The Supreme Court handed President Trump a significant defeat Monday, turning down the administration’s plea for a quick ruling that would have upheld the president’s power to end special protections for so-called Dreamers.
The court’s decision keeps in place a legal shield for nearly 700,000 young immigrants for the rest of this year, and perhaps longer, allowing people who have been covered by the Obama-era Deferred Action for Childhood Arrivals program to continue living and working legally in the U.S. Those whose existing DACA permits expire this year will also be allowed to apply for another two-year permit.
Although the court’s action removes for now the threat of job loss and deportation, it also will extend the long-term uncertainty for the Dreamers — young immigrants who were brought to the U.S. illegally as children. Congress has been stymied on a legislative solution to their situation, and without an immediate deadline to force action, lawmakers almost certainly will not try again to forge a compromise on immigration before this fall’s midterm elections.
Last September, Trump announced that he would end the DACA program and gave Congress until March 5 to pass legislation to resolve the legal status of the Dreamers. Then, in early January, U.S. District Judge William Alsup in San Francisco ordered the government to keep the DACA program running until legal challenges could be fully aired, ruling that Trump’s order had been based on a “flawed legal premise.” A district judge in New York this month issued a similar ruling.
In seeking to get Alsup’s order overturned, the Justice Department sought to leapfrog the U.S. appeals court in California, asking the Supreme Court to grant an “immediate review” of Alsup’s nationwide order.
The action the administration sought was rare. It has been nearly 30 years since the Supreme Court granted review of a district judge’s ruling before an appeals court could weigh in. And the court said Monday it had no interest in following that course in the DACA case.
The justices, without dissent, turned down the administration’s petition “without prejudice,” meaning that the government could return to the high court once the appeals court rules.
“It is assumed that the Court of Appeals will proceed expeditiously to decide this case," the justices noted in a brief order.
Even though the action by the high court was procedural in nature, not a ruling on the substance of the case, it has significant impact because it keeps in place Alsup’s injunction for as long as the case wends its way through the judicial system, which could be quite a while. In their appeal to the high court, administration lawyers said the injunction would likely last well into 2019 if the appeals run their normal course in the lower courts.
That’s a significant victory for the Dreamers and a defeat for administration hard-liners, led by Stephen Miller, Trump’s domestic policy advisor. They have tried to use renewal of DACA as a bargaining chip to get Congress to adopt new policies to restrict legal immigration.
With DACA now effectively off the congressional agenda for this year, the possibility of new immigration restrictions is also much less likely. Democrats hope to regain control of at least one house of Congress in the midterm elections, which would give them considerably more of a say in any legislation.
Even if the 9th Circuit Court of Appeals does act “expeditiously,” as the justices suggested, a ruling from the appeals court would be unlikely before summer. That would mean the earliest the case could return to the Supreme Court would be in the fall, with a ruling possible by the end of the year.
That’s assuming a speedy path for the litigation. A scenario in which the case doesn’t return to the high court until a year from now is quite possible.
Speaking to a group of the nation’s governors on Monday, Trump complained about once again facing a case in the 9th Circuit, which hears appeals in federal cases from California and eight other Western states. A majority of the court’s active judges were appointed by Democratic presidents.
“I mean, it's really sad when every single case filed against us — this is in the 9th Circuit — we lose, we lose, we lose, and then we do fine in the Supreme Court. But what does that tell you about our court system? It's a very, very sad thing. So DACA's going back, and we'll see what happens from there,” Trump said.
The Justice Department’s reaction was more measured, acknowledging that the administration’s request for the court to take up the case and bypass the appeals court had been a long shot.
“While we were hopeful for a different outcome, the Supreme Court very rarely grants certiorari before judgment,” said spokesman Devin O’Malley. “We will continue to defend [the Department of Homeland Security’s] lawful authority to wind down DACA in an orderly manner.”
Los Angeles attorney Theodore Boutrous Jr. , who represented DACA recipients who challenged Trump’s order, praised the court’s decision.
“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. The Dreamers have relied on DACA to make decisions about their education, jobs, and families and to make valuable contributions to society as doctors, lawyers, teachers, and members of the military,” he said.
“Two federal district courts have now recognized that the Trump administration’s abrupt decision to end the program was unlawful. We are confident that the court of appeals will reach the same conclusion,” he added.
“This was clearly the correct result — to let the judicial process work in the orderly manner,” said Mark Rosenbaum, another Los Angeles lawyer who worked on the case. “The larger message is also clear: that for the 700,000 Dreamers who continue to work and study every day to make our nation a better place, the responsibility rests with Congress to do the right thing.”
The administration’s legal strategy in the case was consistent with Trump’s approach to DACA since he was elected: He has not wanted to keep the program but has also not wanted to be blamed for deporting Dreamers, who enjoy widespread public support.
After Alsup issued his order, U.S. Solicitor Gen. Noel Francisco could have asked the high court for a stay, which would have put the order on hold and allowed the administration to end DACA. Instead, he surprised many observers by, instead, asking the justices to hear arguments in the case this spring.
Francisco asserted that a stay would result in an “abrupt shift” in the enforcement policy, while the administration favored an “orderly wind-down of the DACA policy.”
At the same time, he insisted that the court order was doing serious harm to the government. “The district judge’s unprecedented order requires the government to sanction indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens,” Francisco wrote, referring to the DACA recipients.
In his ruling, Alsup said Trump’s advisors, led by Atty. Gen. Jeff Sessions, had been wrong when they decided President Obama lacked the authority to extend relief to the Dreamers.
Alsup agreed “a new administration is entitled to replace old policies with new policies,” but nonetheless concluded that the “flawed legal premise” set out by Sessions could not serve as a basis for ending DACA now.
His preliminary injunction required the administration to “maintain the DACA program on a nationwide basis.” However, he said nothing in his order would prevent federal authorities from “removing any individual, including any DACA enrollee, who it determines poses a risk to national security or public safety.”