Three days ago, the federal government went to the Supreme Court, asking the justices to weigh in on a dispute over the Trump administration’s decision to end a program known as Deferred Action for Childhood Arrivals even before the federal courts of appeals – and in particular the U.S. Court of Appeals for the 9th Circuit – could review the government’s appeal from district court rulings against it. Today the 9th Circuit issued its ruling in the challenge to the termination of the program, known as DACA, which allows some undocumented immigrants who came to the United States as children to apply for protection from deportation. The ruling means not only that the Supreme Court is now more likely to take up the DACA dispute, but that it could do so this term.
In its filing on Monday, the federal government complained that the 9th Circuit had heard oral argument in the dispute in mid-May but had not yet issued its ruling. Arguing that the Supreme Court would inevitably have to weigh in on the DACA dispute, the government urged the justices to go ahead and do so now, without waiting for the courts of appeals to rule. Otherwise, the government contended, the Supreme Court might not decide the question until next term, which would require the government to keep DACA in place even though it believes the program is not legal.
In an opinion issued today, a three-judge panel of the 9th Circuit upheld a federal district court’s order requiring the government to keep the DACA program in place. Although the 9th Circuit’s ruling went against the government, the decision likely helped the government’s cause at the Supreme Court, because the justices rarely grant petitions for review before the courts of appeals have ruled; the justices prefer to have the benefit of those courts’ opinions, even if they often do not follow them.
The challengers’ response to the government’s petition is currently due on December 5. Assuming that the court does not extend that deadline, the justices could announce as soon as mid-January whether they will take up the dispute.
This post was also published on SCOTUSblog.