UPDATE:
With no Justice noting a dissent, and without explanation, the Supreme Court refused on June 3 to order a faster review of the Trump Administration's appeal seeking to end the Deferred Action for Childhood Arrivals program. The Justices seem to be awaiting completion of review of the issue in cases still making their way through lower courts. The Court still could act before the end of the current term, likely later this month.
ORIGINAL STORY:
For more than five months, the Supreme Court has opted to remain on the sidelines of the heated, nationwide controversy over the legal fate of nearly 800,000 undocumented young foreign nationals who have grown up in America not knowing whether they can stay.
Now, the Trump Administration is urging the Justices to act swiftly, to decide in the next few weeks on the next step in a dispute that has also eluded Congress’s willingness to act.
President Trump and his aides have been trying for more than eight months to end the youths’ protection from deportation, under the so-called Deferred Action for Childhood Arrivals program but those efforts have been blocked by lower courts’ orders.
The Court has indicated that it will take up, at a private conference on Thursday, the Administration’s plea to speed up its handling of a fresh new appeal. This is the fourth the government has filed at the Court on the issue. The Justices have been asked to choose, before they begin their summer recess about a month from now, whether they are going to take on the issue.
If they grant review, a final ruling probably would not emerge until next year, unless the Justices agreed to consider the case in a special sitting this summer, after the end of the Court’s regular term late next month, or to take it up very early after a new term begins in October. Earlier, the Administration told the Court it wanted a final decision on the shutdown of the program by the end of the Court’s current term, but it did not renew that suggestion explicitly in its new filings. The new documents did argue that the dispute is an urgent one.
The program at issue is known popularly simply as “DACA.” Begun by the Obama Administration almost exactly seven years ago, in June 2012, the DACA program so far has protected some 793,000 young people from deportation to their home countries, mostly in Mexico and Central America.
They otherwise would have been treated as illegally in the country, because their parents brought them into the U.S. as children without legal permission or the youths entered on visitor’s visas and stayed on without permission. Most of them came at such a young age that they have little recollection of life anywhere except in the U.S. They have been allowed to work and to attend school and college, and a number of state governments have come to their support, arguing that as young adults they are making major contributions to society.
While allowed to remain in the U.S., they were not assured of a path to citizenship. Only Congress could create such a right.
Their legal fate has always been tied up with the ongoing and seemingly impossible to resolve controversy in Congress over drawing up comprehensive new immigration laws. President Trump once told congressional leaders that he would back a plan to protect the youths, if the leaders could come up with a solution, but later changed his mind, so the impasse continues within Congress and with the White House.
The Supreme Court has given no indication why it has held onto three government appeals on the issue since January without action. There has been speculation that the Justices might have been waiting to see how lower appeals courts would handle the issue first, perhaps to see whether they would reach conflicting results that only the Supreme Court could resolve finally.
So far, two appeals courts have ruled that the Trump Administration did not have legal authority to shut down the program. The latest to rule that way was the U.S. Court of Appeals for the Fourth Circuit, which issued a decision last week in a Maryland case. Trump Administration lawyers moved swiftly to challenge that ruling in the Supreme Court. They simultaneously asked the Justices to take up on Thursday a motion to expedite action on this new appeal, and to consider at a private conference on June 20 whether to grant or deny review of some or all of the government’s four pending appeals. (The three other appeals involve cases from California, New York and Washington, D.C.)
Trial judges in three of the cases issued orders requiring that the DACA program continue in operation and unchanged while the legality of President Trump’s shutdown plan is fully tested in those trial courts.
Only one trial judge, in Maryland, ruled for the Administration, but that was overturned last week in the Fourth Circuit Court’s new decision.
The Administration’s most basic argument in its appeals is that there was no role for the courts to play in reviewing the plan to shut down DACA, contending that the decision to end it was a matter assigned to the discretion of federal government agencies. But if the Court were to rule that the courts did have authority to review the shutdown decision, the Administration is arguing that it had a firm legal basis for its action, because it believed that the Obama Administration had no legal power to create DACA in the first place.
As the cases have gone through lower federal courts, they have raised a variety of issues under the Constitution as well as under federal immigration and administrative laws. If the Court goes grant review of the controversy, it has the option of deciding which issues it would resolve.
The Supreme Court already has some familiarity with the dispute over DACA. Three years ago, by a split 4-to-4 vote, the eight-member Court at the time summarily upheld a lower court ruling that struck down an attempt by the Obama Administration to expand the scope of the DACA program and a 2014 program that the Obama Administration wanted to set up to protect from deportation the foreign national parents of children because the children had since become U.S. citizens or had acquired the statue of permanent legal residents in the U.S. That 2016 decision did not affect DACA as it existed in its original 2012 form, and that is the program now still in existence.
In addition, the Supreme Court in February of last year denied an earlier plea by the Trump Administration to grant review of the California case, before that case had gone through the U.S. Court of Appeals for the Ninth Circuit. That Circuit Court has since ruled that the program must be continued as it has existed since 2012.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.
