The Supreme Court on Monday declined to enter the national controversy over “dreamers,” turning down the Trump administration’s request to immediately review lower court decisions that keep in place the program that protects from deportation undocumented immigrants brought here as children.
President Trump announced in September that he would let the program expire in March, unless Congress acted. Efforts on Capitol Hill to revive the Deferred Action for Childhood Arrivals program (DACA) as part of a broader deal on immigration policy have failed.
Federal district judges in California and New York have issued nationwide injunctions against ending the program, siding with states and organizations challenging the administration’s rescission. The court orders effectively block the Trump administration from ending the program on March 5, as planned.
No appellate court has reviewed those decisions, and it would have been exceedingly rare for the Supreme Court to take up a case without that interim step. In the past, the court has granted such cases only in matters of grave national importance, such as the controversy over President Richard Nixon’s White House tapes or solving the Iranian hostage crisis.
The litigation now will take its usual course, and the issue probably won’t return to the Supreme Court before the next term. In the meantime, the White House and Congress can continue to seek a political resolution.
Trump, at a meeting with governors at the White House, reacted to the court’s decision by saying: “We’ll see what happens. That’s my attitude.”
In an official statement, the White House did not criticize the justices for declining to take up the case, but said the DACA program “is clearly unlawful.”
“The district judge’s decision unilaterally to reimpose a program that Congress had explicitly and repeatedly rejected is a usurpation of legislative authority,” said Raj Shah, a White House spokesman. “The fact that this occurs at a time when elected representatives in Congress are actively debating this policy only underscores that the district judge has unwisely intervened in the legislative process.”
California Attorney General Xavier Becerra (D), among those who challenged the way the Trump administration ended the DACA program, said the Supreme Court was right to deny the government’s “unusual and unnecessary request to bypass the appeals court review of our DACA lawsuit.”
“For the sake of the Dreamers who help make our economy and our state strong, the rescission of DACA should not be allowed to stand,” he said.
U.S. District Judge William Alsup in San Francisco ruled in December that challengers are probably right that the way the administration is ending the program violated the Administrative Procedure Act, because it is arbitrary and capricious.
A nationwide injunction is warranted, Alsup said, because “our country has a strong interest in the uniform application of immigration law and policy.” Earlier this week, a district judge in New York came to an almost identical conclusion.
Solicitor General Noel Francisco told the court that the administration was ending the program because of the threat of legal challenges from a coalition of states led by Texas, and a belief that the program instituted during the Obama administration could not be successfully defended in court.
The Department of Homeland Security, Francisco said, “opted to wind down DACA after reasonably concluding that the policy was likely to be struck down by courts and indeed was unlawful.”
The administration had proposed to end the program next month. But the injunctions require the department to continue to accept renewal applications from those protected from deportation. The administration is not required to accept new applications.
Challengers, led by Becerra and the board of regents of the University of California, said the administration is ignoring past findings by the government that the program is legal.
“Without the injunction, thousands of DACA recipients would lose their work authorization and deferred action status in March 2018 — and thousands more the next month, and each succeeding month, until nearly three-quarters of a million young Americans would be shunted back into the shadows of our society,” Becerra wrote in his brief.
And a separate brief from the California Board of Regents noted how unusual it would be for the court to accept the case without the benefit of review from lower courts, a process called “certiorari before judgment.”
“In the very rare instances — the last almost 30 years ago — in which the court has granted certiorari before judgment in this situation, it has done so in response to an urgent, overwhelming need for immediate resolution of a legal issue,” the brief said
The case is Department of Homeland Security v. California Board of Regents.