pending, the Government simultaneously fled three petitions for certio- rari before judgment. After the Ninth Circuit affrmed the nationwide injunction in Regents, see 908 F. 3d 476 (2018), Page Proof Pending Publication 16 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court but before rulings from the other two Circuits, we granted the petitions and consolidated the cases for argument. 588 U. S. ––– (2019). The issues raised here are (1) whether the APA claims are reviewable, (2) if so, whether the rescission was arbitrary and capricious in violation of the APA, and (3) whether the plaintiffs have stated an equal protection claim. II The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so. The APA “sets forth the procedures by which federal agencies are accountable to the public and their actions sub- ject to review by the courts.” Franklin v. Massachusetts, 505 U. S. 788, 796 (1992). It requires agencies to engage in “reasoned decisionmaking,” Michigan v. EPA, 576 U. S. 743, 750 (2015) (internal quotation marks omitted), and directs that agency actions be “set aside” if they are “arbitrary” or “capricious,” 5 U. S. C. § 706(2)(A). Under this “narrow standard of review, . . . a court is not to substitute its judg- ment for that of the agency,” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 513 (2009) (internal quotation marks omit- ted), but instead to assess only whether the decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment,” Citizens to Pre- serve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971). But before determining whether the rescission was arbi- trary and capricious, we must frst address the Government's contentions that DHS's decision is unreviewable under the APA and outside this Court's jurisdiction. A The APA establishes a “basic presumption of judicial re- view [for] one `suffering legal wrong because of agency ac- tion.' ” Abbott Laboratories v. Gardner, 387 U. S. 136, 140 Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 17 Opinion of the Court (1967) (quoting § 702). That presumption can be rebutted by a showing that the relevant statute “preclude[s]” review, § 701(a)(1), or that the “agency action is committed to agency discretion by law,” § 701(a)(2). The latter exception is at issue here. To “honor the presumption of review, we have read the exception in § 701(a)(2) quite narrowly,” Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U. S. 9, 23 (2018), confning it to those rare “administrative decision[s] tradi- tionally left to agency discretion,” Lincoln v. Vigil, 508 U. S. 182, 191 (1993). This limited category of unreviewable ac- tions includes an agency's decision not to institute enforce- ment proceedings, Heckler v. Chaney, 470 U. S. 821, 831–832 (1985), and it is on that exception that the Government pri- marily relies. In Chaney, several death-row inmates petitioned the Food and Drug Administration (FDA) to take enforcement action against two States to prevent their use of certain drugs for lethal injection. The Court held that the FDA's denial of that petition was presumptively unreviewable in light of the well-established “tradition” that “an agency's decision not to prosecute or enforce” is “generally committed to an agency's absolute discretion.” Id., at 831. We identifed a constella- tion of reasons that underpin this tradition. To start, a non- enforcement decision “often involves a complicated balancing of a number of factors which are peculiarly within [the agency's] expertise,” such as “whether the particular en- forcement action requested best fts the agency's overall poli- cies.” Ibid. The decision also mirrors, “to some extent,” a prosecutor's decision not to indict, which has “long been regarded as the special province of the Executive Branch.” Id., at 832. And, as a practical matter, “when an agency refuses to act” there is no action to “provide[ ] a focus for judicial review.” Ibid. The Government contends that a general non-enforcement policy is equivalent to the individual non-enforcement deci- 18 DEPARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court sion at issue in Chaney. In each case, the Government argues, the agency must balance factors peculiarly within its expertise, and does so in a manner akin to a crimi- nal prosecutor. Building on that premise, the Government argues that the rescission of a non-enforcement policy is no different—for purposes of reviewability—from the adoption of that policy. While the rescission may lead to increased enforcement, it does not, by itself, constitute a particular en- forcement action. Applying this logic to the facts here, the Government submits that DACA is a non-enforcement policy and that its rescission is therefore unreviewable. But we need not test this chain of reasoning because DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely “refus[e] to institute proceedings” against a particular entity or even a particular class. Ibid. Instead, it directed USCIS to “establish a clear and effcient process” for identifying individuals who met the enumerated criteria. App. to Pet. for Cert. 100a. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would re- ceive the two-year forbearance. These proceedings are ef- fectively “adjudicat[ions].” Id., at 117a. And the result of these adjudications—DHS's decision to “grant deferred ac- tion,” Brief for Petitioners 45—is an “affrmative act of ap- proval,” the very opposite of a “refus[al] to act,” Chaney, 470 U. S., at 831–832. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affrmative immigration relief. The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832. The benefits attendant to deferred action provide further confrmation that DACA is more than simply a non- enforcement policy. As described above, by virtue of receiv- ing deferred action, the 700,000 DACA recipients may re- quest work authorization and are eligible for Social Security Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 19 Opinion of the Court and Medicare. See supra, at 10. Unlike an agency's refusal to take requested enforcement action, access to these types of benefts is an interest “courts often are called upon to protect.” Chaney, 470 U. S., at 832. See also Barnhart v. Thomas, 540 U. S. 20 (2003) (reviewing eligibility determina- tion for Social Security benefts). Because the DACA program is more than a non- enforcement policy, its rescission is subject to review under the APA. B The Government also invokes two jurisdictional provisions of the INA as independent bars to review. Neither applies. Section 1252(b)(9) bars review of claims arising from “ac- tion[s]” or “proceeding[s] brought to remove an alien.” 66 Stat. 209, as amended, 8 U. S. C. § 1252(b)(9). That targeted language is not aimed at this sort of case. As we have said before, § 1252(b)(9) “does not present a jurisdictional bar” where those bringing suit “are not asking for review of an order of removal,” “the decision . . . to seek removal,” or “the process by which . . . removability will be determined.” Jennings v. Rodriguez, 583 U. S. 281, 294–295 (2018) (plural- ity opinion); id., at 355 (Breyer , J., dissenting). And it is certainly not a bar where, as here, the parties are not chal- lenging any removal proceedings. Section 1252(g) is similarly narrow. That provision limits review of cases “arising from” decisions “to commence pro- ceedings, adjudicate cases, or execute removal orders.” § 1252(g). We have previously rejected as “implausible” the Government's suggestion that § 1252(g) covers “all claims arising from deportation proceedings” or imposes “a general jurisdictional limitation.” Reno v. American-Arab Anti- Discrimination Comm., 525 U. S. 471, 482 (1999). The re- scission, which revokes a deferred action program with asso- ciated benefts, is not a decision to “commence proceedings,” much less to “adjudicate” a case or “execute” a removal order. Page Proof Pending Publication 20 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court With these preliminary arguments out of the way, we pro- ceed to the merits. III A Deciding whether agency action was adequately explained requires, frst, knowing where to look for the agency's expla- nation. The natural starting point here is the explanation provided by Acting Secretary Duke when she announced the rescission in September 2017. But the Government urges us to go on and consider the June 2018 memorandum submit- ted by Secretary Nielsen as well. That memo was prepared after the D. C. District Court vacated the Duke rescission and gave DHS an opportunity to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” 298 F. Supp. 3d, at 245. Accord- ing to the Government, the Nielsen Memorandum is properly before us because it was invited by the District Court and refects the views of the Secretary of Homeland Security— the offcial responsible for immigration policy. Respondents disagree, arguing that the Nielsen Memorandum, issued nine months after the rescission, impermissibly asserts prudential and policy reasons not relied upon by Duke. It is a “foundational principle of administrative law” that judicial review of agency action is limited to “the grounds that the agency invoked when it took the action.” Michi- gan, 576 U. S., at 758. If those grounds are inadequate, a court may remand for the agency to do one of two things: First, the agency can offer “a fuller explanation of the agency's reasoning at the time of the agency action.” Pen- sion Beneft Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654 (1990) (emphasis added). See also Alpharma, Inc. v. Leavitt, 460 F. 3d 1, 5–6 (CADC 2006) (Garland, J.) (per- mitting an agency to provide an “amplifed articulation” of a prior “conclusory” observation (internal quotation marks Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 21 Opinion of the Court omitted)). This route has important limitations. When an agency's initial explanation “indicate[s] the determinative reason for the fnal action taken,” the agency may elaborate later on that reason (or reasons) but may not provide new ones. Camp v. Pitts, 411 U. S. 138, 143 (1973) (per curiam ). Alternatively, the agency can “deal with the problem afresh” by taking new agency action. SEC v. Chenery Corp., 332 U. S. 194, 201 (1947) ( Chenery II). An agency taking this route is not limited to its prior reasons but must comply with the procedural requirements for new agency action. 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. Secre- tary Nielsen took the frst 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. App. to Pet. for Cert. 121a. Indeed, the Gov- ernment'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.” Motion to Revise Order in No. 17–cv–1907 etc. (D DC), pp. 2, 19. Contrary to the position of the Gov- ernment before this Court, and of Justice Kavanaugh in dissent, post, at 64 (opinion concurring in judgment in part and dissenting in part), the Nielsen Memorandum was by its own terms not a new rule implementing a new policy. Because Secretary Nielsen chose to elaborate on the rea- sons for the initial rescission rather than take new adminis- trative action, she was limited to the agency's original rea- sons, and her explanation “must be viewed critically” to ensure that the rescission is not upheld on the basis of imper- missible “post hoc rationalization.” Overton Park, 401 U. S., at 420. But despite purporting to explain the Duke Memo- randum, Secretary Nielsen's reasoning bears little relation- Page Proof Pending Publication 22 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court ship to that of her predecessor. Acting Secretary Duke rested the rescission on the conclusion that DACA is unlaw- ful. Period. See App. to Pet. for Cert. 117a. By contrast, Secretary Nielsen's new memorandum offered three “sepa- rate and independently suffcient reasons” for the rescission, id., at 122a, only the frst of which is the conclusion that DACA is illegal. Her second reason is that DACA is, at minimum, legally questionable and should be terminated to maintain public confdence in the rule of law and avoid burdensome litigation. No such justifcation can be found in the Duke Memorandum. Legal uncertainty is, of course, related to illegality. But the two justifcations are meaningfully distinct, especially in this context. While an agency might, for one reason or another, choose to do nothing in the face of uncertainty, illegality pre- sumably requires remedial action of some sort. The policy reasons that Secretary Nielsen cites as a third basis for the rescission are also nowhere to be found in the Duke Memorandum. That document makes no mention of a preference for legislative fxes, the superiority of case-by- case decisionmaking, the importance of sending a message of robust enforcement, or any other policy consideration. Nor are these points included in the legal analysis from the Fifth Circuit and the Attorney General. They can be viewed only as impermissible post hoc rationalizations and thus are not properly before us. The Government, echoed by Justice Kavanaugh, protests that requiring a new decision before considering Nielsen's new justifcations would be “an idle and useless formality.” NLRB v. Wyman-Gordon Co., 394 U. S. 759, 766, n. 6 (1969) (plurality opinion). See also post, at 67–68. Procedural re- quirements 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,” Bowen v. American Hospital Assn., 476 Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 23 Opinion of the Court U. S. 610, 643 (1986), by ensuring that parties and the public can respond fully and in a timely manner to an agency's exer- cise of authority. Considering only contemporaneous expla- nations for agency action also instills confdence that the rea- sons given are not simply “convenient litigating position[s].” Christopher v. SmithKline Beecham Corp., 567 U. S. 142, 155 (2012) (internal quotation marks omitted). Permitting agencies to invoke belated justifcations, on the other hand, can upset “the orderly functioning of the process of review,” SEC v. Chenery Corp., 318 U. S. 80, 94 (1943), 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 an- nounced the rescission and after three different courts had identifed faws in the original explanation. Justice Kavanaugh asserts that this “foundational prin- ciple of administrative law,” Michigan, 576 U. S., at 758, ac- tually limits only what lawyers may argue, not what agencies may do. Post, at 67. While it is true that the Court has often rejected justifcations 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 con- temporaneous explanations apply with equal force regardless whether post hoc justifcations are raised in court by those appearing on behalf of the agency or by agency offcials themselves. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 539 (1981) (“[T]he post hoc rational- izations of the agency . . . cannot serve as a suffcient predi- cate for agency action.”); Overton Park, 401 U. S., at 419 (re- jecting “litigation affdavits” from agency offcials as “merely `post hoc ' rationalizations”). 3 3 Justice Kavanaugh further argues that the contemporaneous expla- nation requirement applies only to agency adjudications, not rulemakings. Post, at 67–68 (opinion concurring in judgment in part and dissenting in Page Proof Pending Publication 24 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court Justice Holmes famously wrote that “[m]en must turn square corners when they deal with the Government.” Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920). But it is also true, particularly when so much is at stake, that “the Government should turn square corners in dealing with the people.” St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision. B We turn, fnally, to whether DHS's decision to rescind DACA was arbitrary and capricious. As noted earlier, Act- ing Secretary Duke's justifcation for the rescission was succinct: “Taking into consideration” the Fifth Circuit's con- clusion that DAPA was unlawful because it conferred bene- fts in violation of the INA, and the Attorney General's con- clusion that DACA was unlawful for the same reason, she concluded—without elaboration—that the “DACA program should be terminated.” App. to Pet. for Cert. 117a. 4 Respondents maintain that this explanation is defcient for three reasons. Their frst and second arguments work in tandem, claiming that the Duke Memorandum does not ade- part). But he cites no authority limiting this basic principle—which the Court regularly articulates in the context of rulemakings—to adjudica- tions. The Government does not even raise this unheralded argument. 4 The Government contends that Acting Secretary Duke also focused on litigation risk. Although the background section of her memo references a letter from the Texas Attorney General threatening to challenge DACA, the memo never asserts that the rescission was intended to avert litiga- tion. And, given the Attorney General's conclusion that the policy was unlawful—and thus presumably could not be maintained or defended in its current form—it is diffcult to see how the risk of litigation carried any independent weight. Cite as: 591 U. S. 1 (2020) 25 Opinion of the Court quately explain the conclusion that DACA is unlawful, and that this conclusion is, in any event, wrong. While those arguments carried the day in the lower courts, in our view they overlook an important constraint on Acting Secretary Duke's decisionmaking authority—she was bound by the At- torney General's legal determination. The same statutory provision that establishes the Secre- tary of Homeland Security's authority to administer and en- force immigration laws limits that authority, specifying that, with respect to “all questions of law,” the determinations of the Attorney General “shall be controlling.” 8 U. S. C. § 1103(a)(1). Respondents are aware of this constraint. In- deed they emphasized the point in the reviewability sections of their briefs. But in their merits arguments, respondents never addressed whether or how this unique statutory provi- sion might affect our review. They did not discuss whether Duke was required to explain a legal conclusion that was not hers to make. Nor did they discuss whether the current suits challenging Duke's rescission decision, which everyone agrees was within her legal authority under the INA, are proper vehi- cles for attacking the Attorney General's legal conclusion. Because of these gaps in respondents' briefng, we do not evaluate the claims challenging the explanation and correct- ness of the illegality conclusion. Instead we focus our atten- tion on respondents' third argument—that Acting Secretary Duke “failed to consider . . . important aspect[s] of the prob- lem” before her. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983). Whether DACA is illegal is, of course, a legal determina- tion, and therefore a question for the Attorney General. But deciding how best to address a fnding of illegality mov- ing forward can involve important policy choices, especially when the fnding concerns a program with the breadth of DACA. Those policy choices are for DHS. Page Proof Pending Publication Page Proof Pending Publication 26 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court Acting Secretary Duke plainly exercised such discretion- ary authority in winding down the program. See App. to Pet. for Cert. 117a–118a (listing the Acting Secretary's deci- sions on eight transition issues). Among other things, she specifed that those DACA recipients whose benefts were set to expire within six months were eligible for two-year renewals. Ibid. But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General's legal reasoning left off. The Attorney General concluded that “the DACA policy has the same legal . . . defects that the courts recognized as to DAPA.” App. 878. So, to un- derstand those defects, we look to the Fifth Circuit, the high- est court to offer a reasoned opinion on the legality of DAPA. That court described the “core” issue before it as the “Secre- tary's decision” to grant “eligibility for benefts”—including work authorization, Social Security, and Medicare—to unau- thorized aliens on “a class-wide basis.” Texas, 809 F. 3d, at 170; see id., at 148, 184. The Fifth Circuit's focus on these benefts was central to every stage of its analysis. See id., at 155 (standing); id., at 163 (zone of interest); id., at 164 (applicability of § 1252(g)); id., at 166 (reviewability); id., at 176–177 (notice and comment); id., at 184 (substantive APA). And the court ultimately held that DAPA was “manifestly contrary to the INA” precisely because it “would make 4.3 million otherwise removable aliens” eligible for work au- thorization and public benefts. Id., at 181–182 (internal quotation marks omitted). 5 5 As the Fifth Circuit noted, DAPA recipients were eligible for Social Security and Medicare benefts because they had been designated “law- fully present.” Texas, 809 F. 3d, at 168. Lawful presence is a statutory prerequisite for receipt of certain benefts. See id., at 148 (citing 8 U. S. C. § 1611). It is not the same as forbearance nor does it fow inexora- bly from forbearance. Thus, while deferred action recipients have been designated lawfully present for purposes of Social Security and Medicare eligibility, see 8 CFR § 1.3; 42 CFR § 417.422(h), agencies can also exclude them from this designation, see 45 CFR § 152.2(8) (2019) (specifying that Cite as: 591 U. S. 1 (2020) 27 Opinion of the Court But there is more to DAPA (and DACA) than such bene- fts. The defning feature of deferred action is the decision to defer removal (and to notify the affected alien of that deci- sion). See App. to Pet. for Cert. 99a. And the Fifth Circuit was careful to distinguish that forbearance component from eligibility for benefts. As it explained, the “challenged por- tion of DAPA's deferred-action program” was the decision to make DAPA recipients eligible for benefts. See Texas, 809 F. 3d, at 168, and n. 108. The other “[p]art of DAPA,” the court noted, “involve[d] the Secretary's decision—at least temporarily—not to enforce the immigration laws as to a class of what he deem[ed] to be low-priority illegal aliens.” Id., at 166. Borrowing from this Court's prior description of deferred action, the Fifth Circuit observed that “the states do not challenge the Secretary's decision to `decline to institute proceedings, terminate proceedings, or decline to execute a fnal order of deportation.' ” Id., at 168 (quoting Reno, 525 U. S., at 484). And the Fifth Circuit underscored that nothing in its decision or the preliminary injunction “requires the Secretary to remove any alien or to alter” the Secretary's class-based “enforcement priorities.” Texas, 809 F. 3d, at 166, 169. In other words, the Secretary's for- bearance authority was unimpaired. Acting Secretary Duke recognized that the Fifth Circuit's holding addressed the benefts associated with DAPA. In her memorandum she explained that the Fifth Circuit con- cluded that DAPA “conficted with the discretion authorized by Congress” because the INA “ `fatly does not permit the reclassifcation of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefts, including work authorization.' ” App. to Pet. for Cert. 114a (quoting Texas, 809 F. 3d, at 184). Duke did not characterize the opinion as one about forbearance. DACA recipients are not considered lawfully present for purposes of cov- erage under the Affordable Care Act). Page Proof Pending Publication 28 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court In short, the Attorney General neither addressed the for- bearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefts eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” 116 Stat. 2178, 6 U. S. C. § 202(5). But Duke's memo offers no reason for terminating forbearance. She instead treated the Attorney General's conclusion re- garding the illegality of benefts as suffcient to rescind both benefts and forbearance, without explanation. That reasoning repeated the error we identifed in one of our leading modern administrative law cases, Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. There, the National Highway Traffc Safety Administration (NHTSA) promulgated a requirement that motor vehicles produced after 1982 be equipped with one of two passive restraints: airbags or automatic seatbelts. 463 U. S., at 37–38, 46. Four years later, before the requirement went into effect, NHTSA concluded that automatic seatbelts, the restraint of choice for most manufacturers, would not provide effective protection. Based on that premise, NHTSA rescinded the passive restraint requirement in full. Id., at 38. We concluded that the total rescission was arbitrary and capricious. As we explained, NHTSA's justifcation sup- ported only “disallow[ing] compliance by means of” auto- matic seatbelts. Id., at 47. It did “not cast doubt” on the “effcacy of airbag technology” or upon “the need for a passive restraint standard.” Ibid. Given NHTSA's prior judgment that “airbags are an effective and cost- benefcial lifesaving technology,” we held that “the manda- tory passive restraint rule [could] not be abandoned without any consideration whatsoever of an airbags-only require- ment.” Id., at 51. Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 29 Opinion of the Court While the factual setting is different here, the error is the same. Even if it is illegal for DHS to extend work authori- zation and other benefts to DACA recipients, that conclusion supported only “disallow[ing]” benefts. Id., at 47. It did “not cast doubt” on the legality of forbearance or upon DHS's original reasons for extending forbearance to childhood ar- rivals. Ibid. Thus, given DHS's earlier judgment that for- bearance is “especially justifed” for “productive young peo- ple” who were brought here as children and “know only this country as home,” App. to Pet. for Cert. 98a–99a, the DACA Memorandum could not be rescinded in full “without any consideration whatsoever” of a forbearance-only policy, State Farm, 463 U. S., at 51. 6 The Government acknowledges that “[d]eferred action coupled with the associated benefts are the two legs upon which the DACA policy stands.” Reply Brief 21. It in- sists, however, that “DHS was not required to consider whether DACA's illegality could be addressed by separat- ing” the two. Ibid. According to the Government, “It was not arbitrary and capricious for DHS to view deferred action and its collateral benefts as importantly linked.” Ibid. Perhaps. But that response misses the point. The fact that there may be a valid reason not to separate deferred action from benefts does not establish that DHS considered that option or that such consideration was unnecessary. 6 The three-page memorandum that established DACA is devoted en- tirely to forbearance, save for one sentence directing USCIS to “determine whether [DACA recipients] qualify for work authorization.” App. to Pet. for Cert. 101a. The benefts associated with DACA fow from a separate regulation. See 8 CFR § 1.3(a)(4)(vi); see also 42 CFR § 417.422(h) (cross- referencing 8 CFR § 1.3). Thus, DHS could have addressed the Attorney General's determination that such benefts were impermissible under the INA by amending 8 CFR § 1.3 to exclude DACA recipients from those benefts without rescinding the DACA Memorandum and the forbearance policy it established. But Duke's rescission memo shows no cognizance of this possibility. Page Proof Pending Publication 30 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court The lead dissent acknowledges that forbearance and bene- fts are legally distinct and can be decoupled. Post, at 59, n. 14 (opinion of Thomas, J). It contends, however, that we should not “dissect” agency action “piece by piece.” Post, at 58. The dissent instead rests on the Attorney General's legal determination—which considered only benefts—“to supply the `reasoned analysis' ” to support rescission of both benefts and forbearance. Post, at 60 (quoting State Farm, 463 U. S., at 42). But State Farm teaches that when an agency rescinds a prior policy its reasoned analysis must con- sider the “alternative[s]” that are “within the ambit of the existing [policy].” Id., at 51. Here forbearance was not simply “within the ambit of the existing [policy],” it was the centerpiece of the policy: DACA, after all, stands for “Deferred Action for Childhood Arrivals.” App. to Pet. for Cert. 111a (emphasis added). But the rescission memo- randum contains no discussion of forbearance or the option of retaining forbearance without benefts. Duke “entirely failed to consider [that] important aspect of the problem.” State Farm, 463 U. S., at 43. That omission alone renders Acting Secretary Duke's deci- sion arbitrary and capricious. But it is not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996). When an agency changes course, as DHS did here, it must “be cogni- zant that longstanding policies may have `engendered serious reliance interests that must be taken into account.' ” En- cino Motorcars, LLC v. Navarro, 579 U. S. 211, 222 (2016) (quoting Fox Television, 556 U. S., at 515). “It would be ar- bitrary or capricious to ignore such matters.” Id., at 515. Yet that is what the Duke Memorandum did. For its part, the Government does not contend that Duke considered potential reliance interests; it counters that she did not need to. In the Government's view, shared by the lead dissent, DACA recipients have no “legally cognizable Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 31 Opinion of the Court reliance interests” because the DACA Memorandum stated that the program “conferred no substantive rights” and pro- vided benefts only in two-year increments. Reply Brief 16– 17; App. to Pet. for Cert. 125a. See also post, at 61 (opinion of Thomas, J). But neither the Government nor the lead dissent cites any legal authority establishing that such fea- tures automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that consideration must be undertaken by the agency in the frst instance, subject to normal APA review. There was no such consideration in the Duke Memorandum. Respondents and their amici assert that there was much for DHS to consider. They stress that, since 2012, DACA recipients have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even mar- ried and had children, all in reliance” on the DACA program. Brief for Respondent Regents of Univ. of California et al. in No. 18–587, p. 41 (Brief for Regents). The consequences of the rescission, respondents emphasize, would “radiate out- ward” to DACA recipients' families, including their 200,000 U. S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. See id., at 41–42; Brief for Respondent State of New York et al. in No. 18–589, p. 42 (Brief for New York). See also Brief for 143 Businesses as Amici Curiae 17 (estimating that hiring and training re- placements would cost employers $6.3 billion). In addition, excluding DACA recipients from the lawful labor force may, they tell us, result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Brief for Regents 6. Meanwhile, States and local governments could lose $1.25 billion in tax revenue each year. Ibid. These are certainly noteworthy concerns, but they are not necessarily dispositive. To the Government and lead dis- Page Proof Pending Publication 32 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court sent's point, DHS could respond that reliance on forbearance and benefts was unjustifed in light of the express limita- tions in the DACA Memorandum. Or it might conclude that reliance interests in benefts that it views as unlawful are entitled to no or diminished weight. And, even if DHS ulti- mately concludes that the reliance interests rank as serious, they are but one factor to consider. DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that diffcult decision was the agency's job, but the agency failed to do it. DHS has considerable fexibility in carrying out its respon- sibility. The wind-down here is a good example of the kind of options available. Acting Secretary Duke authorized DHS to process two-year renewals for those DACA recipi- ents whose benefts were set to expire within six months. But Duke's consideration was solely for the purpose of assist- ing the agency in dealing with “administrative complexities.” App. to Pet. for Cert. 116a–118a. She should have consid- ered whether she had similar fexibility in addressing any reliance interests of DACA recipients. The lead dissent contends that accommodating such interests would be “another exercise of unlawful power,” post, at 60 (opinion of Thomas, J.), but the Government does not make that argu- ment and DHS has already extended benefts for purposes other than reliance, following consultation with the Offce of the Attorney General. App. to Pet. for Cert. 116a. Had Duke considered reliance interests, she might, for ex- ample, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. Al- ternatively, Duke might have considered more accommodat- ing termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or fnish a medical treatment regimen. Or she might have instructed immigration offcials to give salient weight to any Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 33 Opinion of Roberts, C. J. reliance interests engendered by DACA when exercising in- dividualized enforcement discretion. To be clear, DHS was not required to do any of this or to “consider all policy alternatives in reaching [its] decision.” State Farm, 463 U. S., at 51. Agencies are not compelled to explore “every alternative device and thought conceivable by the mind of man.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 551 (1978). But, because DHS was “not writing on a blank slate,” post, at 59, n. 14 (opinion of Thomas, J.), it was re- quired to assess whether there were reliance interests, de- termine whether they were signifcant, and weigh any such interests against competing policy concerns. The lead dissent sees all the foregoing differently. In its view, DACA is illegal, so any actions under DACA are them- selves illegal. Such actions, it argues, must cease immedi- ately and the APA should not be construed to impede that result. See post, at 56–60 (opinion of Thomas, J.). The dissent is correct that DACA was rescinded because of the Attorney General's illegality determination. See post, at 57. But nothing about that determination fore- closed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Sec- retary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA. IV Lastly, we turn to respondents' claim that the rescission violates the equal protection guarantee of the Fifth Amendment. The parties dispute the proper framing of this claim. The Government contends that the allegation that the Executive, motivated by animus, ended a program that disproportion- ately benefts certain ethnic groups is a selective enforce- ment claim. Such a claim, the Government asserts, is barred by our decision in Reno v. American-Arab Anti- Page Proof Pending Publication Page Proof Pending Publication 34 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Roberts, C. J. Discrimination Committee . See 525 U. S., at 488 (holding that “an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation”). Respondents counter that their claim falls outside the scope of that precedent because they are not challenging individual enforcement proceedings. We need not resolve this debate because, even if the claim is cogniza- ble, the allegations here are insuffcient. To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Met- ropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.” Id., at 266–268. Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mex- ico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55. None of these points, either singly or in concert, estab- lishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. See B. Baker, DHS, Offce of Immigration Statis- tics, Population Estimates, Illegal Alien Population Residing in the United States: January 2015, Table 2 (Dec. 2018), https://www.dhs.gov/sites/default/files/publications/18_1214_ PLCY_pops-est-report.pdf. Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds. Second, there is nothing irregular about the history lead- ing up to the September 2017 rescission. The lower courts concluded that “DACA received reaffrmation by [DHS] as Cite as: 591 U. S. 1 (2020) 35 Opinion of the Court recently as three months before the rescission,” 908 F. 3d, at 519 (quoting 298 F. Supp. 3d, at 1315), referring to the June 2017 DAPA rescission memo, which stated that DACA would “remain in effect,” App. 870. But this reasoning confuses abstention with reaffrmation. The DAPA memo did not ad- dress the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA's legal defects, DHS's decision to reevaluate DACA was not a “strange about-face.” 908 F. 3d, at 519. It was a natural response to a newly identifed problem. Finally, the cited statements are unilluminating. The rel- evant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowl- edged, respondents did not “identif[y] statements by [either] that would give rise to an inference of discriminatory mo- tive.” 291 F. Supp. 3d, at 278. Instead, respondents con- tend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as in- terpreted by respondents, these statements—remote in time and made in unrelated contexts—do not qualify as “contem- porary statements” probative of the decision at issue. Ar- lington Heights, 429 U. S., at 268. Thus, like respondents' other points, the statements fail to raise a plausible inference that the rescission was motivated by animus. * * * We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “is none of our concern.” Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural re- quirement that it provide a reasoned explanation for its ac- tion. Here the agency failed to consider the conspicuous is- sues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a Page Proof Pending Publication 36 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Sotomayor, J. reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew. The judgment in NAACP, No. 18–588, is affrmed. 7 The judgment in Regents, No. 18–587, is vacated in part and re- versed in part. And in Batalla Vidal, No. 18–589, the Feb- ruary 13, 2018 order granting respondents' motion for a pre- liminary injunction is vacated, the November 9, 2017 order partially denying the Government's motion to dismiss is af- frmed in part, and the March 29, 2018 order partially deny- ing the balance of the Government's motion to dismiss is reversed in part. All three cases are remanded for further proceedings consistent with this opinion. It is so ordered. Justice Sotomayor, concurring in part, concurring in the judgment in part, and dissenting in part. The majority rightly holds that the Department of Home- land Security (DHS) violated the Administrative Procedure Act in rescinding the Deferred Action for Childhood Arrivals (DACA) program. But the Court forecloses any challenge to the rescission under the Equal Protection Clause. I be- lieve that determination is unwarranted on the existing rec- ord and premature at this stage of the litigation. I would instead permit respondents to develop their equal protection claims on remand. Respondents' equal protection challenges come to us in a preliminary posture. All that respondents needed to do at this stage of the litigation was state suffcient facts that would “allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009). The three courts to evalu- ate respondents' pleadings below held that they cleared this modest threshold. 908 F. 3d 476, 518–520 (CA9 2018) (af- 7 Our affrmance of the NAACP order vacating the rescission makes it unnecessary to examine the propriety of the nationwide scope of the injunctions issued by the District Courts in Regents and Batalla Vidal. Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 37 Opinion of Sotomayor, J. frming the District Court's denial of the Government's mo- tion to dismiss); see also Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 274 (EDNY 2018). I too would permit respondents' claims to proceed on re- mand. The complaints each set forth particularized facts that plausibly allege discriminatory animus. The plurality disagrees, reasoning that “[n]one of these points, either sin- gly or in concert, establishes a plausible equal protection claim.” Ante, at 34. But it reaches that conclusion by dis- counting some allegations altogether and by narrowly view- ing the rest. First, the plurality dismisses the statements that Presi- dent Trump made both before and after he assumed offce. The Batalla Vidal complaints catalog then-candidate Trump's declarations that Mexican immigrants are “people that have lots of problems,” “the bad ones,” and “criminals, drug dealers, [and] rapists.” 291 F. Supp. 3d, at 276 (inter- nal quotation marks omitted). The Regents complaints ad- ditionally quote President Trump's 2017 statement compar- ing undocumented immigrants to “animals” responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and traffcking, [and] MS 13.” 298 F. Supp. 3d 1304, 1314 (ND Cal. 2018) (internal quotation marks omitted). The plurality brushes these aside as “unilluminating,” “remote in time,” and having been “made in unrelated contexts.” Ante, at 35. But “nothing in our precedent supports [the] blinkered approach” of disregarding any of the campaign statements as remote in time from later-enacted policies. Trump v. Hawaii, 585 U. S. 667, 738, n. 3 (2018) (Sotomayor , J., dis- senting). Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexico—a keystone of President Trump's campaign and a policy prior- ity of his administration—and, according to respondents, were an animating force behind the rescission of DACA. Cf. ibid. (noting that Presidential Proclamation No. 9645, 82 Fed. Page Proof Pending Publication 38 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Sotomayor, J. Reg. 45161 (2017), which barred entry of individuals from several Muslim-majority countries, was an outgrowth of the President's campaign statements about Muslims). Taken to- gether, “the words of the President” help to “create the strong perception” that the rescission decision was “contami- nated by impermissible discriminatory animus.” 585 U. S., at 739–740 (opinion of Sotomayor, J.). This perception pro- vides respondents with grounds to litigate their equal pro- tection claims further. Next, the plurality minimizes the disproportionate impact of the rescission decision on Latinos after considering this point in isolation. Ante, at 34 (“Were this fact suffcient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds”). But the impact of the policy decision must be viewed in the context of the President's public statements on and off the campaign trail. At the motion-to-dismiss stage, I would not so readily dismiss the allegation that an executive deci- sion disproportionately harms the same racial group that the President branded as less desirable mere months earlier. Finally, the plurality fnds nothing untoward in the “spe- cifc sequence of events leading up to the challenged deci- sion.” Arlington Heights v. Metropolitan Housing Devel- opment Corp., 429 U. S. 252, 267 (1977). I disagree. As late as June 2017, DHS insisted it remained committed to DACA, even while rescinding a related program, the Deferred Ac- tion for Parents of Americans and Lawful Permanent Resi- dents. App. 718–720. But a mere three months later, DHS terminated DACA without, as the plurality acknowledges, considering important aspects of the termination. The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. Accordingly, it raises the possibility of a “signifcant mismatch between the decision . . . made and the rationale . . . provided.” Department of Commerce v. Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 39 Opinion of Thomas, J. New York, 588 U. S. –––, ––– (2019). Only by bypassing con- text does the plurality conclude otherwise. * * * The facts in respondents' complaints create more than a “sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U. S., at 678. Whether they ultimately amount to actionable discrimination should be determined only after factual development on remand. Because the Court prema- turely disposes of respondents' equal protection claims by overlooking the strength of their complaints, I join all but Part IV of the opinion and do not concur in the correspond- ing part of the judgment. Justice Thomas, with whom Justice Alito and Justice Gorsuch join, concurring in the judgment in part and dis- senting in part. Between 2001 and 2011, Congress considered over two dozen bills that would have granted lawful status to millions of aliens who were illegally brought to this country as chil- dren. Each of those legislative efforts failed. In the wake of this impasse, the Department of Homeland Security (DHS) under President Barack Obama took matters into its own hands. Without any purported delegation of authority from Congress and without undertaking a rulemaking, DHS unilaterally created a program known as Deferred Action for Childhood Arrivals (DACA). The three-page DACA memorandum made it possible for approximately 1.7 million illegal aliens to qualify for temporary lawful presence and certain federal and state benefts. When President Donald Trump took offce in 2017, his Acting Secretary of Home- land Security, acting through yet another memorandum, rescinded the DACA memorandum. To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum. Page Proof Pending Publication Page Proof Pending Publication 40 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Thomas, J. Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administra- tive law. On the contrary, this is anything but a standard administrative law case. DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the author- ity to scrutinize an agency's policy reasons for rescinding an unlawful program under the arbitrary and capricious micro- scope. The decision to countermand an unlawful agency ac- tion is clearly reasonable. So long as the agency's determi- nation of illegality is sound, our review should be at an end. Today's decision must be recognized for what it is: an ef- fort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS' initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political bat- tles to be fought in this Court rather than where they right- fully belong—the political branches. Such timidity forsakes the Court's duty to apply the law according to neutral princi- ples, and the ripple effects of the majority's error will be felt throughout our system of self-government. Perhaps even more unfortunately, the majority's holding creates perverse incentives, particularly for outgoing admin- istrations. Under the auspices of today's decision, adminis- trations can bind their successors by unlawfully adopting sig- nifcant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectu- ate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor Cite as: 591 U. S. 1 (2020) 41 Opinion of Thomas, J. provides suffcient policy justifcations to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to con- tinue administering unlawful programs that it inherited from a previous administration. I respectfully dissent in part. 1 I A In 2012, after more than two dozen attempts by Congress to grant lawful status to aliens who were brought to this country as children, 2 the then-Secretary of Homeland Secu- rity Janet Napolitano announced, by memorandum, a new “prosecutorial discretion” policy known as DACA. App. to Pet. for Cert. in No. 18–587, p. 97a. The memorandum di- rected immigration enforcement offcers not to remove “cer- tain young people who were brought to this country as chil- 1 I concur in the judgment insofar as the majority rejects respondents' equal protection claim. 2 See Immigrant Children's Educational Advancement and Dropout Pre- vention Act of 2001, H. R. 1582, 107th Cong., 1st Sess.; Student Adjustment Act of 2001, H. R. 1918, 107th Cong., 1st Sess.; DREAM Act, S. 1291, 107th Cong., 1st Sess. (2001); DREAM Act, S. 1545, 108th Cong., 1st Sess. (2003); Student Adjustment Act of 2003, H. R. 1684, 108th Cong., 1st Sess.; DREAM Act, S. 2863, 108th Cong., 2d Sess., Tit. XVIII (2003); DREAM Act of 2005, S. 2075, 109th Cong., 1st Sess.; Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong., 2d Sess., Tit. VI, Subtitle C; American Dream Act, H. R. 5131, 109th Cong., 2d Sess. (2006); DREAM Act of 2007, S. 774, 110th Cong., 1st Sess.; DREAM Act of 2007, S. 2205, 110th Cong., 1st Sess.; STRIVE Act of 2007, H. R. 1645, 110th Cong., 1st Sess., Tit. VI, Subtitle B; Comprehensive Immigration Reform Act of 2007, S. 1348, 110th Cong., 1st Sess., Tit. VI, Subtitle C; DREAM Act of 2009, S. 729, 111th Cong., 1st Sess.; American Dream Act, H. R. 1751, 111th Cong., 1st Sess.; Comprehensive Immigration Reform Act of 2010, S. 3932, 111th Cong., 2d Sess., Tit. V , Subtitle D; DREAM Act of 2010, S. 3827, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3962, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3963, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3992, 111th Cong., 2d Sess.; DREAM Act of 2010, H. R. 6497, 111th Cong., 2d Sess.; DREAM Act of 2011, S. 952, 112th Cong., 1st Sess. Page Proof Pending Publication 42 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Thomas, J. dren” that met delineated criteria. Id., at 97a–98a. In the Secretary's view, the program was consistent with “the framework of the existing law.” Id., at 101a. DACA granted a renewable 2-year period of “deferred ac- tion” that made approximately 1.7 million otherwise remov- able aliens eligible to remain in this country temporarily. 3 By granting deferred action, the memorandum also made recipients eligible for certain state and federal benefts, including Medicare and Social Security. See 8 U. S. C. §§ 1611(b)(2)–(4); 8 CFR § 1.3(a)(4)(vi) (2020); 45 CFR § 152.2(4)(vi) (2019). In addition, deferred action enabled the recipients to seek work authorization. 8 U. S. C. § 1324a(h)(3)(B); 8 CFR § 274a.12(c)(14). Despite these changes, the memorandum contradictorily claimed that it “confer[red] no substantive right [or] immigration status,” because “[o]nly the Congress, acting through its legislative authority, can confer these rights.” App. to Pet. for Cert. in No. 18–587, at 101a. In 2014, then-Secretary of Homeland Security Jeh Johnson broadened the deferred-action program in yet another brief memorandum. This 2014 memorandum expanded DACA el- igibility by extending the deferred-action period to three years and by relaxing other criteria. It also implemented a related program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA allowed unlawfully present parents to obtain deferred action derivatively through their children who were either citizens or lawful permanent residents. Approximately 4.3 million aliens qualifed for DAPA and, as with DACA, these individuals would have become eligible for certain federal and state benefts upon the approval of their DAPA applica- tions. See Texas v. United States, 809 F. 3d 134, 181 (CA5 3 See J. Passel & M. Lopez, Pew Research Center, Up to 1.7 Million Unauthorized Immigrant Youth May Benefit From New Deportation Rules (Aug. 14, 2012). Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 43 Opinion of Thomas, J. 2015). Nevertheless, the 2014 memorandum repeated the incongruous assertion that these programs “d[id] not confer any form of legal status in this country” and added that de- ferred action “may be terminated at any time at the agency's discretion.” App. to Pet. for Cert. in No. 18–587, at 104a. B Twenty-six States fled suit to enjoin the implementation of these new programs, DAPA and “expanded DACA,” main- taining that they violated the Constitution, the Administra- tive Procedure Act (APA), and the Immigration and Natural- ization Act (INA). The States contended that, because the 2014 memorandum allowed aliens to receive deferred action and other benefts, it amounted to a legislative rule that had to comply with the APA's notice and comment procedures. The States also argued that DHS' decision to recategorize an entire class of aliens from “unlawfully present” to “lawfully present” exceeded its statutory authority under the federal immigration laws. According to the States, these defects rendered the 2014 memorandum arbitrary, capricious, or oth- erwise not in accordance with law. The District Court preliminarily enjoined DAPA and ex- panded DACA. The Fifth Circuit affrmed, rejecting DHS' claim that the programs were an exercise of prosecutorial discretion. Texas, 809 F. 3d, at 167, 188. The court con- cluded that the States were likely to succeed on their claim that the 2014 memorandum was a legislative rule that had to be adopted through notice and comment rulemaking. Id., at 171–178. The court further concluded that the 2014 mem- orandum was “substantively contrary to law” because the INA did not grant DHS the statutory authority to imple- ment either program. Id., at 170, 178–186. This Court affrmed the Fifth Circuit's judgment by an equally divided vote. United States v. Texas, 579 U. S. 547 (2016) (per curiam ). Page Proof Pending Publication 44 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Thomas, J. C The 2014 memorandum was rescinded on June 15, 2017, before taking effect. Shortly after that rescission, several of the plaintiff States sent a letter to then-Attorney General Jefferson Sessions III. They contended that the 2012 DACA memorandum was also legally defective because, “just like DAPA, DACA unilaterally confers eligibility for . . . lawful presence without any statutory authorization from Congress.” App. 873. The States wrote that they would amend their complaint to challenge DACA if the administra- tion did not rescind the 2012 memorandum creating DACA by September 5, 2017. On September 4, then-Attorney General Sessions wrote to then-Acting Secretary of Homeland Security Elaine Duke, advising her to rescind DACA. Sessions stated that, in his legal opinion, DACA took effect “through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed leg- islation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Id., at 877. The letter also stated that DACA was infected with the “same legal . . . defects that the courts recognized as to DAPA,” id., at 878, and thus DACA would likely be enjoined as well. Then-Acting Secretary Duke rescinded DACA the next day, also through a memorandum. Her memorandum began by noting that DACA “purported to use deferred action . . . to confer certain benefts to illegal aliens that Congress had not otherwise acted to provide by law.” App. to Pet. for Cert. in No. 18–587, at 112a. It described the history of the Fifth Circuit litigation, noting that the court had concluded that DAPA “conficted with the discretion authorized by Congress” because “the [INA] fatly does not permit the re- classifcation of millions of illegal aliens as lawfully present.” Id., at 114a (internal quotation marks omitted). Finally, the Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 45 Opinion of Thomas, J. memorandum accepted then-Attorney General Sessions' legal determination that DACA was unlawful for the same reasons as DAPA. See § 1103(a)(1). In light of the legal conclusions reached by the Fifth Circuit and the Attorney General, then-Acting Secretary Duke set forth the proce- dures for winding down DACA. These three cases soon followed. In each, respondents claimed, among other things, that DACA's rescission was ar- bitrary and capricious under the APA. Two District Courts granted a preliminary nationwide injunction, while the third vacated the rescission. II “ `[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.' ” Arlington v. FCC, 569 U. S. 290, 317 (2013) (Roberts, C. J., dissenting) (quot- ing Louisiana Pub. Serv. Comm'n v. FCC, 476 U. S. 355, 374 (1986)). When an agency exercises power beyond the bounds of its authority, it acts unlawfully. See, e. g., SAS Institute Inc. v. Iancu, 584 U. S. 357, 368, n. (2018). The 2012 memorandum creating DACA provides a poignant illus- tration of ultra vires agency action. DACA alters how the immigration laws apply to a certain class of aliens. “DACA [recipients] primarily entered the country either by overstaying a visa or by entering without inspection, and the INA instructs that aliens in both classes are removable.” Texas v. United States, 328 F. Supp. 3d 662, 713 (SD Tex. 2018) (footnote omitted). But DACA granted its recipients deferred action, i. e., a decision to “decline to institute [removal] proceedings, terminate [removal] pro- ceedings, or decline to execute a fnal order of [removal].” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 484 (1999) (internal quotation marks omitted). Under other regulations, recipients of deferred action are deemed lawfully present for purposes of certain federal ben- efts. See supra, at 42. Thus, DACA in effect created a new exception to the statutory provisions governing removability Page Proof Pending Publication 46 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Thomas, J. and, in the process, conferred lawful presence on an entire class of aliens. To lawfully implement such changes, DHS needed a grant of authority from Congress to either reclassify removable DACA recipients as lawfully present, or to exempt the entire class of aliens covered by DACA from statutory removal pro- cedures. No party disputes that the immigration statutes lack an express delegation to accomplish either result. And, an examination of the highly reticulated immigration regime makes clear that DHS has no implicit discretion to create new classes of lawful presence or to grant relief from re- moval out of whole cloth. Accordingly, DACA is substan- tively unlawful. This conclusion should begin and end our review. The de- cision to rescind an unlawful agency action is per se lawful. No additional policy justifcations or considerations are nec- essary. And, the majority's contrary holding—that an agency is not only permitted, but required, to continue an ultra vires action—has no basis in law. A Congress has not authorized DHS to reclassify an entire class of removable aliens as lawfully present or to categori- cally exempt aliens from statutory removal provisions. 1 I begin with lawful presence. As just stated, nothing in the federal immigration laws expressly delegates to DHS the unfettered discretion to create new categories of lawfully present aliens. And, there is no basis for concluding that Congress implicitly delegated to DHS the power to reclassify categories of aliens as lawfully present. The immigration statutes provide numerous ways to obtain lawful presence, both temporary and permanent. The highly detailed nature of these provisions indicates that Congress has exhaustively Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 47 Opinion of Thomas, J. provided for all of the ways that it thought lawful presence should be obtainable, leaving no discretion to DHS to add new pathways. For example, federal immigration laws provide over 60 temporary nonimmigrant visa options, including visas for ambassadors, full-time students and their spouses and chil- dren, those engaged to marry a United States citizen within 90 days of arrival, athletes and performers, and aliens with specialized knowledge related to their employers. See §§ 1101(a)(15)(A)–(V), 1184; 8 CFR § 214.1; see also Congres- sional Research Service, J. Wilson, Nonimmigrant and Immi- grant Visa Categories: Data Brief 1–6 (2019) (Table 1). In addition, the statutes permit the Attorney General to grant temporary “parole” into the United States “for urgent hu- manitarian reasons or [a] signifcant public beneft,” 8 U. S. C. § 1182(d)(5)(A); provide for temporary protected status when the Attorney General fnds that removal to a country with an ongoing armed confict “would pose a serious threat to [an alien's] personal safety,” § 1254a(b)(1)(A); and allow the Secretary of Homeland Security (in consultation with the Secretary of State) to waive visa requirements for certain aliens for up to 90 days, §§ 1187(a)–(d). The immigration laws are equally complex and detailed when it comes to obtaining lawful permanent residence. Congress has expressly specifed numerous avenues for ob- taining an immigrant visa, which aliens may then use to be- come lawful permanent residents. §§ 1201, 1255(a). Among other categories, immigrant visas are available to specifed family-sponsored aliens, aliens with advanced degrees or exceptional abilities, certain types of skilled and unskilled workers, “special immigrants,” and those entering the country to “engag[e] in a new commercial enterprise.” §§ 1153(a)–(b), 1154; see also Congressional Research Serv- ice, Nonimmigrant and Immigrant Visa Categories, at 6–7 (Table 2). Refugees and asylees also may receive lawful Page Proof Pending Publication 48 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Thomas, J. permanent residence under certain conditions, § 1159; 8 CFR §§ 209.1, 209.2. 4 As with temporary lawful presence, each avenue to lawful permanent residence status has its own set of rules and exceptions. 5 As the Fifth Circuit held in the DAPA litigation, a conclu- sion with which then-Attorney General Sessions agreed, “specifc and detailed provisions [of] the INA expressly and carefully provid[e] legal designations allowing defined classes of aliens to be lawfully present.” Texas, 809 F. 3d, at 179. In light of this elaborate statutory scheme, the lack of any similar provision for DACA recipients convincingly establishes that Congress left DHS with no discretion to cre- ate an additional class of aliens eligible for lawful presence. Congress knows well how to provide broad discretion, and it has provided open-ended delegations of authority in statutes too numerous to name. But when it comes to lawful pres- ence, Congress did something strikingly different. Instead of enacting a statute with “broad general directives” and leaving it to the agency to fll in the lion's share of the details, Mistretta v. United States, 488 U. S. 361, 372 (1989), Con- gress put in place intricate specifcations governing eligibil- ity for lawful presence. This comprehensive scheme indi- cates that DHS has no discretion to supplement or amend the statutory provisions in any manner, least of all by memo- randum. See FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 125 (2000) (An agency “may not exercise its authority in a manner that is inconsistent with the adminis- trative structure that Congress enacted” (internal quotation 4 The immigration statutes also provide for conditional lawful permanent residence status. See § 1186a(b)(1)(A)(i) (two years for spouses to demon- strate that the marriage “was [not] entered into for the purpose of procur- ing an alien's admission as an immigrant”); § 1186b (qualifying business entrepreneurs). 5 For instance, Congress has carved out rules for aliens who served in the Armed Forces, §§ 1438–1440, and alien spouses who have been subject to domestic abuse, §§ 1186a(c)(4)(C)–(D). Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 49 Opinion of Thomas, J. marks omitted)); see also ETSI Pipeline Project v. Missouri, 484 U. S. 495, 509–510 (1988). 2 The relief that Congress has extended to removable aliens likewise confrms that DACA exceeds DHS' delegated au- thority. Through deferred action, DACA grants temporary relief to removable aliens on a programmatic scale. See Texas, 328 F. Supp. 3d, at 714. But as with lawful presence, Congress did not expressly grant DHS the authority to cre- ate categorical exceptions to the statute's removal require- ments. And again, as with lawful presence, the intricate level of detail in the federal immigration laws regarding re- lief from removal indicates that DHS has no discretionary authority to supplement that relief with an entirely new pro- grammatic exemption. At the outset, Congress clearly knows how to provide for classwide deferred action when it wishes to do so. On multi- ple occasions, Congress has used express language to make certain classes of individuals eligible for deferred action. See 8 U. S. C. §§ 1154(a)(1)(D)(i)(II), (IV) (certain individuals covered under the Violence Against Women Act are “eligible for deferred action”); Victims of Traffcking and Violence Protection Act of 2000, 114 Stat. 1522 (“ `Any individual de- scribed in subclause (I) is eligible for deferred action' ”); Uniting and Strengthening America by Providing Appro- priate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, § 423(b), 115 Stat. 361 (“Such spouse, child, son, or daughter may be eligible for deferred action”); National Defense Authorization Act for Fiscal Year 2004, §§ 1703(c)(1)(A), (2), 117 Stat. 1694–1695 (“Such spouse or child shall be eligible for deferred action”). 6 6 In the DAPA litigation, DHS noted that some deferred-action pro- grams have been implemented by the Executive Branch without explicit legislation. But “ `[p]ast practice does not, by itself, create [executive] power.' ” Medellín v. Texas, 552 U. S. 491, 532 (2008) (quoting Dames & Page Proof Pending Publication 50 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Thomas, J. Congress has failed to provide similar explicit provisions for DACA recipients, and the immigration laws contain no indi- cation that DHS can, at will, create its own categorical poli- cies for deferred action. Other provisions pertaining to relief from removal further demonstrate that DHS lacked the delegated authority to cre- ate DACA. As with lawful presence, Congress has provided a plethora of methods by which aliens may seek relief from removal. For instance, both permanent and temporary resi- dents can seek cancellation of removal if they meet certain residency requirements and have not committed certain crimes. §§ 1229b(a)–(b). And certain nonpermanent resi- dents may have their status adjusted to permanent residence during these proceedings. § 1229b(b)(2). Aliens can apply for asylum or withholding of removal during removal pro- ceedings unless they have committed certain crimes. §§ 1158, 1231(b)(3). Applicants for certain nonimmigrant visas may be granted a stay of removal until the visa appli- cation is adjudicated. § 1227(d). And, aliens may voluntar- ily depart rather than be subject to an order of removal. § 1229c. In sum, like lawful presence, Congress has provided for relief from removal in specific and complex ways. This nuanced detail indicates that Congress has provided the full panoply of methods it thinks should be available for an alien to seek relief from removal, leaving no discre- Moore v. Regan, 453 U. S. 654, 686 (1981)). If any of these programs had been challenged, it would seem that they would be legally infrm for the same reasons as DACA. Moreover, if DHS had the authority to create new categories of aliens eligible for deferred action, then all of Congress' deferred-action legislation was but a superfuous exercise. Duncan v. Walker, 533 U. S. 167, 174 (2001). Finally, whereas some deferred-action programs were followed by legislation, DACA has existed for eight years, and Congress is no closer to a legislative solution than it was in 2012. See, e. g., American Dream and Promise Act of 2019, H. R. 6, 116th Cong., 1st Sess. Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 51 Opinion of Thomas, J. tion to DHS to provide additional programmatic forms of relief.7 3 Finally, DHS could not appeal to general grants of author- ity, such as the Secretary's ability to “perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter,” § 1103(a)(3), or to “[e]s- tablis[h] national immigration enforcement policies and pri- orities,” 6 U. S. C. § 202(5). See also 8 U. S. C. § 1103(g)(2). Because we must interpret the statutes “as a symmetrical and coherent regulatory scheme,” Gustafson v. Alloyd Co., 513 U. S. 561, 569 (1995), these grants of authority must be read alongside the express limits contained within the stat- ute. Basing the Secretary's ability to completely overhaul immigration law on these general grants of authority would eviscerate that deliberate statutory scheme by “allow[ing the Secretary of DHS] to grant lawful presence . . . to any illegal alien in the United States.” Texas, 809 F. 3d, at 184. Not only is this “an untenable position in light of the INA's intri- cate system,” ibid., but it would also render many of those provisions wholly superfuous due to DHS' authority to dis- regard them at will, Duncan v. Walker, 533 U. S. 167, 174 (2001). And in addition to these fatal problems, adopting a broad interpretation of these general grants of authority would run afoul of the presumption that “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. Ameri- can Trucking Assns., Inc., 531 U. S. 457, 468 (2001). And it 7 It is uncontested that deferred action frequently occurs on a case-by- case basis, often justifed on the grounds that the agency lacks resources to remove all removable aliens. Even assuming that these ad hoc exer- cises of discretion are permissible, however, we have stated that “[a]n agency confronting resource constraints may change its own conduct, but it cannot change the law.” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 327 (2014). Page Proof Pending Publication 52 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Thomas, J. would also confict with the major questions doctrine, which is based on the expectation that Congress speaks clearly when it delegates the power to make “decisions of vast economic and political signifcance.” Utility Air Regula- tory Group v. EPA, 573 U. S. 302, 324 (2014) (UARG) (inter- nal quotation marks omitted); see also Texas v. United States, 787 F. 3d 733, 760–761 (CA5 2015). Read together, the detailed statutory provisions govern- ing temporary and lawful permanent resident status, relief from removal, and classwide deferred-action programs lead ineluctably to the conclusion that DACA is “inconsisten[t] with the design and structure of the statute as a whole.” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 353 (2013). As the District Court stated in the DAPA litigation and as then-Attorney General Ses- sions agreed, “[i]nstead of merely refusing to enforce the INA's removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence . . . to individuals Congress has deemed deportable or remov- able.” Texas v. United States, 86 F. Supp. 3d 591, 654 (SD Tex. 2015). The immigration statutes contain a level of granular specifcity that is exceedingly rare in the modern administrative state. It defes all logic and common sense to conclude that a statutory scheme detailed enough to provide conditional lawful presence to groups as narrowly defned as “alien entrepreneurs,” § 1186b, is simultaneously capacious enough for DHS to grant lawful presence to almost two million illegal aliens with the stroke of a Cabinet secretary's pen. B Then-Attorney General Sessions concluded that the initial DACA program suffered from the “same legal . . . defects” as DAPA and expanded DACA, fnding that, like those pro- grams, DACA was implemented without statutory authority. App. 877–878. Not only was this determination correct, but Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 53 Opinion of Thomas, J. it is also dispositive for purposes of our review. “It is axio- matic that an administrative agency's power . . . is limited to the authority delegated by Congress.” Bowen v. George- town Univ. Hospital, 488 U. S. 204, 208 (1988). DHS had no authority here to create DACA, and the unlawfulness of that program is a suffcient justifcation for its rescission. The majority opts for a different path, all but ignoring DACA's substantive legal defect. See ante, at 24–25. On the majority's understanding of APA review, DHS was re- quired to provide additional policy justifcations in order to rescind an action that it had no authority to take. This rule “has no basis in our jurisprudence, and support for [it] is conspicuously absent from the Court's opinion.” Massa- chusetts v. EPA, 549 U. S. 497, 536 (2007) (Roberts, C. J., dissenting). The lack of support for the majority's position is hardly surprising in light of our Constitution's separation of powers. No court can compel Executive Branch offcials to exceed their congressionally delegated powers by continuing a pro- gram that was void ab initio . Cf. Clinton v. City of New York, 524 U. S. 417 (1998); INS v. Chadha, 462 U. S. 919 (1983); see also EPA v. EME Homer City Generation, L. P ., 572 U. S. 489, 542, n. 5 (2014) (Scalia, J., dissenting); Public Citizen v. Department of Justice , 491 U. S. 440, 487 (1989) (Kennedy, J., concurring in judgment). In reviewing agency action, our role is to ensure that Executive Branch offcials do not transgress the proper bounds of their authority, Arlington, 569 U. S., at 327 (Roberts, C. J., dissenting), not to perpetuate a decision to unlawfully wield power in direct contravention of the enabling statute's clear limits, see UARG, 573 U. S., at 327–328; Barnhart v. Sigmon Coal Co., 534 U. S. 438, 462 (2002). Under our precedents, DHS can only exercise the author- ity that Congress has chosen to delegate to it. See UARG, 573 U. S., at 327. In implementing DACA, DHS under the Page Proof Pending Publication 54 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Thomas, J. Obama administration arrogated to itself power it was not given by Congress. Thus, every action taken by DHS under DACA is the unlawful exercise of power. Now, under the Trump administration, DHS has provided the most compel- ling reason to rescind DACA: The program was unlawful and would force DHS to continue acting unlawfully if it carried the program forward. III The majority's demanding review of DHS' decisionmaking process is especially perverse given that the 2012 memoran- dum fouted the APA's procedural requirements—the very requirements designed to prevent arbitrary decisionmaking. Even if DHS were authorized to create DACA, it could not do so without undertaking an administrative rulemaking. The fact that DHS did not engage in this process likely pro- vides an independent basis for rescinding DACA. But at the very least, this procedural defect compounds the absur- dity of the majority's position in these cases. As described above, DACA fundamentally altered the im- migration laws. It created a new category of aliens who, as a class, became exempt from statutory removal procedures, and it gave those aliens temporary lawful presence. Both changes contravened statutory limits. DACA is thus what is commonly called a substantive or legislative rule. 8 As the name implies, our precedents state that legislative rules are those that “have the force and effect of law.” Chrysler Corp. v. Brown, 441 U. S. 281, 295 (1979) (internal quotation marks omitted). Our precedents allow the vast majority of legislative rules to proceed through so-called “informal” notice and comment rulemaking. See United States v. Florida East Coast R. 8 The majority tacitly acknowledges as much, as it must. See ante, at 18–19. Otherwise, the majority would have to accept that DACA was nothing more than a policy of prosecutorial discretion, which would make its rescission unreviewable. See Heckler v. Chaney, 470 U. S. 821, 831 (1985). Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 55 Opinion of Thomas, J. Co., 410 U. S. 224, 237–238 (1973). 9 But under our prece- dents, an agency must engage in certain procedures man- dated by the APA before its rule carries legal force. Kisor v. Wilkie, 588 U. S. 558, 584 (2019) (plurality opinion) (“[A] legislative rule, . . . to be valid[,] must go through notice and comment”); id., at 607 (Gorsuch, J., concurring in judgment) (same); Perez v. Mortgage Bankers Assn., 575 U. S. 92, 96 (2015); cf. Azar v. Allina Health Services, 587 U. S. 566, 568 (2019) (same with respect to materially identical procedures under the Medicare Act). These procedures specify that the agency “shall” publish a notice of proposed rulemaking in the Federal Register, justify the rule by reference to legal authority, describe “the subjects and issues involved” in the rule, and allow interested parties to submit comments. 5 U. S. C. §§ 553(b)–(c); see also Kisor, 588 U. S., at 607 (opinion of Gorsuch, J.). As we have recognized recently, use of the word “shall” indicates that these procedures impose manda- tory obligations on the agency before it can adopt a valid binding regulation. See Maine Community Health Options v. United States, 590 U. S. 296, 310 (2020). After undergoing notice and comment, the agency then publishes the fnal rule, which must “articulate a satisfactory explanation for [the] ac- tion including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983) (internal quotation marks omitted). Only after completing this process is the legislative rule a valid law. See Kisor, 588 U. S., at 607 (opinion of Gorsuch, J.). 10 9 As I have previously pointed out, “the APA actually contemplated a much more formal process for most rulemaking.” Perez v. Mortgage Bankers Assn. , 575 U. S. 92, 128, n. 5 (2015) (opinion concurring in judgment). 10 The APA also provides certain exceptions from notice and comment rulemaking. For example, an agency may promulgate a legally binding rule without notice and comment if good cause exists to do so. 5 U. S. C. § 553(b)(B). This text would become a nullity if the agency could achieve Page Proof Pending Publication 56 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Thomas, J. Because DACA has the force and effect of law, DHS was required to observe the procedures set out in the APA if it wanted to promulgate a legislative rule. It is undisputed, however, that DHS did not do so. It provided no oppor- tunity for interested parties to submit comments regarding the effect that the program's dramatic and very signifcant change in immigration law would have on various aspects of society. It provided no discussion of economic considera- tions or national security interests. Nor did it provide any substantial policy justifcations for treating young people brought to this country differently from other classes of aliens who have lived in the country without incident for many years. And, it did not invoke any law authorizing DHS to create such a program beyond its inexplicable asser- tion that DACA was consistent with existing law. Because DHS failed to engage in the statutorily mandated process, DACA never gained status as a legally binding regulation that could impose duties or obligations on third parties. See id., at 584 (plurality opinion); id., at 607 (opinion of Gor- such, J.). Given this state of affairs, it is unclear to me why DHS needed to provide any explanation whatsoever when it de- cided to rescind DACA. Nothing in the APA suggests that DHS was required to spill any ink justifying the rescission of an invalid legislative rule, let alone that it was required to provide policy justifcations beyond acknowledging that the program was simply unlawful from the beginning. And, it is well established that we do not remand for an agency to correct its reasoning when it was required by law to take or abstain from an action. See Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U. S. 527, 544–545 (2008). Here, remand would be futile, because no amount of policy explanation could cure the fact that DHS lacked statutory authority to enact DACA in the frst place. the same effect by simply dispensing with notice and comment proce- dures altogether. Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 57 Opinion of Thomas, J. Instead of recognizing this, the majority now requires the rescinding Department to treat the invalid rule as though it were legitimate. As just explained, such a requirement is not supported by the APA. 11 It is also absurd, as evidenced by its application to DACA in these cases. The majority insists that DHS was obligated to discuss its choices regard- ing benefts and forbearance in great detail, even though no such detailed discussion accompanied DACA's issuance. And, the majority also requires DHS to discuss reliance in- terests at length, even though deferred action traditionally does not take reliance interests into account and DHS was not forced to explain its treatment of reliance interests in the frst instance by going through notice and comment. See infra, at 61. The majority's demand for such an expla- nation here simply makes little sense. At bottom, of course, none of this matters, because DHS did provide a suffcient explanation for its action. DHS' statement that DACA was ultra vires was more than suff- cient to justify its rescission. 12 By requiring more, the ma- jority has distorted the APA review process beyond recog- nition, further burdening all future attempts to rescind unlawful programs. Plaintiffs frequently bring successful challenges to agency actions by arguing that the agency has impermissibly dressed up a legislative rule as a policy state- ment and must comply with the relevant procedures before functionally binding regulated parties. See, e. g., Mendoza v. Perez, 754 F. 3d 1002 (CADC 2014); Natural Resources Defense Council v. EPA, 643 F. 3d 311 (CADC 2011); Na- tional Family Planning & Reproductive Health Assn., Inc. v. Sullivan, 979 F. 2d 227 (CADC 1992). But going forward, 11 Thus, it is not that the APA “should not” be construed to support the majority's result, ante, at 33 (emphasis added), it is that the APA does not and cannot support that result. 12 I express no view on what other reasons would justify an agency's decision to rescind a procedurally unlawful action. I merely point out that correctly concluding that the program was illegal is suffcient. 58 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Thomas, J. when a rescinding agency inherits an invalid legislative rule that ignored virtually every rulemaking requirement of the APA, it will be obliged to overlook that reality. Instead of simply terminating the program because it did not go through the requisite process, the agency will be compelled to treat an invalid legislative rule as though it were legitimate. 13 IV Even if I were to accept the majority's premise that DACA's rescission required additional policy justifcations, the majority's reasons for setting aside the agency's decision still fail. A First, the majority claims that the Fifth Circuit discussed only the legality of the 2014 memorandum's conferral of ben- efts, not its “forbearance component”—i. e., the decision not to place DACA recipients into removal proceedings. Ante, at 27. The majority, therefore, claims that, notwithstanding the then-Attorney General's legal conclusion, then-Acting Secretary Duke was required to consider revoking DACA recipients' lawful presence and other attendant benefts while continuing to defer their removal. Ante, at 29. Even assuming the majority correctly characterizes the Fifth Circuit's opinion, it cites no authority for the proposition that arbitrary and capricious review requires an agency to dissect an unlawful program piece by piece, scrutinizing 13 In my view, even if DACA were permitted under the federal immigra- tion laws and had complied with the APA, it would still violate the Consti- tution as an impermissible delegation of legislative power. See Depart- ment of Transportation v. Association of American Railroads, 575 U. S. 43, 77 (2015) (Thomas, J., concurring in judgment). Putting aside this constitutional concern, however, the notice and comment process at least attempts to provide a “surrogate political process” that takes some of the sting out of the inherently undemocratic and unaccountable rulemaking process. Asimow, Interim-Final Rules: Making Haste Slowly, 51 Admin. L. Rev. 703, 708 (1999). Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 59 Opinion of Thomas, J. each separate element to determine whether it would inde- pendently violate the law, rather than just rescinding the entire program.14 The then-Attorney General reviewed the thorough deci- sions of the District Court and the Fifth Circuit. Those courts exhaustively examined the INA's text and structure, the relevant provisions of other federal immigration statutes, the historical practice of deferred action, and the general grants of statutory authority to set immigration policy. Both decisions concluded that DAPA and expanded DACA violated the carefully crafted federal immigration scheme, that such violations could not be justifed through reference to past exercises of deferred action, and that the general grants of statutory authority did not give DHS the power to enact such a sweeping nonenforcement program. Based on the reasoning of those decisions, then-Attorney General Ses- sions concluded that DACA was likewise implemented with- 14 The majority's interpretation of the Fifth Circuit's opinion is highly questionable. Because a grant of deferred action renders DACA recipi- ents eligible for certain benefts and work authorization, it is far from clear that the Department could separate DACA's “forbearance component” from the major benefts it conferred without running into yet another APA problem. The majority points to the fact that, under the Patient Protec- tion and Affordable Care Act of 2010, relevant regulations exclude those receiving deferred action through DACA from coverage. Ante, at 26–27, n. 5. But that misses the point. Those regulations were promulgated before “anyone with deferred action under the DACA process applie[d]” for those benefts. See 77 Fed. Reg. 52616 (2012). By contrast, DACA recipients have been eligible for and have received Medicare, Social Secu- rity, and work authorization for years. DHS therefore is not writing on a blank slate. Under the majority's rule, DHS would need to amend all relevant regulations and explain why all recipients of deferred action who have previously received such benefts may no longer receive them. Al- ternatively and perhaps more problematically, it would need to provide a reason why other recipients of deferred action should continue to qualify, while DACA recipients should not. It thus seems highly likely that the majority's proposed course of action would be subject to serious arbitrary and capricious challenges. Page Proof Pending Publication 60 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Thomas, J. out statutory authority. He directed DHS to restore the rule of law. DHS followed the then-Attorney General's legal analysis and rescinded the program. This legal conclu- sion more than suffces to supply the “reasoned analysis” nec- essary to rescind an unlawful program. State Farm, 463 U. S., at 42. The majority has no answer except to suggest that this approach is inconsistent with State Farm. See ante, at 28– 29. But in doing so, the majority ignores the fact that, un- like the typical “prior policy” contemplated by the Court in State Farm, DACA is unlawful. Neither State Farm nor any other decision cited by the majority addresses what an agency must do when it has inherited an unlawful program. It is perhaps for this reason that, rather than responding with authority of its own, the majority simply opts to excise the “unlawful policy” aspect from its discussion. B Second, the majority claims that DHS erred by failing to take into account the reliance interests of DACA recipients. Ante, at 30–33. But reliance interests are irrelevant when assessing whether to rescind an action that the agency lacked statutory authority to take. No amount of reliance could ever justify continuing a program that allows DHS to wield power that neither Congress nor the Constitution gave it. Any such decision would be “not in accordance with law” or “in excess of statutory . . . authority.” 5 U. S. C. §§ 706(2)(A), (C). Accordingly, DHS would simply be engag- ing in yet another exercise of unlawful power if it used reli- ance interests to justify continuing the initially unlawful pro- gram, and a court would be obligated to set aside that action. 15 15 The majority contends that this argument does not carry force because the rescission implemented a winddown period during which recipients would continue to receive benefts. But whether DHS' decision to wind down DACA was lawful is a separate question from whether DHS was Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 61 Opinion of Thomas, J. Even if reliance interests were sometimes relevant when rescinding an ultra vires action, the rescission still would not be arbitrary and capricious here. Rather, as the majority does not dispute, the rescission is consistent with how de- ferred action has always worked. As a general matter, de- ferred action creates no rights—it exists at the Govern- ment's discretion and can be revoked at any time. See App. to Pet. for Cert. in No. 18–587, at 104a (DACA and expanded DACA); 8 CFR § 214.11(j)(3) (T visas); § 214.14(d)(2) (U visas); 62 Fed. Reg. 63249, 63253 (1997) (discussing Exec. Order No. 12711 for certain citizens of the People's Republic of China). The Government has made clear time and again that, because “deferred action is not an immigration status, no alien has the right to deferred action. It is used solely in the discretion of the [Government] and confers no protec- tion or beneft upon an alien.” DHS Immigration and Cus- toms Enforcement Offce of Detention and Removal, Deten- tion and Deportation Offcer's Field Manual § 20.8 (Mar. 27, 2006); see also Memorandum from D. Meissner, Comm'r, INS, to Regional Directors et al., pp. 11–12 (Nov. 17, 2000); Memo- randum from W. Yates, Assoc. Director of Operations, DHS, Citizenship and Immigration Servs., to Director, Vt. Serv. Center, p. 5 (2003). Thus, contrary to the majority's unsup- ported assertion, ante, at 30, this longstanding administra- tive treatment of deferred action provides strong evidence and authority for the proposition that an agency need not consider reliance interests in this context. 16 required to consider reliance interests before discontinuing an unlawful program. 16 The majority's approach will make it far more diffcult to change deferred-action programs going forward, which is hardly in keeping with this Court's own understanding that deferred action is an “exercise in administrative discretion” used for administrative “convenience.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 484 (1999). Agencies will likely be less willing to grant deferred action knowing that any attempts to undo it will require years of litigation and time- consuming rulemakings. 62 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Thomas, J. Finally, it is inconceivable to require DHS to study reli- ance interests before rescinding DACA considering how the program was previously defended. DHS has made clear since DACA's inception that it would not consider such reli- ance interests. Contemporaneous with the DACA memo, DHS stated that “DHS can terminate or renew deferred ac- tion at any time at the agency's discretion.” Consideration of Deferred Action for Childhood Arrivals Process, 89 Inter- preter Releases 1557, App. 4, p. 2 (Aug. 20, 2012). In fact, DHS repeatedly argued in court that the 2014 memorandum was a valid exercise of prosecutorial discretion in part be- cause deferred action created no rights on which recipients could rely. Before the Fifth Circuit, DHS stated that “DHS may revoke or terminate deferred action and begin removal proceedings at any time at its discretion.” Brief for Appel- lants in Texas v. United States, No. 15–40238, p. 7; see also id., at 45–46. And before this Court, in that same litigation, DHS reiterated that “DHS has absolute discretion to revoke deferred action unilaterally, without notice or process.” Brief for United States in United States v. Texas, O. T. 2015, No. 15–674, p. 5; see also id., at 37. If that treatment of reliance interests was incorrect, it provides yet one more example of a defciency in DACA's issuance, not its rescission. * * * President Trump's Acting Secretary of Homeland Security inherited a program created by President Obama's Secre- tary that was implemented without statutory authority and without following the APA's required procedures. Then- Attorney General Sessions correctly concluded that this ultra vires program should be rescinded. These cases could—and should—have ended with a determination that his legal conclusion was correct. Instead, the majority today concludes that DHS was re- quired to do far more. Without grounding its position in either the APA or precedent, the majority declares that DHS Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 63 Opinion of Alito, J. was required to overlook DACA's obvious legal defciencies and provide additional policy reasons and justifcations be- fore restoring the rule of law. This holding is incorrect, and it will hamstring all future agency attempts to undo actions that exceed statutory authority. I would therefore reverse the judgments below and remand with instructions to dis- solve the nationwide injunctions. Justice Alito , concurring in the judgment in part and dissenting in part. Anyone interested in the role that the Federal Judiciary now plays in our constitutional system should consider what has happened in these cases. Early in the term of the cur- rent President, his administration took the controversial step of attempting to rescind the Deferred Action for Childhood Arrivals (DACA) program. Shortly thereafter, one of the nearly 700 federal district court judges blocked this rescis- sion, and since then, this issue has been mired in litigation. In November 2018, the Solicitor General fled petitions for certiorari, and today, the Court still does not resolve the question of DACA's rescission. Instead, it tells the Depart- ment of Homeland Security to go back and try again. What this means is that the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occur- ring during an entire Presidential term. Our constitutional system is not supposed to work that way. I join Justice Thomas's opinion. DACA presents a deli- cate political issue, but that is not our business. As Justice Thomas explains, DACA was unlawful from the start, and that alone is suffcient to justify its termination. But even if DACA were lawful, we would still have no basis for over- turning its rescission. First, to the extent DACA repre- sented a lawful exercise of prosecutorial discretion, its re- scission represented an exercise of that same discretion, and it would therefore be unreviewable under the Administrative Procedure Act. 5 U. S. C. § 701(a)(2); see Heckler v. Chaney, 64 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Kavanaugh, J. 470 U. S. 821, 831–832 (1985). Second, to the extent we could review the rescission, it was not arbitrary and capri- cious for essentially the reasons explained by Justice Kava- naugh. See post, at 66–68 (opinion concurring in judgment in part and dissenting in part). Justice Kavanaugh, concurring in the judgment in part and dissenting in part. For the last 20 years, the country has engaged in conse- quential policy, religious, and moral debates about the legal status of millions of young immigrants who, as children, were brought to the United States and have lived here ever since. Those young immigrants do not have legal status in the United States under current statutory law. They live, go to school, and work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to afford legal status to those immigrants. In 2012, exercising its view of the Executive's prosecuto- rial discretion under Article II and the immigration laws, President Obama's administration unilaterally instituted a program known as Deferred Action for Childhood Arrivals, or DACA. Under DACA, eligible young immigrants may apply for and receive deferred action. They must renew their DACA status every two years. Under the program, the Executive Branch broadly forbears from enforcing cer- tain immigration removal laws against DACA recipients. And by virtue of the forbearance, DACA recipients also be- come eligible for work authorization and other benefts. Since 2017, President Trump's administration has sought to rescind DACA based on its different and narrower under- standing of the Executive's prosecutorial discretion under Article II and the immigration laws. In its view, the Execu- tive Branch legally may not, and as a policy matter should not, unilaterally forbear from enforcing the immigration laws against such a large class of individuals. The current Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 65 Opinion of Kavanaugh, J. administration has stated that it instead wants to work with Congress to enact comprehensive legislation that would ad- dress the legal status of those immigrants together with other signifcant immigration issues. The question before the Court is whether the Executive Branch acted lawfully in ordering rescission of the ongoing DACA program. To begin with, all nine Members of the Court accept, as do the DACA plaintiffs themselves, that the Executive Branch possesses the legal authority to re- scind DACA and to resume pre-DACA enforcement of the immigration laws enacted by Congress. Having previously adopted a policy of prosecutorial discretion and nonenforce- ment with respect to a particular class of offenses or individ- uals, the Executive Branch has the legal authority to rescind such a policy and resume enforcing the law enacted by Con- gress. The Executive Branch's exercise of that rescission authority is subject to constitutional constraints and may also be subject to statutory constraints. The narrow legal dispute here concerns a statutory constraint—namely, whether the Executive Branch's action to rescind DACA sat- isfed the general arbitrary-and-capricious standard of the Administrative Procedure Act, or APA. The APA's arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained. As the Court has long stated, judicial review under that stand- ard is deferential to the agency. The Court may not substi- tute its policy judgment for that of the agency. The Court simply ensures that the agency has acted within a broad zone of reasonableness and, in particular, has reasonably consid- ered the relevant issues and reasonably explained the deci- sion. See FCC v. Fox Television Stations, Inc., 556 U. S. 502 (2009); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983). The Executive Branch explained its decision to rescind DACA in two sequential memorandums by successive Secre- taries of Homeland Security: the 2017 Duke Memorandum Page Proof Pending Publication 66 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Kavanaugh, J. and the 2018 Nielsen Memorandum. The Duke Memoran- dum focused on DACA's perceived legal faws. The Court today fnds the Duke Memorandum insuffcient under the APA's arbitrary-and-capricious standard. But regardless 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 clarifed that even if DACA were lawful, the Department would still rescind DACA for a variety of policy reasons. The Nielsen Memorandum also expressly addressed the reliance interests of DACA recipients. The question under the APA's deferential arbitrary-and - capricious standard is not whether we agree with the De- partment's decision to rescind DACA. The question is whether the Nielsen Memorandum reasonably explained the decision to rescind DACA. Under ordinary application of the arbitrary-and-capricious standard, the Nielsen Memorandum—with its alternative and independent ration- ales and its discussion of reliance—would pass muster as an explanation for the Executive Branch's action. The Nielsen Memorandum was issued nine months after the Duke Memorandum. Under the Administrative Proce- dure Act, the Nielsen Memorandum is itself a “rule” setting forth “an agency statement of general . . . applicability and future effect designed to implement . . . policy.” 5 U. S. C. § 551(4). Because it is a rule, the Nielsen Memorandum con- stitutes “agency action.” § 551(13). As the Secretary of Homeland Security, Secretary Nielsen had the authority to decide whether to stick with Secretary Duke's decision to rescind DACA, or to make a different decision. Like Secre- tary Duke, Secretary Nielsen chose to rescind DACA, and she provided additional explanation. Her memorandum was akin to common forms of agency action that follow earlier agency action on the same subject—for example, a supple- mental or new agency statement of policy, or an agency order with respect to a motion for rehearing or reconsideration. Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 67 Opinion of Kavanaugh, J. Courts often consider an agency's additional explanations of policy or additional explanations made, for example, on agency rehearing or reconsideration, or on remand from a court, even if the agency's bottom-line decision itself does not change. Yet the Court today jettisons the Nielsen Memorandum by classifying it as a post hoc justifcation for rescinding DACA. Ante , at 21–23. Under our precedents, however, the post hoc justifcation doctrine merely requires that courts assess agency action based on the offcial explanations of the agency decisionmakers, and not based on after-the-fact ex- planations advanced by agency lawyers during litigation (or by judges). See, e. g., State Farm, 463 U. S., at 50 (“courts may not accept appellate counsel's post hoc rationalizations for agency action”); FPC v. Texaco Inc., 417 U. S. 380, 397 (1974) (same); NLRB v. Metropolitan Life Ins. Co., 380 U. S. 438, 443–444 (1965) (same); Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168–169 (1962) (same). As the D. C. Circuit has explained, the post hoc justifcation doctrine “is not a time barrier which freezes an agency's exercise of its judgment after an initial decision has been made and bars it from further articulation of its reasoning. It is a rule di- rected at reviewing courts which forbids judges to uphold agency action on the basis of rationales offered by anyone other than the proper decisionmakers.” Alpharma, Inc. v. Leavitt, 460 F. 3d 1, 6 (2006) (Garland, J.) (internal quotation marks omitted). Indeed, the ordinary judicial remedy for an agency's insuf- fcient explanation is to remand for further explanation by the relevant agency personnel. It would make little sense for a court to exclude offcial explanations by agency person- nel such as a Cabinet Secretary simply because the explana- tions are purportedly post hoc, and then to turn around and remand for further explanation by those same agency per- sonnel. Yet that is the upshot of the Court's application of the post hoc justifcation doctrine today. The Court's refusal Page Proof Pending Publication 68 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Kavanaugh, J. to look at the Nielsen Memorandum seems particularly mis- taken, moreover, because the Nielsen Memorandum shows that the Department, back in 2018, considered the policy is- sues that the Court today says the Department did not con- sider. Ante, at 27–33. To be sure, cases such as Overton Park and Camp v. Pitts suggest that courts reviewing certain agency adjudications may in some circumstances decline to examine an after-the- fact agency explanation. See Camp v. Pitts, 411 U. S. 138, 142–143 (1973) (per curiam ); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 419–421 (1971). But agency adjudications are “concerned with the determination of past and present rights and liabilities,” Attorney General's Manual on the Administrative Procedure Act 14 (1947), and implicate the due process interests of the individual parties to the adjudication. Judicial review of an adjudication therefore ordinarily focuses on what happened during the agency's adjudication process of deciding that individual case. Even if certain agency adjudications have a slightly more stringent restriction on post hoc explanations, the APA is “based upon a dichotomy between rule making and adjudica- tion,” ibid., and this case involves an ongoing agency rule that has future effect—the rescission of DACA. The Niel- sen Memorandum implements and explains the rescission of DACA. I am aware of no case from this Court, and the Court today cites none, that has employed the post hoc justi- fcation doctrine to exclude an agency's offcial explanation of an agency rule. For purposes of arbitrary-and-capricious review, it does not matter whether the latest offcial explana- tion was two years ago or three years ago. What matters is whether the explanation was reasonable and followed the requisite procedures. In my view, the Court should con- sider the Nielsen Memorandum in deciding whether the De- partment's rescission of DACA satisfes the APA's arbitrary- and-capricious standard. Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 69 Opinion of Kavanaugh, J. Because the Court excludes the Nielsen Memorandum, the Court sends the case back to the Department of Homeland Security for further explanation. Although I disagree with the Court's decision to remand, the only practical conse- quence of the Court's decision to remand appears to be some delay. The Court's decision seems to allow the Department on remand to relabel and reiterate the substance of the Niel- sen Memorandum, perhaps with some elaboration as sug- gested in the Court's opinion. Ante, at 30–33.* * * * The Court's resolution of this narrow APA issue of course cannot eliminate the broader uncertainty over the status of the DACA recipients. That uncertainty is a result of Con- gress's inability thus far to agree on legislation, which in turn has forced successive administrations to improvise, thereby triggering many rounds of relentless litigation with the pros- *Because I conclude that the Executive Branch satisfied the APA's arbitrary-and-capricious standard, I need not consider whether its prose- cutorial enforcement policy was “committed to agency discretion by law” and therefore not subject to APA arbitrary-and-capricious review in the frst place. 5 U. S. C. § 701(a)(2). Several judges have advanced argu- ments suggesting that DACA—at least to the extent it was simply an exercise of forbearance authority—and the repeal of DACA are decisions about whether and to what extent to exercise prosecutorial discretion against a class of offenses or individuals, and are therefore unreviewable under the APA as “committed to agency discretion by law.” Ibid.; see Casa De Maryland v. United States Dept. of Homeland Security , 924 F. 3d 684, 709–715 (CA4 2019) (Richardson, J., concurring in part and dissenting in part); Regents of Univ. Cal. v. United States Dept. of Homeland Secu- rity, 908 F. 3d 476, 521–523 (CA9 2018) (Owens, J., concurring in judg- ment); see also Texas v. United States, 809 F. 3d 134, 196–202 (CA5 2015) (King, J., dissenting); Texas v. United States, 787 F. 3d 733, 770–776 (CA5 2015) (Higginson, J., dissenting); cf. Heckler v. Chaney, 470 U. S. 821, 831– 835 (1985); ICC v. Locomotive Engineers, 482 U. S. 270, 277–284 (1987); United States v. Nixon, 418 U. S. 683, 693 (1974) (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prose- cute a case”); In re Aiken County , 725 F. 3d 255, 262–264 (CADC 2013). Page Proof Pending Publication 70 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Kavanaugh, J. pect of more litigation to come. In contrast to those neces- sarily short-lived and stopgap administrative measures, the Article I legislative process could produce a sturdy and en- during solution to this issue, one way or the other, and thereby remove the uncertainty that has persisted for years for these young immigrants and the Nation's immigration system. In the meantime, as to the narrow APA question presented here, I appreciate the Court's careful analysis, but I ultimately disagree with its treatment of the Nielsen Mem- orandum. I therefore respectfully dissent from the Court's judgment on plaintiffs' APA claim, and I concur in the judg- ment insofar as the Court rejects plaintiffs' equal protec- tion claim. Page Proof Pending Publication
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PRELIMINARY PRINT Volume 591 U. S. Part 1 Pages 1–70 OFFICIAL REPORTS OF THE SUPREME COURT June 18, 2020 Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of …
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ity for benefts. This Court affrmed by an equally divided vote, and the litigation then continued in the District Court. In June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum, citing, among other reasons, the ongoing suit by Texas and new policy priorities. That Septem…
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Cite as: 591 U. S. 1 (2020) 3 Syllabus explained why she thought her predecessor's decision was sound. In addition to reiterating the illegality conclusion, she offered several new justifcations for the rescission. The Government moved for the Dis- trict Court to reconsider in light of this additional explanation…
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ization and are eligible for Social Security and Medicare. Access to such benefts is an interest “courts often are called upon to protect.” Ibid. DACA's rescission is thus subject to review under the APA. Pp. 16–19. Page Proof Pending Publication Page Proof Pending Publication 4 DEP ARTMENT OF HOMELAND SECURITY v…
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and after three different courts had identifed faws in the original explanation. Pp. 20–24. (b) Acting Secretary Duke's rescission memorandum failed to con- sider important aspects of the problem before the agency. Although Duke was bound by the Attorney General's determination that DACA is illegal, see 8 U. S. C…
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but those features are for the agency to consider in the frst instance. DHS has fexibility in addressing any reliance interests and could have considered various accommodations. While the agency was not re- quired to pursue these accommodations, it was required to assess the existence and strength of any reliance …
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son, Margaret Wu, and Brian Danitz. On the brief in No. 18–588 were Lindsay C. Harrison, Ian Heath Gershen- gorn, Thomas J. Perrelli, Matthew E. Price, Ishan K. Bhabha, Benjamin M. Eidelson, Joseph M. Sellers, Ramona E. Romero, Wesley Markham, Cynthia L. Randall, David J. Strom, and Peter J. Ford. Michael J. Mon…
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Kevin G. Clarkson of Alaska, Mark Brnovich of Arizona, Leslie Rutledge of Arkansas, Ashley Moody of Florida, Derek Schmidt of Kansas, Jeff Landry of Louisiana, Doug Peterson of Nebraska, Alan Wilson of South Carolina, Jason R. Ravnsborg of South Dakota, and Patrick Morrisey of West Virginia; for the Cato Institute…
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anne J. Gorod, and Brian R. Frazelle; for Empirical Scholars by Nikolas Bowie and Oren Nimni; for Former Homeland Security and Immigration Offcials by Joshua Riley, Menno Goedman, Albert Giang, Jeh C. Johnson, and Masha G. Hansford; for Former National Security Offcials by Harold Hongju Koh, Hope R. Metcalf, and P…
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alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her deci- sion. For the reasons that follow, we conclude that the Act- ing Secretary did violate the APA, and that the rescission must be vacated…
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removed from the United States,” the DACA Memorandum instructs Immigration and Customs Enforcement to “exer- cise prosecutorial discretion[ ] on an individual basis . . . by deferring action for a period of two years, subject to re- newal.” Id., at 100a. In addition, it directs U. S. Citizen- ship and Immigration…
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A divided panel of the Court of Appeals for the Fifth Cir- cuit affrmed the preliminary injunction. Texas v. United States, 809 F. 3d 134, 188 (2015). In opposing the injunction, the Government argued that the DAPA Memorandum re- fected an unreviewable exercise of the Government's en- forcement discretion. The Fi…
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Fifth Circuit's opinion and this Court's equally divided af- frmance, the Attorney General concluded that DACA shared the “same legal . . . defects that the courts recognized as to DAPA” and was “likely” to meet a similar fate. Id., at 878. “In light of the costs and burdens” that a rescission would “impose[ ] on…
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2 In a related challenge not at issue here, the District Court for the District of Maryland granted partial summary judgment in favor of the Government. Casa de Maryland v. United States Dept. of Homeland Page Proof Pending Publication 14 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of t…
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Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 15 Opinion of the Court Duke memorandum,” she “decline[d] to disturb” the rescis- sion. Id., at 121a. Secretary Nielsen went on to articulate her “understanding” of Duke's memorandum, identifying three reasons why, in Nielsen's estimation, “the decision …
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U. S. ––– (2019). The issues raised here are (1) whether the APA claims are reviewable, (2) if so, whether the rescission was arbitrary and capricious in violation of the APA, and (3) whether the plaintiffs have stated an equal protection claim. II The dispute before the Court is not whether DHS may rescind DACA…
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182, 191 (1993). This limited category of unreviewable ac- tions includes an agency's decision not to institute enforce- ment proceedings, Heckler v. Chaney, 470 U. S. 821, 831–832 (1985), and it is on that exception that the Government pri- marily relies. In Chaney, several death-row inmates petitioned the Food …
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class. Ibid. Instead, it directed USCIS to “establish a clear and effcient process” for identifying individuals who met the enumerated criteria. App. to Pet. for Cert. 100a. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notice…
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ity opinion); id., at 355 (Breyer , J., dissenting). And it is certainly not a bar where, as here, the parties are not chal- lenging any removal proceedings. Section 1252(g) is similarly narrow. That provision limits review of cases “arising from” decisions “to commence pro- ceedings, adjudicate cases, or execute…
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agency's reasoning at the time of the agency action.” Pen- sion Beneft Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654 (1990) (emphasis added). See also Alpharma, Inc. v. Leavitt, 460 F. 3d 1, 5–6 (CADC 2006) (Garland, J.) (per- mitting an agency to provide an “amplifed articulation” of a prior “conclusory”…
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at 420. But despite purporting to explain the Duke Memo- randum, Secretary Nielsen's reasoning bears little relation- Page Proof Pending Publication 22 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of the Court ship to that of her predecessor. Acting Secretary Duke rested the rescission …
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cise of authority. Considering only contemporaneous expla- nations for agency action also instills confdence that the rea- sons given are not simply “convenient litigating position[s].” Christopher v. SmithKline Beecham Corp., 567 U. S. 142, 155 (2012) (internal quotation marks omitted). Permitting agencies to in…
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States, 368 U. S. 208, 229 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision. B We turn, fnally, to whether DHS's …
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deed they emphasized the point in the reviewability sections of their briefs. But in their merits arguments, respondents never addressed whether or how this unique statutory provi- sion might affect our review. They did not discuss whether Duke was required to explain a legal conclusion that was not hers to make.…
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thorized aliens on “a class-wide basis.” Texas, 809 F. 3d, at 170; see id., at 148, 184. The Fifth Circuit's focus on these benefts was central to every stage of its analysis. See id., at 155 (standing); id., at 163 (zone of interest); id., at 164 (applicability of § 1252(g)); id., at 166 (reviewability); id., at …
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that nothing in its decision or the preliminary injunction “requires the Secretary to remove any alien or to alter” the Secretary's class-based “enforcement priorities.” Texas, 809 F. 3d, at 166, 169. In other words, the Secretary's for- bearance authority was unimpaired. Acting Secretary Duke recognized that the…
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passive restraint requirement in full. Id., at 38. We concluded that the total rescission was arbitrary and capricious. As we explained, NHTSA's justifcation sup- ported only “disallow[ing] compliance by means of” auto- matic seatbelts. Id., at 47. It did “not cast doubt” on the “effcacy of airbag technology” or …
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regulation. See 8 CFR § 1.3(a)(4)(vi); see also 42 CFR § 417.422(h) (cross- referencing 8 CFR § 1.3). Thus, DHS could have addressed the Attorney General's determination that such benefts were impermissible under the INA by amending 8 CFR § 1.3 to exclude DACA recipients from those benefts without rescinding the D…
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considered potential reliance interests; it counters that she did not need to. In the Government's view, shared by the lead dissent, DACA recipients have no “legally cognizable Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 31 Opinion of the Court reliance interests” because the DACA Memorandum state…
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sent's point, DHS could respond that reliance on forbearance and benefts was unjustifed in light of the express limita- tions in the DACA Memorandum. Or it might conclude that reliance interests in benefts that it views as unlawful are entitled to no or diminished weight. And, even if DHS ulti- mately concludes t…
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explore “every alternative device and thought conceivable by the mind of man.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 551 (1978). But, because DHS was “not writing on a blank slate,” post, at 59, n. 14 (opinion of Thomas, J.), it was re- quired to assess whet…
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ropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.” Id., at 266–268. Tracking these factors, respondents allege th…
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#33
tend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as in- terpreted by respondents, these statements—remote in time and made in unrelated contexts—do not qualify as “contem- porary statements” probative of the decision at issue. Ar- lington Heights, 429 U…
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#34
claims on remand. Respondents' equal protection challenges come to us in a preliminary posture. All that respondents needed to do at this stage of the litigation was state suffcient facts that would “allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Ashcrof…
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#35
senting). Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexico—a keystone of President Trump's campaign and a policy prior- ity of his administration—and, according to respondents, were an animating force behind the rescission of DACA. Cf. ibid. (noting that Presi…
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#36
the rationale . . . provided.” Department of Commerce v. Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 39 Opinion of Thomas, J. New York, 588 U. S. –––, ––– (2019). Only by bypassing con- text does the plurality conclude otherwise. * * * The facts in respondents' complaints create more than a “she…
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#37
without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the author- ity to scrutinize an agency's policy reasons for rescinding an unlawful program under …
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#38
rected immigration enforcement offcers not to remove “cer- tain young people who were brought to this country as chil- 1 I concur in the judgment insofar as the majority rejects respondents' equal protection claim. 2 See Immigrant Children's Educational Advancement and Dropout Pre- vention Act of 2001, H. R. 1582…
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#39
§ 1324a(h)(3)(B); 8 CFR § 274a.12(c)(14). Despite these changes, the memorandum contradictorily claimed that it “confer[red] no substantive right [or] immigration status,” because “[o]nly the Congress, acting through its legislative authority, can confer these rights.” App. to Pet. for Cert. in No. 18–587, at 101…
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#40
The District Court preliminarily enjoined DAPA and ex- panded DACA. The Fifth Circuit affrmed, rejecting DHS' claim that the programs were an exercise of prosecutorial discretion. Texas, 809 F. 3d, at 167, 188. The court con- cluded that the States were likely to succeed on their claim that the 2014 memorandum wa…
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#41
not otherwise acted to provide by law.” App. to Pet. for Cert. in No. 18–587, at 112a. It described the history of the Fifth Circuit litigation, noting that the court had concluded that DAPA “conficted with the discretion authorized by Congress” because “the [INA] fatly does not permit the re- classifcation of mi…
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#42
exception to the statutory provisions governing removability Page Proof Pending Publication 46 DEP ARTMENT OF HOMELAND SECURITY v. REGENTS OF UNIV . OF CAL. Opinion of Thomas, J. and, in the process, conferred lawful presence on an entire class of aliens. To lawfully implement such changes, DHS needed a grant …
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#43
specialized knowledge related to their employers. See §§ 1101(a)(15)(A)–(V), 1184; 8 CFR § 214.1; see also Congres- sional Research Service, J. Wilson, Nonimmigrant and Immi- grant Visa Categories: Data Brief 1–6 (2019) (Table 1). In addition, the statutes permit the Attorney General to grant temporary “parole” i…
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#44
Congress knows well how to provide broad discretion, and it has provided open-ended delegations of authority in statutes too numerous to name. But when it comes to lawful pres- ence, Congress did something strikingly different. Instead of enacting a statute with “broad general directives” and leaving it to the ag…
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#45
certain classes of individuals eligible for deferred action. See 8 U. S. C. §§ 1154(a)(1)(D)(i)(II), (IV) (certain individuals covered under the Violence Against Women Act are “eligible for deferred action”); Victims of Traffcking and Violence Protection Act of 2000, 114 Stat. 1522 (“ `Any individual de- scribed …
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#46
This nuanced detail indicates that Congress has provided the full panoply of methods it thinks should be available for an alien to seek relief from removal, leaving no discre- Moore v. Regan, 453 U. S. 654, 686 (1981)). If any of these programs had been challenged, it would seem that they would be legally infrm fo…
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#47
can Trucking Assns., Inc., 531 U. S. 457, 468 (2001). And it 7 It is uncontested that deferred action frequently occurs on a case-by- case basis, often justifed on the grounds that the agency lacks resources to remove all removable aliens. Even assuming that these ad hoc exer- cises of discretion are permissible, …
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#48
grams, DACA was implemented without statutory authority. App. 877–878. Not only was this determination correct, but Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 53 Opinion of Thomas, J. it is also dispositive for purposes of our review. “It is axio- matic that an administrative agency's power . . .…
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#49
DACA is the unlawful exercise of power. Now, under the Trump administration, DHS has provided the most compel- ling reason to rescind DACA: The program was unlawful and would force DHS to continue acting unlawfully if it carried the program forward. III The majority's demanding review of DHS' decisionmaking pro…
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#50
(2019) (same with respect to materially identical procedures under the Medicare Act). These procedures specify that the agency “shall” publish a notice of proposed rulemaking in the Federal Register, justify the rule by reference to legal authority, describe “the subjects and issues involved” in the rule, and all…
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#51
brought to this country differently from other classes of aliens who have lived in the country without incident for many years. And, it did not invoke any law authorizing DHS to create such a program beyond its inexplicable asser- tion that DACA was consistent with existing law. Because DHS failed to engage in th…
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#52
At bottom, of course, none of this matters, because DHS did provide a suffcient explanation for its action. DHS' statement that DACA was ultra vires was more than suff- cient to justify its rescission. 12 By requiring more, the ma- jority has distorted the APA review process beyond recog- nition, further burdeni…
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#53
assuming the majority correctly characterizes the Fifth Circuit's opinion, it cites no authority for the proposition that arbitrary and capricious review requires an agency to dissect an unlawful program piece by piece, scrutinizing 13 In my view, even if DACA were permitted under the federal immigra- tion laws a…
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#54
receiving deferred action through DACA from coverage. Ante, at 26–27, n. 5. But that misses the point. Those regulations were promulgated before “anyone with deferred action under the DACA process applie[d]” for those benefts. See 77 Fed. Reg. 52616 (2012). By contrast, DACA recipients have been eligible for and h…
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#55
or “in excess of statutory . . . authority.” 5 U. S. C. §§ 706(2)(A), (C). Accordingly, DHS would simply be engag- ing in yet another exercise of unlawful power if it used reli- ance interests to justify continuing the initially unlawful pro- gram, and a court would be obligated to set aside that action. 15 15 …
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#56
deferred-action programs going forward, which is hardly in keeping with this Court's own understanding that deferred action is an “exercise in administrative discretion” used for administrative “convenience.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 484 (1999). Agencies will likely be less w…
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#57
either the APA or precedent, the majority declares that DHS Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 1 (2020) 63 Opinion of Alito, J. was required to overlook DACA's obvious legal defciencies and provide additional policy reasons and justifcations be- fore restoring the r…
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#58
naugh. See post, at 66–68 (opinion concurring in judgment in part and dissenting in part). Justice Kavanaugh, concurring in the judgment in part and dissenting in part. For the last 20 years, the country has engaged in conse- quential policy, religious, and moral debates about the legal status of millions of you…
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#59
adopted a policy of prosecutorial discretion and nonenforce- ment with respect to a particular class of offenses or individ- uals, the Executive Branch has the legal authority to rescind such a policy and resume enforcing the law enacted by Con- gress. The Executive Branch's exercise of that rescission authority …
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#60
of the arbitrary-and-capricious standard, the Nielsen Memorandum—with its alternative and independent ration- ales and its discussion of reliance—would pass muster as an explanation for the Executive Branch's action. The Nielsen Memorandum was issued nine months after the Duke Memorandum. Under the Administrative…
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#61
it from further articulation of its reasoning. It is a rule di- rected at reviewing courts which forbids judges to uphold agency action on the basis of rationales offered by anyone other than the proper decisionmakers.” Alpharma, Inc. v. Leavitt, 460 F. 3d 1, 6 (2006) (Garland, J.) (internal quotation marks omitt…
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#62
Court today cites none, that has employed the post hoc justi- fcation doctrine to exclude an agency's offcial explanation of an agency rule. For purposes of arbitrary-and-capricious review, it does not matter whether the latest offcial explana- tion was two years ago or three years ago. What matters is whether th…
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#63
rity, 908 F. 3d 476, 521–523 (CA9 2018) (Owens, J., concurring in judg- ment); see also Texas v. United States, 809 F. 3d 134, 196–202 (CA5 2015) (King, J., dissenting); Texas v. United States, 787 F. 3d 733, 770–776 (CA5 2015) (Higginson, J., dissenting); cf. Heckler v. Chaney, 470 U. S. 821, 831– 835 (1985); ICC…