In 2020, the U.S. Supreme Court ruled on the Department of Homeland Security v. Regents of the University of California case. The case concerned the rescission of the Deferred Action for Childhood Arrivals (“DACA”) policy, an issue that sparked the interest of a wide range of amicus curiae, including those in support of the policy. Using Critical Race Theory (“CRT”) and UndocuCrit Theory in an integrated framework, this Article interrogates the social context amici presented in their amicus briefs to see what we could learn about DACA from the perspective of amici. This Article demonstrates that amici highlighted the importance and impact of the policy to all sectors of society, but, in doing so, largely emphasized the substantial gains and potential losses to the country and U.S. citizens, de-centering DACA recipients. The social context did not fully humanize recipients before the Court. Building upon this analysis, this Article discusses the implications for legal frameworks with social context, institutional/disciplinary norms, and comprehensive immigration reform.
Law is intricately connected to society, shaping social institutions and people’s daily lives.[1] Interrogating the relationship between law and society allows us to be critical of the law and to identify its limitations and wide ranging social implications.[2] Legal frameworks with social context—frameworks that embed and require consideration of social or public policy concerns within their analytic frameworks—allow us to interrogate this relationship.[3] They provide an opportunity for courts and advocates to engage with the real life implications of a given case.[4] Presumably, the consideration of a more holistic depiction of the interests at stake can humanize the parties before the court and, thereby, lead to more just outcomes.[5]
Humanizing the parties before the court is particularly instrumental in the context of civil rights, such as immigration, where the outcomes of a case may lead to life altering consequences, such as removal from the United States.[6] One such framework that centralizes the human impact in the immigration field is the framework of arbitrary and capricious agency action.[7] Governed by the Administrative Procedures Act (“APA”), federal agencies making policy changes must engage in “reasoned
[decision-making],” accounting for the reliance interests that policies engender.[8] Agencies that fail to engage in reasoned decision-making act in an arbitrary and capricious manner.[9]
In June 2020, the U.S. Supreme Court ruled on whether the U.S. Department of Homeland Security’s (“DHS”) rescission of DACA was arbitrary and capricious.[10] The case (or the “DACA case”) drew national attention and attracted amici across the country who weighed in on whether DHS failed to consider the reliance interests at stake.[11] The case before the Court drew an array of diverse amici, providing an opportunity to examine, through from a critical perspective, the application of a legal framework with social context.[12] Using Derrick Bell’s concept of interest convergence[13] and Carlos Aguilar’s concept of liminality,[14] this study is guided by one question: As an application of the arbitrary and capricious framework from the APA, what can we learn about DACA’s significance, impact, and the interests at stake through amici’s representation of reliance interests in Department of Homeland Security v. Regents of the University of California?[15]
Through our analysis, we found that though the application of the arbitrary and capricious framework—a legal framework with social context—brought to the fore DACA’s significance, importance, impact, and the interests at stake, amici focused on how the interests converged with the interests of the white majority.[16] Without DACA, recipients would live in further social marginalization without legal protection from deportation and the ability to integrate into society.[17] DACA marginally improved recipients’ liminal legal status.[18] But, more frequently, amici extensively detailed the gains to the country, which were substantial and reverberated across all sectors.[19] As reflected in a rich legacy of critical scholarship, in instances when the interests of marginalized communities converge with the interests of white people, the interests and gains are provisional and will be sacrificed or abrogated when such remedies threaten the interests of the white majority.[20]
DACA creates a provisional remedy and benefit to undocumented immigrants. On the one hand, they have an opportunity to work and partially integrate into society, while providing substantial gains to the United States.[21] On the other hand, they live in a perpetual state of liminality, in
two-year increments, at the political whims of the federal executive branch, and without legal permanency.[22] The legal framework in the DACA case did not fully humanize the immigrant community;[23] according to amici, undocumented immigrants were deserving of protection because the interests at stake largely benefit the United States and the country would suffer detrimental effects if recipients lost their status.[24]
We begin our discussion with Part I, in which we detail the creation and rescission of DACA and track the ongoing litigation.[25] In Part II, we discuss the concept of reliance interests, a legal concept that is crucial to the arbitrary and capricious framework.[26] Then, we turn to a review of the extant legal and social science research regarding DACA and its impact in Part III.[27] Next, we turn to the details of this study. We present the lens and design of this study in Part IV[28] and present our findings in Part V.[29] We conclude with a discussion of the implications of this study in Part VI.[30] By analyzing the arbitrary and capricious framework through a critical lens, we aim to unpack how this framework furthers notions of justice for DACA recipients and to identify areas in the framework that fall short of this goal.[31]
[1]. See Susan S. Silbey, A Sociological Interpretation of the Relationship Between Law and Society, in Law and the Ordering of Our Life Together 1, 5 (Richard John Neuhaus ed., 1989) (“[T]hrough a dialectical process, humans produce a social world which they then experience as something other than human. Consequently, the institutional world thus produced ‘requires legitimation, that is, ways by which it can be “explained” and justified’ to each new generation that encounters it as made rather than in the making. From this point of view, the law is a fundamental social institution, providing legitimations for the social order or stories that explain our lives to ourselves.” (footnotes omitted)).
[2]. See infra Section IV.A.1.
[3]. For example, contract common law has long developed consideration of reliance interests. See L. L. Fuller & William R. Perdue, Jr., The Reliance Interest in Contract Damages, 46 Yale L.J. 52 passim (1936); see also Reliance Damages, Legal Info. Inst., https://www.law.cornell.edu/wex/reliance_dama
ges [https://perma.cc/7SEA-H7UJ].
[4]. See, e.g., Maria M. Lewis & Suzanne E. Eckes, Storytelling, Leadership, and the Law: Using Amicus Briefs to Understand the Impact of School District Policies and Practices Related to Transgender Student Inclusion, 56 Educ. Admin. Q. 46, 46 (2020) (reviewing amicus briefs “to better understand the human impact of policies and practices related to transgender student inclusion”).
[5]. See, e.g., Brown v. Board of Educ., 347 U.S. 483, 494 n.11 (1954) (considering the psychological, social, and emotional impact of racial segregation on Black children that informed the U.S. Supreme Court’s ruling, which found racial segregation in schools to be unconstitutional).
[6]. See, e.g., Lewis & Eckes, supra note 4; Donald Kerwin, Daniela Alulema & Mike Nicholson, Communities in Crisis: Interior Removals and Their Human Consequences, 6 J. on Migration & Hum. Sec. 226, 227 (2018).
[8]. Michigan v. EPA, 576 U.S. 743, 750 (2015) (internal quotation marks omitted) (citing Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998)); see also infra Part II.
[9]. § 706(2)(A); see, e.g., Summers v. Touchpoint Health Plan, Inc., 749 N.W.2d 182, 188 (Wis. 2008).
[10]. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1915–16 (2020).
[11]. Stakeholders submitted a total of forty-six briefs after the U.S. Supreme Court granted certiorari in the case. Amici represented a wide array of sectors and professions, including government officials, colleges and universities, research organizations, and business groups. Appendix A includes a list of all categories, demonstrating the wide interest the case generated.
[13]. Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518 passim (1980).
[14]. Carlos Aguilar, Undocumented Critical Theory, 19 Cultural Stud. ↔ Critical Methodologies 152 passim (2019).
[15]. This study is part of a larger research project in which we applied Critical Race Theory and UndocuCrit to analyze amicus briefs before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020).
[16]. See Bell, supra note 13.
[17]. E.g., Brief of Amici Curiae the National Association of Home Builders et al. in Support of Respondents, Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020) (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Nat’l Ass’n of Home Builders et al.]; Brief of United We Dream et al. in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for United We Dream et al.]; Brief of American Council on Education et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Am. Council on Educ. et al.]; Brief of Amici Curiae Service Employees International Union et al. in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Serv. Emp. Int’l Union et al.]; Brief of the United States Conference of Catholic Bishops et al. in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for U.S. Catholic Bishops et al.]; Brief of Amici Curiae 109 Cities et al. in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for 109 Cities et al.]; Brief of National School Boards Ass’n et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Nat’l Sch. Bds. Ass’n et al.]; Brief of 143 U.S. Business Ass’ns & Cos. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for 143 Business Ass’ns & Cos.]; Brief for Amici Curiae Ass’n of American Medical Colleges, et al. in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Ass’n Am. Med. Colls. et al.]; Brief for Amici Curiae Nineteen Colleges & Universities in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Nineteen Colls. & Universities]; Brief of Nonprofit Legal Services Organizations as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Nonprofit Legal Servs. Orgs.]; Brief of Alianza Americas et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Alianza Ams. et al.]; Brief for Amici Curiae Institutions of Higher Education in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Inst. of Higher Educ.]; Brief for the State of Nevada et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for State of Nev. et al.]; Brief of Teach for America, Inc. as Amicus Curiae in Support of Respondents & Affirmance, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Teach for Am.]; Brief of Tim Cook et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Tim Cook et al.]; Brief for Lawyers’ Committee for Civil Rights Under Law et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Laws.’ Comm. for C.R. Under L. et al.]; Amici Curiae Brief of Empirical Scholars in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Empirical Scholars]; Brief of Amicus Curiae Government of the United Mexican States in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Gov’t of Mexican States]; Brief for the American Professional Society on the Abuse of Children et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Am. Prof’l Soc’y on Abuse of Children et al.]; Brief for Former Service Secretaries, Modern Military Association of America et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Former Serv. Sec’ys et al.] (describing the economic marginalization recipients would experience without protection); Brief Amici Curiae of the National Education Ass’n and National PTA in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Nat’l Educ. Ass’n & Nat’l PTA]; Brief of the National Queer Asian Pacific Islander Alliance et al. as Amici Curiae in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for NQAPIA et al.]; Brief of Amici Curiae Current & Former Prosecutors & Law Enforcement Leaders in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for Current & Former Prosecutors & L. Enf’t]; Brief of Amici Curiae 127 Religious Organizations in Support of Respondents, Dep’t of Homeland Sec., 140 S. Ct. 1891 (Nos. 18-587, 18-588, and 18-589) [hereinafter Brief for 127 Religious Orgs.].
[18]. See Benjamin J. Roth, The Double Bind of DACA: Exploring the Legal Violence of Liminal Status for Undocumented Youth, 42 Ethnic & Racial Stud. 2548 passim (2019); Edelina M. Burciaga & Aaron Malone, Intensified Liminal Legality: The Impact of the DACA Rescission for Undocumented Young Adults in Colorado, 46 Law & Soc. Inquiry 1092 passim (2021); Erin R. Hamilton, Caitlin Patler & Robin Savinar, Transition into Liminal Legality: DACA’s Mixed Impacts on Education and Employment Among Young Adult Immigrants in California, 68 Soc. Probs. 675 passim (2020).
[19]. E.g., Brief for Serv. Emp. Int’l Union et al., supra note 17, at 17–18 (detailing the positive economic effects of DACA); Brief for 109 Cities et al., supra note 17, at 6–16, 22 (detailing the positive impact of DACA on state governments).
[20]. Cynthia Lee, Cultural Convergence: Interest Convergence Theory Meets the Cultural Defense, 49 Ariz. L. Rev. 911, 924 (2007); see also Bell, supra note 13; Taharee Apirom Jackson, Which Interests Are Served by the Principle of Interest Convergence? Whiteness, Collective Trauma, and the Case for Anti‐Racism, 14 Race Ethnicity & Educ. 435 passim (2011).
[21]. Roberto G. Gonzales, Lives in Limbo: Undocumented and Coming of Age in America 8-10 (2016); Roberto G. Gonzales, Veronica Terriquez & Stephen P. Ruszczyk, Becoming DACAmented: Assessing the Short-Term Benefits of Deferred Action for Childhood Arrivals (DACA), 58 Am. Behav. Scientist 1852, 1853 (2014); Roth, supra note 18, at 2549-50; see also infra Part V.
[22]. Gonzales, supra note 21, at 8–10; see also infra Section IV.A.3; infra Part V.
* Assistant Professor of Educational Leadership and Higher Education and Human Development; Assistant Professor (by courtesy), College of Law, Boston University; Ph.D. 2018, Penn State University; J.D. 2018, Penn State Law; B.A. 2013, mathematics, summa cum laude, Texas A&M International University.
The authors would like to thank the Boston College Center for Human Rights and International Justice for supporting the research fellows and team members Grace Cavanaugh, Emma Kane, and Tugce Tumer. We also extend our gratitude to Rebecca Mattson, law librarian at Penn State Law, and Luke Nelson and Michael Dressler, Jr., Penn State Law students, for their invaluable research assistance in finalizing this manuscript.
†. Associate Professor of Education Policy Studies and an affiliate faculty member with Penn State Law; Ph.D. 2014, University of Wisconsin, Madison; J.D. 2012, University of Wisconsin Law School; B.A. 2006, law, letters, and society, University of Chicago.
‡. Fulbright Scholar, Spain, 2021; B.A. 2021, international relations, magna cum laude, Boston College.
††. Ph.D., higher education, Boston College; M.A. 2016, higher education, Boston College; B.A. 2013, psychology, magna cum laude, Adrian College.