By ADAM LIPTAK and MICHAEL D. SHEAR
FEB. 26, 2018 - The New York Times
WASHINGTON — The Supreme Court on Monday declined an unusual White House request that it immediately decide whether the Trump administration can shut down a program that shields some 700,000 young undocumented immigrants from deportation. The move meant that the immigrants, often called “Dreamers,” could remain in legal limbo for many months unless Congress acts to make their status permanent.
The Supreme Court’s decision not to hear the administration’s appeal was expected, as no appeals court has yet ruled on the issue. The court’s order was brief, gave no reasons and noted no dissents. It said it expected the appeals court to “proceed expeditiously to decide this case.”
President
Trump ended the program, Deferred Action for Childhood Arrivals, or DACA,
last September, calling it an unconstitutional use of executive power by his
predecessor and reviving the threat of deportation for immigrants who had been
brought to the United States illegally as young children.
But two federal judges have ordered the administration to
maintain major pieces of the program while legal challenges move forward,
notably by requiring the administration to allow people enrolled in it to renew
their protected status. The administration has not sought stays of those
injunctions.
The Supreme Court’s move will, as a practical matter, temporarily shield the young immigrants who already had signed up for the DACA program from immediate deportation, and allow them to keep working legally in the United States. Their status lasts for two years and is renewable.
The court’s decision not to hear the appeal could also relieve the immediate political pressure on lawmakers to permanently address the status of those immigrants, or to deal with the additional one million Dreamers who had never signed up for the DACA program. They remain at risk of deportation if immigration agents find them.
Even as he ended the DACA program, Mr. Trump had called upon Congress to give the young immigrants legal status — and an eventual path to citizenship — before the program was scheduled to expire March 5.
But that proposal has been bogged down in partisan gridlock as members of Congress argue about broader changes to the United States’ immigration system that the president and his conservative allies in Congress have demanded as part of any deal to address the future of the young immigrants.
This month, senators failed to reach consensus in a series of votes on bills to address the Dreamers and other immigration issues. A bipartisan coalition in the Senate roundly rejected a measure backed by Mr. Trump that would have all but ended the family-based migration system that has been in place for decades. A separate bipartisan measure that would have legalized the Dreamers and allocated $25 billion for a wall on the border with Mexico fell six votes short of the 60 needed to proceed to a final vote.
Now, the court’s action is likely to lessen the urgency on Capitol Hill over the issue, making it even more probable that Congress will take no action as the legal process plays out.
As a possible fallback plan after the Senate’s failure this month, lawmakers could negotiate a short-term patch that would continue the DACA program for a few years, perhaps in exchange for partial funding of Mr. Trump’s wall. Such a deal could be tucked into a broad spending bill that lawmakers must approve by March 23, when government funding is set to expire.
But the court’s move could undercut any momentum to push for even a very narrow deal in the next few weeks, and there has been little evidence of progress toward any kind of bipartisan pact that would be acceptable to Mr. Trump. House Republican leaders still appear focused on a hard-line conservative immigration bill that would be a nonstarter in the Senate.
“While the court’s decision appears to have pushed this deadline beyond March, House Republicans are actively working toward a solution,” said AshLee Strong, a spokeswoman for Speaker Paul D. Ryan of Wisconsin.
Mr. Trump has repeatedly condemned Democrats in recent days, accusing them of not caring about the young immigrants. In one recent Twitter post, he said Republicans “stand ready to make a deal” to protect the Dreamers from deportation.
But Democrats, and some Republicans, accuse Mr. Trump and his hard-line conservative White House advisers of using the Dreamers as leverage for changes to the immigration system that conservative, anti-immigrant activists have long sought.
The case at the Supreme Court was brought in California by five sets of plaintiffs. They included four states — California, Maine, Maryland and Minnesota — and Janet Napolitano, the president of the University of California. As secretary of homeland security in the Obama administration, Ms. Napolitano signed the document that established the program in 2012.
In January, Judge William H. Alsup of the Federal District Court in San Francisco ruled that the administration had abused its discretion and had acted arbitrarily and capriciously in rescinding the program. Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn issued a similar ruling this month.
The judges acknowledged that presidents have broad powers to alter the policies of earlier administrations. But they said the Trump administration’s justifications for rescinding the program did not withstand scrutiny.
The administration had argued that the program was an unconstitutional exercise of authority by the executive branch, relying on a ruling from the United States Court of Appeals for the Fifth Circuit, in New Orleans, concerning a related program. The Supreme Court deadlocked, 4 to 4, in an appeal of that ruling.
The judges said the two programs differed in important ways, undermining the administration’s legal analysis. They noted, too, that Mr. Trump had issued conflicting statements about the DACA program.
Both judges issued nationwide injunctions ordering the administration to retain major elements of the program while the cases moved forward. Such nationwide injunctions from judges in individual cases, which have been used to block executive actions in both the Obama and Trump administrations, have been the subject of much commentary and criticism.
The administration appealed Judge Alsup’s ruling to the United States Court of Appeals for the Ninth Circuit, in San Francisco, and that court put the appeal on a fast track. In an unusual move, the administration also asked the Supreme Court to grant immediate review, leapfrogging the appeals court.
That procedure, called “certiorari before judgment,” is used rarely, typically in cases involving national crises like President Harry S. Truman’s seizure of the steel industry and President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor.
In a statement, the Justice Department said it would continue to make its legal arguments as the case proceeded.
“While we were hopeful for a different outcome, the Supreme Court very rarely grants certiorari before judgment, though in our view, it was warranted for the extraordinary injunction requiring the Department of Homeland Security to maintain DACA,” said Devin M. O’Malley, a spokesman for the department. “We will continue to defend D.H.S.’s lawful authority to wind down DACA in an orderly manner.”
Lawyers for the challengers expressed satisfaction with Monday’s developments.
“We are pleased that the Supreme Court is allowing the normal appellate process to run its course,” said Theodore J. Boutrous Jr., who represents people affected by the program. “DACA is a lawful and important program that protects young people who came to this country as children and who know this country as their only home.”
In a brief urging the Supreme Court to deny review, lawyers for the University of California wrote that “it has been nearly 30 years since the court granted certiorari before judgment without the benefit of a court of appeals ruling on the question presented.”
In a second brief, lawyers for the four states wrote that no national emergency warranted use of the unusual procedure.
“Since 2012, the DACA program has allowed hundreds of thousands of young people to receive deferred action, work authorization and other benefits,” they wrote. “The district court’s preliminary injunction only partially and temporarily restores the situation that existed prior to petitioners’ abrupt decision to terminate the program — and only for individuals who had already received deferred action under DACA.”
“Petitioners are entitled to a prompt appeal,” the brief said, “but there is no imminent deadline posing a critical threat to the public interest of the sort that might justify bypassing the normal channels for that review.”
In the administration’s brief, Solicitor General Noel J. Francisco told the justices that “an ongoing violation of federal law being committed by nearly 700,000 aliens” required the Supreme Court to act. But he did not ask the court to stay Judge Alsup’s injunction while the case moved forward. Mr. Francisco wrote that an immediate stay would interfere with the administration’s goal of an “orderly wind-down” of the program.