Constitution Daily

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Government asks Supreme Court to shut down DACA

November 6, 2018 by Lyle Denniston


Blocked by three lower-court orders from shutting down the six-year-old “DACA” program that protects young, undocumented immigrants from being deported, the Trump Administration asked the Supreme Court on Monday to end the program and to do so in the Court’s current term.

The “DACA” program – formally, Deferred Action for Childhood Arrivals – was created by the Obama Administration, and has spared nearly 700,000 immigrant youths from being sent back to countries from which they came as children with their parents. Aside from the DACA program, the youths have no legal right to remain in the country because they either entered illegally or over-stayed entry visas and thus became illegal residents.

DACA does not provide a path to U.S. citizenship but does allow those accepted into the program to get renewable two-year permits to remain in the country, to go to school, to work and to share in some federal benefit programs. Many of the young people have become fully integrated into their communities.

Administration lawyers on Monday filed three separate appeals, each asking the Court to review and overturn the lower court orders that have kept the program intact and urging the Justices to do so without waiting for rulings by federal appeals courts, where those three cases are now under review.

The Administration began its effort to close out the program 14 months ago, but the plan met prompt challenges in federal trial courts across the nation, resulting in orders at least temporarily requiring the government to continue operating the program as is. After each of those cases resulted in nationwide orders against the Administration, the government filed appeals in three separate appeals courts.

Because none of those appeals courts has yet ruled, the Administration decided last month that it could not wait for that to happen because, it concluded, time was running out for the Supreme Court to review and decide during the current term the legality of the shutdown plan. Monday’s filings followed up with the actual appeals reaching the Court.

Although each of the appeals raises the same questions, the Administration asked the Justices to grant review of all three together. That, it noted, would put all of the cases before the Supreme Court, pulling them away from the appeals courts so that the lower courts could not then go ahead and rule on the program while the Supreme Court’s review continued.

Each of the new filings raised these two questions: first, since the government regards DACA as a program that resulted simply from an Executive Branch policy on who should be deported and when, whether the decision to end the program is subject to any review by the courts (the Administration argues that there is no role for the courts); and, second, even if the courts do have authority to rule on the program, whether the plan to shut it down is valid (the Administration contends that the program has never been legal, from its very inception).

Behind those two issues are a series of individual questions about the constitutionality of the shutdown and its legality under federal immigration and court procedure laws.

The Administration had tried previously to get the Supreme Court to review the shutdown plan prior to a ruling at the appeals court level, but the Justices refused last February to take on a case that began in federal court in San Francisco. The Supreme Court said then that the Justices were assuming that the lower court – the U.S. Court of Appeals for the Ninth Circuit – would “proceed expeditiously to decide the case.”

That is the lead case that the Administration appealed to the Justices on Monday. The document noted that the Ninth Circuit Court had held a hearing on May 15, but has not yet issued any ruling.

The other two cases that are pending now in two other U.S. Courts of Appeals – one in the Second Circuit in New York City and one in the District of Columbia Circuit in Washington, D.C.  Neither of those appeals courts has held a hearing on the government’s appeal.

The Supreme Court two years ago split 4-to-4 in upholding a lower-court ruling that struck down another Obama Administration program, involving delayed deportation of undocumented parents living in the U.S. whose children are either U.S. citizens or have a permanent legal right to live in the U.S. That program never went into effect because it was successfully challenged by more than 20 states.

The legality of the separate DACA program for undocumented immigrant youths had never been tested in court (although an expansion of that program fell with the court rulings against the program for undocumented parents).

After the Supreme Court’s evenly divided order in 2016, a group of states filed a lawsuit in Texas, claiming that the DACA program, as originally drawn up by the Obama Administration, was illegal under immigration laws and was unconstitutional. The trial judge refused to rule on that challenge, concluding that the states had waited too long to challenge the original DACA program.

Even so, in response to that challenge to DACA, the Trump Administration concluded that it could not defend the legality of DACA in its original form.

The decision to close it down was made in September last year, but the government decided that it would “phase out” the program after six months – that is, by March 5 of this year – in order to give Congress an opportunity to consider authorizing DACA and making it legal. Although the DACA program has wide public support, the issue of its continuation got caught up in Congress in the midst of a deep political fight over broader immigration policy and thus DACA has not been rescued by Congress.

In the meantime, the March 5 date to end DACA by the Administration’s own action came and went after lawsuits against the shutdown plan went forward in lower federal courts, leading to the three nationwide court orders keeping DACA in intact for the time being. Those are the orders that the Administration has now asked the Justices to overturn.

If the new cases proceed at the Court on the regular timetable and review is granted, they could be heard and decided by the end of the current term late in June.

Lyle Denniston has been writing about the Supreme Court since 1958.  His work has appeared here since mid-2011.  


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