Is DACA stuck in limbo at the Supreme Court?

Last Friday, the Supreme Court made news by not taking action on the high-profile Deferred Action for Childhood Arrivals (or DACA) appeal under its consideration. But does that mean the case won’t be accepted and decided before late June?

The deadline for a decision to accept the DACA case for arguments its current term seemed to be Friday, January 18, at least based on how the Justices have accepted cases in recent year. Last year, the Court took Trump v. Hawaii, a case about presidential powers, on January 19, 2018, right after its third monthly conference. Arguments were heard in late April 2018.  Three days after taking Trump v. Hawaii, the Court accepted Weyerhaeuser Company v. United States Fish and Wildlife Service (also known as the Dusky Gopher Frog case). Arguments weren’t heard in the Weyerhaeuser case until the following October.

Back on January 19, 2017, the Court accepted two cases for arguments but scheduled them in two different terms. One case, Bristol-Myers Squibb Co. v. Superior Court of California, was heard in April 2017, while the other, District of Columbia v. Wesby, was scheduled for the first week of October 2017.

Then on January 19, 2016, the Justices accepted United States v. Texas, a case about the Deferred Action for Parents of Americans (DAPA) program, three days after the third Friday in January; it was argued in April 2016. And on January 23, 2015, the Court accepted two cases. The death penalty case Glossip v. Gross was argued in April 2015, while OBB Personenverkehr AG v. Sachs was scheduled for the Court’s next term in October 2015.

While it is very difficult to read Supreme Court tea leaves, at least in the past four completed terms, the Court has finalized its current-term argument slate right after concluding its third conference, but it also has waited until January 23 to accept a case for its current term.

That said, it is possible for the Court to grant review in the current term, ending in late June, for any number of high-profile cases it has been considering. In addition to DACA, the Justices have cases in front of them involving President Trump’s transgender in the military directive, workplace discrimination, abortion, and the Second Amendment.

Also, the Justices likely will need to take some action on a case already accepted about the Trump administration’s request to add a citizenship question to the 2020 census. The Court canceled arguments last week set for February on a preliminary issue in the case after a federal judge struck down the census question. The Justice Department could skip the appeals process and ask the Justices to take the new census case directly, since the Commerce Department is set to publish census questionnaires starting in June 2019.

The DACA case has been at the Court since November 5, 2018, when the Justice Department appealed three lower federal trial court rulings directly to the Supreme Court without waiting for a three-judge Ninth Circuit Court of Appeals panel to issue a decision. Just three days later, in one of the three cases, a divided Ninth Circuit panel in Department of Homeland Security v. Regents of the University of California upheld a nationwide injunction blocking the Trump administration’s efforts to end DACA. The Justice Department formally appealed the Ninth Circuit ruling on November 19. Since then, court observers have speculated if and when the Court would take on a case of such national importance.

In terms of case load, according to the SCOTUSblog website, the Court has 22 cases it has accepted and needs to schedule for arguments for March 2019 and April 2019. Last year, the Justices heard 20 cases in March and April, but in 2017 the Supreme Court heard 25 cases and in 2016 it heard 24 cases in those periods.

Scott Bomboy is the editor in chief of the National Constitution Center.