Government asks Justices to settle DACA quickly

With time running out for the Supreme Court to take on new cases in the current term, the Trump Administration asked Thursday evening that one more case be taken up swiftly: the controversy over the planned shutdown of the “DACA” program that has spared nearly 700,000 undocumented young immigrants from being deported.  (DACA is short for the Deferred Action for Childhood Arrivals program, adopted by the Obama Administration and in effect for five years.)

In an appeal filed the night before the Justices gather for the final session at which they will consider pleas to hear new cases during the current term, the Administration argued that it is vital that the DACA dispute be resolved by the Justices without even waiting for the usual review to be completed in lower courts.

At issue are rulings by a federal trial judge, U.S. District Judge William Alsup of San Francisco, barring the Administration from closing down the program as of March 5.  Under the judge’s temporary order, the program could not be stopped until after the legal challenge to it is settled in the courts.

The Administration has challenged Judge Alsup’s order in the U.S. Court of Appeals for the Ninth Circuit, but its appeal asked the Justices specifically to bypass that step and decide the case themselves, and do so explicitly before the current term ends, expected in late June.

In the meantime, the Administration will continue to accept requests from young immigrants covered by the program for delayed deportation and the right to get jobs and study, and remain in the U.S.  The program will continue because Judge Alsup ordered that, and because the Administration chose expressly not to ask the Supreme Court to put the judge’s order on hold while the case is heard and decided.

In the appeal, Justice Department lawyers argued that, if the Supreme Court does not intervene immediately to settle the controversy, Judge Alsup’s order keeping DACA intact will stay in operation “at least for months” while the regular appeal process unfolded.   If the government now pursued its case in the Circuit Court, and that court did not overturn the judge’s order, the realities of the Supreme Court’s calendar is such that the program would be kept going “for more than a year” without a final decision to settle the legality of shutting it down.

The document said that some of the harms that the government sees as a result of Judge Alsup’s order could be eased if the Administration asked for and got a temporary delay by the Supreme Court, but it added that that would only mean lingering uncertainty for all sides in the controversy.  The government would be caught up in “protracted litigation” with “disruptive effects” on everyone involved, the government lawyers said.

In taking the case to the Justices, the Administration asked for a ruling that the decision to end the DACA program as of March 5 was the kind of exercise of discretion that should not even be open to challenge in the courts. The decision to shut down the program was simply done as a part of federal immigration officials’ discretion about how to enforce the laws requiring deportation of immigrants who entered the U.S. illegally, the appeal contended. (The younger immigrants covered by DACA protection entered this country illegally, when they were children brought here by their parents without a right to enter.   They are customarily referred to as “dreamers” because of their aspiration to grow up in America.

If the Justices choose not to throw out the court challenge to the shutdown of DACA, the appeal went on, they should at least rule that the decision did not violate any federal immigration or other laws – as Judge Alsup had found.

The Alsup order keeping DACA intact for the time being was nationwide in scope.  The Administration argued in its appeal that the judge did not have the authority to make his ruling so broad.

If the Supreme Court considers the government appeal at its private conference on Friday, it is likely to set a date for a response by the challengers who had gone to court to overturn the government plan to end DACA.   If the case is going to be decided during the current term, it would have to be put on an expedited schedule, for filing of briefs and holding a hearing.

It would be highly unusual for the Court to go ahead and grant review without hearing from the challengers; that is the normal procedure.

The Supreme Court does not have to wait for a case to make its way through all lower levels of the federal court system, but it is rare for them to bypass those steps and pull up a case for their own review.

The Administration filed its appeal on Thursday evening just as Congress was getting tied up more tightly in disputes over whether the lawmakers should take some action to save the DACA program from ending.   DACA has very widespread support in both houses of Congress, but the question of salvaging the program has gotten caught up in a fierce legislative battle over the federal budget and over the prospect that the government may be shut down this weekend if there is no way out of the budget impasse.

If Congress does not find a way to keep DACA intact, then the court fight that has how moved to the Supreme Court may be the only way to settle the program’s future.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.