KNOCKING AWAY A cornerstone of President Donald Trump‘s immigration plan, the Supreme Court on Monday rejected the president’s request to go forward with the deportation of children brought to the U.S. illegally by their parents.
After at least two days of deliberation, the high court refused to overturn a lower-court ruling which stops Trump from repealing Deferred Action for Childhood Arrivals – an Obama-era federal program allowing those children and young adults to legally stay in the country under certain conditions.
By denying the request for an emergency ruling, the justices likely have kept Trump from meeting next week’s deadline to begin deporting DACA recipients, whose fates now hinge on the twin lawsuits civil rights advocates filed after the president announced he would undo DACA. The high court also gave the young people a big reprieve of sorts: It could take between several months and as long as a year for the court cases to be resolved.
Moreover, the ruling also undermines – for now – Trump’s threat to deport the young adults, leverage he and fellow Republicans used against Democrats in negotiations over an immigration reform bill.
The court dismissed the White House’s request “without prejudice,” though the justices’ written notice hinted that they may eventually get the last word on the case and that the administration has one short-term option: “It is assumed that the Court of Appeals will proceed expeditiously to decide this case.”
The White House wanted the high court to overturn a ruling by U.S. District Judge William Alsup of the Northern District of California. In January, the judge put on hold the administration’s plan to end DACA until a pair of lawsuits challenging the White House – one in California, the other in New York – are resolved in federal court.
Alsup also ruled that the government must resume accepting DACA renewal applications while the lawsuit before him, brought by the University of California system against the Department of Homeland Security, proceeds in federal court. A judge in Brooklyn hearing the New York lawsuit issued a ruling similar to Alsup’s last week.
The central issue isn’t the legality of DACA but the propriety of the Justice Department’s plan for shutting it down. The plaintiffs argue that eliminating DACA is an “arbitrary and capricious” decision that violates federal law.
However, rather than take the next step in the process and appeal Alsup’s decision to the U.S. Court of Appeals for the 9th Circuit, the White House leapfrogged to the Supreme Court, asking for a broader ruling about the repeal in general. The move is presumably to head off the legal and jurisdictional ping-pong that occurred during Trump’s executive order banning immigrants from Muslim-majority countries in the name of national security.
Noel Francisco, Trump’s solicitor general, had asked the high court to review and decide the legality of the Trump administration’s Sept. 5 decision to rescind the DACA program. The request urged the high court to act before the 9th Circuit ruled on the government’s appeal of Alsup’s preliminary injunction – a rare move that even more rarely succeeds.
Devin O’Malley, a Justice Department spokesman, acknowledged in a statement Monday that it was a long-shot strategy.
“While we were hopeful for a different outcome, the Supreme Court very rarely grants certiorari before judgment, though in our view it was warranted for the extraordinary injunction requiring the Department of Homeland Security to maintain DACA,” O’Malley said in a statement. “We will continue to defend DHS’ lawful authority to wind down DACA in an orderly manner.”
But advocates for DACA recipients declared that Trump’s decision to eliminate the plan was malicious and won’t stand up to judicial scrutiny.
“Two federal district courts have now recognized that the Trump administration’s abrupt decision to end the program was unlawful,” Theodore J. Boutrous, an attorney fighting to uphold DACA, said in a statement “We are confident that the court of appeals will reach the same conclusion and will affirm the district court’s injunction that has blocked the rescission from taking effect.”
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The University of California Regents, which brought the West Coast lawsuit, agreed.
In going directly to the Supreme Court, the White House tried to “short circuit standard appellate procedure and attempt to skip the U.S. Court of Appeals – a precipitous approach that echoes the government’s procedurally improper rescission of DACA at the heart of this case,” the Regents said in a statement Monday. “Now that the administration’s extraordinary maneuver has been rightfully rejected, we look forward to defending U.S. District Judge Alsup’s injunction in the Court of Appeals.”
In his 49-page opinion, Alsup, the San Francisco judge, said the plaintiffs “have shown that they are likely to succeed on the merits of their claim that the rescission was arbitrary and capricious.” A nationwide injunction, he wrote, was “appropriate” because “our country has a strong interest in the uniform application of immigration law and policy.”
“Plaintiffs have established injury that reaches beyond the geographical bounds of the Northern District of California. The problem affects every state and territory of the United States,” he said.
Despite the encouraging signs, immigration advocates say they’d prefer to have a legislative fix to the problem, rather than depend on the courts to resolve it. But Congress and the White House aren’t anywhere close to a legislative solution, and last month’s momentum for a DACA fix seems to have stalled.
While it’s unlikely the administration will meet its March 5 goal, and the twin cases may take months to resolve, the fate of DACA recipients is still in limbo.
And although the conservative-majority Supreme Court didn’t agree with the White House this time, Monday probably won’t be the last time the justices have the DACA case on the docket – particularly if, as expected, Trump decides to appeal any lower-court losses to the nation’s highest court.