DACA suit:
Trump administration says it will appeal directly to the high court to uphold order ending program.
The Trump administration announced plans Tuesday to appeal directly to the Supreme Court to uphold the president’s order abolishing a program that protects nearly 700,000 young undocumented immigrants from deportation, bypassing a more liberal appeals court in San Francisco.
The Justice Department did not, however, announce an intention to seek a stay of the Jan. 9 ruling by U.S. District Judge William Alsup of San Francisco that preserved the program known as Deferred Action for Childhood Arrivals, or DACA. So far, the government has complied with the ruling, reopening DACA applications on Saturday so that past recipients could renew their status.
DACA, established by President Barack Obama’s executive order in 2012, allows immigrants who arrived illegally before age 16, and who have attended school or served in the U.S. military and have no serious criminal record, to seek renewable two-year stays of deportation and work permits.
President Trump ordered the program abolished in September unless Congress enacts it as law by March 5. Alsup blocked the order last week in lawsuits by DACA recipients and institutions including the University of California. He said the president had not stated any rational basis to terminate the program and disrupt the lives of young people who had trusted the government with personal identifying information.
In a statement Tuesday, Attorney General Jeff Sessions said the Justice Department would ask the Supreme Court later this week to take the “rare step” of considering the case directly, bypassing appellate review, “so that this issue may be resolved quickly and fairly for all the parties involved.”
“It defies both law and common sense for DACA — an entirely discretionary non-enforcement policy that was implemented unilaterally by the last administration — to somehow be mandated nationwide by a single district judge in San Francisco,” Sessions said.
He did not mention any plan to ask the court to suspend Alsup’s ruling during the appeal and reinstate Trump’s order. The Justice Department declined to comment on that issue.
And in a separate filing Tuesday, the department notified Alsup that it was appealing his ruling to the Ninth U.S. Circuit Court of Appeals in San Francisco, not mentioning Sessions’ plan to ask the high court to pluck the case away. The appeals court, with a majority of Democratic appointees, has ruled against Trump’s proposed ban on U.S. entry from predominantly Muslim countries, and has been repeatedly denounced by the president.
The apparent two-track strategy — letting DACA continue while claiming a need for immediate Supreme Court intervention — suggests that the administration hopes Congress will solve the problem, said Pratheepan Gulasekaram, a professor of immigration law at Santa Clara University. With a possible government shutdown looming at midnight Friday, Republicans are seeking rollbacks of current immigration programs in exchange for Democratic demands to write DACA into law.
If such a deal is in the works, “it makes more sense to allow DACA to continue as a bridge until the legislative fix,” Gulasekaram said. In the meantime, however, “it’s not clear that this case meets the standard of being so exceptional that the Supreme Court has to weigh in,” he said.
The Supreme Court’s rules allow it to step in, before the normal appeals court review, if “the case is of such imperative
public importance as to justify deviation from normal appellate practice and to require immediate determination in this court.”
The court has taken such actions in the past in a small number of cases, usually involving critical tests of presidential powers: for example, the 1942 ruling allowing the U.S. to try accused German saboteurs in military courts, the 1952 ruling barring President Harry Truman’s seizure of steel mills during the Korean War, and the 1974 ruling requiring President Richard Nixon to turn over the Watergate tapes, leading to his resignation 16 days later.
It would take four votes to grant review by the nine-member court, and five votes to grant a stay.
The court’s standards, and the Trump administration’s silence on asking for an immediate stay of Alsup’s ruling, weigh against Supreme Court intervention, said Bill Hing, a University of San Francisco immigration law professor.
“We’re not at March 5 yet — how is the government being hurt?” Hing asked. “The Supreme Court always wants to give lower courts a chance ... unless there’s some special emergency. They’re admitting, by not asking for a stay, that that kind of emergency doesn’t exist.”