Trump administration asks Supreme Court to rule on DACA decision

The Trump administration formally asked the Supreme Court late Thursday to hear its appeal of a lower court’s decision blocking the Trump administration from ending the Obama-era Deferred Action for Childhood Arrivals (DACA) program.

In a court filing obtained by The Hill, the Justice Department followed through on a promise earlier this week to ask for the Supreme Court to make a “rare” move to bypass the 9th Circuit Court and rule on the legality of the decision before the court’s term ends in June.

DOJ attorneys argued in the 33-page appeal that waiting for the 9th Circuit Court of Appeals to hear the case and issue a ruling would take months, even if the case was on an expedited review. And doing so, they said would “require the government to retain in place a discretionary policy that sanctions the ongoing violation of federal law by more than half a million people.”

“Even if the losing party were to seek certiorari immediately following the 9th Circuit’s decision, this court would not be able to review the decision in the ordinary course until next Term at the earliest,” the attorneys wrote.

The appeal comes a week after a federal district court judge in San Francisco said the Obama-era program must remain in place and the Department of Homeland Security (DHS) must continue to accept renewal applications from immigrants currently in the program.

DOJ argued that former acting Secretary Elaine Duke’s September decision to rescind the DACA program was a “policy enforcement” decision that’s within the powers of a federal agency and can’t be reviewed under the Administrative Procedure Act (APA).  
 
“Even if DHS’s prospective denial of deferred action were reviewable, the individual respondents could not obtain such review unless and until a final order of removal were entered against them,” they wrote.

“And even if it were reviewable now under the APA, the decision to rescind the DACA policy was not arbitrary and capricious. The Acting Secretary opted to wind down DACA after reasonably concluding that the policy was likely to be struck down by courts and indeed was unlawful.”

California Attorney General Xavier Becerra, who brought the lawsuit with the University of California and attorneys general from Maine, Maryland and Minnesota challenging the Trump administration’s decision to repeal the program, said earlier this week that he’s confident the injunction will be upheld.

“I am confident the appellate courts will see the logic and justice behind the district court’s issuance of the preliminary injunction against the termination of the DACA program,” he said in a statement.

In 2016, a shorthanded Supreme Court issued a 4-4 ruling in a case challenging former President Obama’s immigration policies. The decision left in place a 5th Circuit Court ruling preventing the Obama administration from expanding DACA and blocking the Deferred Action for Parents of Americans and Lawful Permanent Residents.

The program would have allowed immigrants who are parents of U.S. citizens or lawful permanent residents to remain in the U.S. for three years and apply for work permits.

DOJ cited the court’s previous ruling in urging the court to hear its appeal. 

Updated at 9:05 p.m.