[Josh Blackman] The Solicitor General's Reply Brief Did Not "Reverse Position" on the Nielsen Memorandum

[In the circuit courts, DOJ cited the Nielsen memorandum as providing an "independent" basis to rescind DACA]

The DACA litigation turns, in part, on two separate memoranda issued by two Homeland Security Secretaries: (1) a memorandum from Secretary Elaine Duke, and (2) a memorandum from Secretary Kirstjen Nielsen. The latter document was created after Judge John Bates (DDC) asked the government to provide a further explanation for its decision.

In a recent post, Andy Pincus was surprised at how the Solicitor General characterized the interplay between these memos. (I am grateful to Andy's company and camaraderie as we waited on the cold and rainy bar line together early Tuesday morning.) He wrote:

These questions of accountability and procedural regularity are heightened by the quite surprising reply brief filed by the Solicitor General last week, which reverses position on the Nielsen memo, urging the Court to consider it a new agency action and to uphold DACA's termination based on the policy explanations offered by Secretary Nielsen.

I don't see a reversal at all. I checked the government's briefs in the lower courts, and found very similar arguments. Specifically, DOJ argued that the Nielsen Memorandum provided an "independent" policy justifications to rescind DACA. The Court may find those rationales unpersuasive, or conclude that the Nielsen memo is outside the administrative record, but the government preserved the argument. Here are some excerpts (with my emphasis added).

D.C. Circuit Reply Brief:"[A]s DHS did not need to use notice-and-comment rulemaking to rescind DACA, the Nielsen Memo could stand as an independent basis to rescind DACA even if the Duke Memo were somehow insufficient on its own." (at 22-23)

Second Circuit Reply Brief: "The Nielsen Memo briefly elaborates on the Duke Memo, which the district court already considered, and this Court can and should assess that further explanation itself. Indeed, the Court may consider the Nielsen Memo on its own terms, including insofar as its reasoning goes beyond the Duke Memo, given that, as the district court recognized, rescinding DACA does not require notice-and-comment rulemaking." (at 3-4)

These briefs were consistent with how SG Francisco presented his argument before the Court. Indeed, he used the phrase "independent" several times:

GENERAL FRANCISCO: Sure. For a couple of reasons, Your Honor. First, because she sets forth separate and independent bases justifying the rescission: first, her belief that it's illegal; second, her belief that there are serious doubts about its illegality; and, third, her conclusion that, as a matter of enforcement policy, the Department of Homeland Security is against these kinds of broad-based non-enforcement decisions.

GENERAL FRANCISCO: –that's precisely what Secretary Nielsen's memo did. It did two things. First, it explained the basis for Secretary Nielsen –Secretary Duke's decision, but, secondly, it set forth her own independent judgment.

GENERAL FRANCISCO: I –I simply disagree with that. When she specifically says that she is setting forth separate, separate and independent grounds justifying the rescission, I don't think that there's any fair way to read that but by saying that she would have rescinded it based on any of the independent grounds, which brings me

The SG's reply brief did not "reverse position" on the Nielsen memorandum.