The Trump Administration’s effort to close down the “DACA” program is now on a slightly faster schedule in a lower appeals court, but the plan may be too tight to get the case to the Supreme Court for any action during the current term. In a new order issued Thursday, the U.S. Court of Appeals for the Ninth Circuit said it would not hold a hearing until sometime in May, leaving at most only a few weeks for a decision there, followed by filings in the Supreme Court.
The DACA program for undocumented younger immigrants (Deferred Action for Childhood Arrivals) is under review in the Ninth Circuit Court after a federal judge in San Francisco barred the Administration from ending the program as of March 5, which was the plan.
After the Supreme Court refused to bypass the Circuit Court and rule directly on the legality of the shutdown, the Administration asked the appeals court to speed up the case so that it could be decided in time for the Supreme Court to take initial action on it before ending the term, likely in late June.
In the Thursday order, the Circuit Court cut two weeks off of the prior schedule, which had already been expedited, but the order denied permission – for the time being – to put the decision in the case on a definite, faster schedule.
At most, it said, the hearing will be set for an unspecified date in May, and the Administration could ask at the time of that hearing that the court issue its decision swiftly, according to the new order. The May hearing would be before a three-judge panel, and it would be up to that panel to decide whether to rush its ruling.
No matter how soon in May the hearing and decision might occur, the Administration – if it lost in the appeals court – would have to move with unusual speed to get the Justices to make up their minds before going off on summer recess whether to grant review of any such appeal. If the challengers to the shutdown plan lost at the appeals court, they, too, would have little time to get the Justices to react to an appeal before the recess begins. No matter who pursued such a rushed appeal to the Justices, there would appear to be almost no chance that the Justices would issue a final decision before recessing.
There is still a possibility, but the chances for it appear to change almost daily, that Congress may step in and do something about keeping the DACA program alive. President Trump has taken various positions on a legislative solution since ordering the shutdown of the program. If Congress does not act, then the fate of DACA will be up to the courts to resolve.
Under the nearly six-year-old DACA program, nearly 800,000 undocumented immigrants who have grown up in the U.S. since childhood have gained official permission to stay in the country, and to work or study, without fear of deportation unless they committed a crime. The program originated in the Obama Administration and, while President Trump has spoken warmly about the DACA recipients, he and his aides decided in September to shut it down after a six-month grace period. The court orders against the shutdown have prevented it.
