The Supreme Court’s options on DACA
On Friday evening, the Supreme Court closed up shop for the holiday weekend without doing anything about DACA – that is, the Trump Administration’s appeal seeking review of its decision to shut down the program of “Deferred Action for Childhood Arrivals.” That program, in effect for well over five years, has allowed nearly 800,000 young undocumented immigrants to avoid deportation – a fate they otherwise could confront because they do not have formal legal approval to remain.
They were brought to this country when they were children by their parents, and never had a legal right to enter or lost that right by over-staying temporary visas.
Because the Justices are now past the normal cutoff date for accepting new cases for decision in the current term, the DACA case could only be reviewed on an expedited schedule – a procedure not often used by the Court. That is just what the Administration requested.
The Justices had the case on their agenda for discussion at a closed-door conference last Friday, but they ended the day with no announced action. The Court will be on holiday on Monday, so the next opportunity for action will be Tuesday morning with the release of orders revealing what the Justices did at their Friday meeting.
DACA recipients and their supporters had hoped that Congress would step in to protect them from deportation, but that effort failed in a series of crucial votes in the Senate last Thursday. The Administration reportedly lobbied heavily against all alternatives except its own, but that, too, was voted down.
Congress then went on a holiday recess, with no firm indication of where proposed DACA legislation would go once the lawmakers return. For now, the fate of DACA may depend almost entirely upon the courts. Under the Administration plan, DACA would shut down on March 5, but the closing has been put off by two lower-court judges’ orders. One of those, by a San Francisco judge, is at issue now before the Justices.
It is doubtful that the Supreme Court was paying close attention to what was happening in Congress, so that very likely had little or no impact on the Justices’ discussion of the legal side of the controversy at their Friday meeting.
The legal dispute does not depend, at this point, on the ability or willingness of Congress to act. Lawsuits against the Administration plan to end DACA are going ahead in lower federal courts, without interruption, while the Supreme Court and Congress weigh their separate roles. The Administration has not sought to delay lower court action while it sought help from the Supreme Court.
Without an announcement on Friday of action on the controversy by the Justices, there are several ways to interpret that in the meantime. Here are some of the possible explanations for what is going on at the Court, and why each might or might not occur:
First, the Court may say nothing at all when new orders come out at 9:30 a.m. Tuesday. That could occur if the Justices have not yet made up their minds. It also might occur if the Court had voted last Friday against review, but some Justices wanted time to write dissents protesting that refusal. A denial of review would not be a real surprise, since the expedited procedure is so seldom used, and especially since the Administration did not seek to put everything on hold until the Justices could decide. A denial of review would result from a failure to get at least four Justices’ votes in favor.
Second, at the opposite extreme of options, the Justices may have voted to decide the case right away by what is called a summary decision – that is, without further written briefs and without a hearing. That could occur if five Justices agreed that the lower-court judge in the case was clearly in error in blocking the shutdown of DACA while challenges to it continue in lower courts. Such a ruling would be a rarity, especially when the case reached the Court in a preliminary way, without a definitive, final decision in any lower court, and even without any review yet at the federal appeals court level.
If such a summary decision has resulted, it almost certainly would be met with dissents by some Justices, and so there may be no announcement of it while dissenting opinions are prepared.
Third, if nothing emerges on DACA at 9:30 a.m. Tuesday, that would not rule out something happening later in the day. If the Justices have not made up their minds, they could schedule a further look at the case at their next private conference, set for next Friday. If that happens, it should be disclosed Tuesday afternoon. The chances of that occurring do not seem great, since time is so short for review if it is to occur this term.
Fourth, the Court could grant review – either this week or later – but put it on the normal schedule, meaning a decision would not occur until the next term. While that is possible, it seems highly unlikely, because the Court has already shown some interest in speeding up the case, at least prior to their discussion of it last Friday. Such a delay would leave the DACA recipients in a state of legal limbo for many months, awaiting the outcome in federal appeals courts and the possibility — however remote — of some action in Congress.
And, fifth, the Court could do as the Administration asked, granting review and setting a faster-than-normal schedule for filing briefs, with a hearing set for late April. If the Justices were closely concerned about the time available, they might have done this on Friday afternoon. The fact that they did not may reduce the likelihood of its happening. Some of the urgency may have gone out of the Administration appeal when it opted not to seek a postponement of lower court review. Also working against this option is the rarity of actions by the Justices in bypassing the lower appeals court process to engage in direct review of trial court rulings. However, working in favor of the Administration is the fact that it is the government making the request; the Justices tend to treat another branch of the national government with special respect.
Meanwhile, the California judge’s order temporarily extending DACA protection to the young immigrants is pending review in the U.S. Court of Appeals for the Ninth Circuit. That court has issued an expedited schedule that would have the written legal briefs completed by early May. The Administration filed its opening brief in that court last week.
So far, the Administration has taken no steps to challenge a ruling last week by a federal judge in Brooklyn, N.Y., temporarily continuing DACA in force pending further court review. Any appeal by the Administration in that case would go to the U.S. Court of Appeals for the Second Circuit – unless the Administration attempted to get that case reviewed directly by the Supreme Court.
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.