Immigration Law

Trump Tries to Bypass Lower Courts on DACA

Amy Howe, SCOTUSBlog, Nov. 5, 2018 - "The federal government tonight returned to the Supreme Court, asking it once again to intervene in a dispute over the Trump administration’s decision to end the program known as “Deferred Action for Childhood Arrivals,” which allows undocumented immigrants who came to the United States as children to apply for protection from deportation.

The Obama administration established DACA in 2012. But in September 2017, the the Trump administration announced its plans to terminate DACA, making some of the 800,000 young adults who qualified for the program eligible again for deportation.

In January, a federal judge in California barred the federal government from ending DACA. The Justice Department appealed that decision to the U.S. Court of Appeals for the 9th Circuit, but it also asked the Supreme Court to weigh in even before the 9th Circuit ruled — a procedure known as “cert before judgment.”

Requests to grant review before judgment are unusual, and they are even more rarely granted. In a brief two-sentence order in February, the court rejected the government’s request “without prejudice” – leaving the government the option to file another petition for review later on, presumably after the 9th Circuit ruled on its appeal. At the time, the justices added what seemed to be a caveat to their ruling, writing that although they were turning down the government’s application, it “is assumed that the Court of Appeals will proceed expeditiously to decide this case.”

Tonight, the federal government went back to the Supreme Court, asking the justices to step in before three different courts of appeals can rule in the dispute over DACA. In one of the briefs (all of which were signed by U.S. Solicitor General Noel Francisco), the government told the justices that the 9th Circuit heard oral argument in the case on May 15 but has not yet issued its decision. The other two cases are not as far along: The federal government filed its notice of appeal from the decision against it in the U.S. District Court for the District of Columbia in August, while oral argument has been scheduled in the U.S. Court of Appeals for the 2nd Circuit for January 2019.

The federal government has asked the Supreme Court to take up two related questions. The first is whether the Trump administration’s decision to end DACA is something that courts can review at all, or whether it is instead the kind of decision left to administrative agencies. The second question is whether, even if courts can review the decision to end DACA, that decision violated various laws governing administrative actions.

The federal government urged the justices to intervene now, emphasizing that the Supreme Court is going to have to step in eventually. But unless it does so now, it could be “at least another year” before the Supreme Court rules on the DACA termination dispute. Until then, the government will have to maintain a policy that it believes is illegal and “sanctions the ongoing violation of federal law by more than half a million people.” The government also asked the court to review all three cases together, but it noted that it had brought them all to the Supreme Court at the same time to ensure that at least one of them would be suitable for review.

Under the Supreme Court’s normal procedures, the challengers in each case would have 30 days to file their briefs opposing review. On that schedule, if the justices were to grant review, the court could hear oral argument and decide the dispute before the end of the current term in late June."