Lawyers for the Trump Administration, applying pressure for prompt resolution in court of the future of the “DACA” program for young undocumented immigrants, vowed on Wednesday to go directly to the Supreme Court unless a federal appeals court issues a decision by the end of October.
DACA is the six-year-old program of Deferred Action for Childhood Arrivals that currently protects from deportation some 700,000 younger immigrants who otherwise would lack legal permission to remain in the country. The Trump Administration wants to end that Obama-era program, but is now blocked from doing so by several lower court orders.
One of those orders, issued by a California federal judge in January, is now being reviewed by the U.S. Court of Appeals for the Ninth Circuit in an appeal the Administration filed there. That court held a hearing in mid-May, but so far has not issued a decision.
In a just-filed letter to that court, a Justice Department lawyer argued that, if the Ninth Circuit panel does not rule promptly, time will run out for the Supreme Court to take on the controversy and decide it during the current term of the Justices.
If there is no Ninth Circuit decision by October 31, the letter said, the Department will seek to bypass further review at that level and ask the Supreme Court to grant review itself. Unless there is a final decision during the current term, it added, the California judge’s nationwide order keeping DACA intact “could remain in force for at least another year.”
The Supreme Court’s normal practice is to await final decisions by lower courts on a dispute before the Justices will step in, but there is a bypass procedure – not often used – that allows Supreme Court review of a major controversy without waiting.
The letter to the Ninth Circuit panel referred to that alternative, saying that would be its next option in order to get the dispute before the Justices to take account of the reality of the Court’s regular timetable. Under the normal timing, the Justices will not grant review of a case until it has been pending on their docket for about 40 days at a minimum, and then, if review is granted, there is a 104-day span during which written legal arguments are filed. Then a case is set for a hearing, but no hearings are scheduled after April.
Thus, the Department letter implied that the DACA case has to be placed before the Justices early in November for there to be any realistic chance to be reviewed in the Court term that is now unfolding. It is quite unusual for lawyers with a case pending in a court to try to press for a decision, but that is not unprecedented.
The Trump Administration has been trying since early September of last year to put a stop to the DACA program, contending that the Obama Administration had no legal authority to grant mass permission for undocumented immigrants to stay in the U.S. when they have no legal right to do so.
The DACA program does not guarantee those involved a path to become citizens but it does give them temporary legal permission to remain in the country, to get jobs and to go to school and college.
A similar Obama-era deferred deportation program for undocumented parents, who are not in the country legally but who have children who are U.S. citizens or who have a legal right to live in the country, was struck down earlier by lower courts. The Supreme Court, splitting 4-to-4 when there was a vacancy on the Court, allowed that program’s demise.
The DACA program, in the form it has existed since June 2012, has not previously been reviewed by the federal courts.