Several individuals, a non-profit organization, 16 states, and the District of Columbia, filed suit challenging the Trump Administration’s termination of the Deferred Action for Childhood Arrivals program (DACA). A federal district court temporarily enjoined the administration’s action, and the government appealed to the U.S. Court of Appeals for the Second Circuit. On appeal, one of the government’s principal arguments was that the termination of the DACA program is an unreviewable exercise of enforcement discretion under the Supreme Court’s decision in Heckler v. Chaney. Public Citizen, joined by the Natural Resources Defense Council, filed an amicus brief arguing that the government’s position reflects a radical departure from the prevailing view of Chaney, under which general policies governing enforcement are reviewable, and only individual enforcement decisions are shielded from review.
Before the Second Circuit could decide the case, the federal government defendants successfully petitioned the Supreme Court for a writ of certiorari before judgment in the court of appeals. As a result, the appeal was transferred to the Supreme Court, bypassing the court of appeals. The case was consolidated in the Supreme Court with cases originating in the D.C. and Ninth Circuits that likewise challenge the rescission of DACA. In the Supreme Court, the federal government again asserted that the DACA rescission is unreviewable under Heckler v. Chaney. Public Citizen, on behalf of itself, NRDC, and the ACLU, filed an amicus brief explaining that the government’s position runs contrary to decades of precedent under which the holding in Chaney applies to an agency’s exercise of discretion not to bring an enforcement action and does not shield an agency’s adoption of enforcement policies from review under the Administrative Procedure Act.