In June 2012, President Barack Obama signed a policy known as “Deferred Action for Childhood Arrivals” (popularly known as DACA), a program that allows undocumented immigrants who came to the United States as children to apply for protection from deportation. Today the federal government went to the Supreme Court, asking it to intervene immediately in a legal dispute over whether the Trump administration can end DACA – and to rule on the dispute before the court’s summer recess.
The clash now at the court arose last fall, when the Trump administration announced that it would terminate DACA, which would result in some of the 800,000 young adults who qualified for the program becoming eligible to be deported. On January 9, a federal trial judge in San Francisco barred the federal government from ending the program anywhere in the United States.
On January 16, the Department of Justice announced that it had appealed the judge’s ruling to the U.S. Court of Appeals for the 9th Circuit. In a press release, U.S. attorney general Jeff Sessions declared that the government would also take what he described as the “rare step” of going directly to the Supreme Court – a procedure known as “certiorari before judgment.”
Today the government filed that petition for certiorari before judgment. It urged the justices to take on the case immediately, telling them that the district court’s “unprecedented order requires the government to sanction indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens—and, indeed, to confer on them affirmative benefits (including work authorization) pursuant to the DACA policy.” Unless the court steps in, the government continued, the district court’s order could remain in effect for months while it appeals to the 9th Circuit; if the 9th Circuit were to leave the order in place, the government emphasized, “it could continue for more than a year given the Court’s calendar.”
In its 33-page filing, the government also told the justices that the district court’s ruling is simply wrong. The decision by the acting secretary of the Department of Homeland Security to wind down DACA is a classic example of a decision that falls within the agency’s discretion and is thus not reviewable by courts. But even if courts did have the power to weigh in, the government continued, it would be too soon for them to do so: Any challenges to the termination of DACA can only happen after the government orders the individual challengers to leave the country. Moreover, the government wrote, the acting secretary’s decision to end the program can pass legal muster as long as it was reasonable – which it was.
Somewhat surprisingly, the government did not ask the justices to put the district court’s ruling on hold while its appeals play out. The government told the court that a main goal of the “orderly wind-down of the DACA policy was to avoid the disruptive effects” of “abrupt shifts in the enforcement of the Nation’s immigration laws.” Moreover, it added, a stay would not address other problems arising from the litigation, such as the burden from being involved in “protracted litigation over” the decision to wind down DACA and the potential for additional disputes over what documents the federal government needs to turn over to the challengers as part of the case. Instead, the government asked the court to grant review now and “resolve the dispute this Term” – a move that would require the justices to expedite the briefing schedule significantly.
As the attorney general acknowledged, it is indeed rare for a losing party to ask the Supreme Court to weigh in before the court of appeals has had a chance to rule. The Supreme Court’s rules indicate that certiorari before judgment “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” As Kevin Russell has observed, the court has granted review before judgment “in only a handful of cases over the last seventy-five years.” Most of those cases, Russell wrote, fall into one of at least three categories: The justices granted review to allow the court to hear a case at the same time as another one that it had already agreed to review through normal channels; the federal government petitioned for review; or the cases involved “international relations and presidential authority, particularly in the context of the president’s war powers.” The DACA case obviously meets the second criterion; we’ll know soon whether the justices will agree that the case is so important that it warrants immediate review.