New York Times
By Adam Liptak and Michael D. Shear
February 26, 2018
The Supreme Court on Monday declined to clear the way for the Trump administration to end the Obama-era program that protects about 700,000 young immigrants from deportation, meaning that the so-called “Dreamers” could remain in legal limbo for months unless Congress acts to make their status permanent.
President Trump ended the Deferred Action for Childhood Arrivals, or DACA, program 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 Supreme Court’s decision on Monday not to hear the government’s appeal will keep the program alive for months.
That will 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 also could 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 last September, 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 on March 5.
But that proposal has bogged down in partisan gridlock as members of Congress argue about broader changes to the nation’s 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.
Earlier 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 border wall fell six votes short of the 60 needed to proceed to a final vote.
If the Supreme Court had decided to allow the Trump administration to formally end the program on March 5, lawmakers would have been facing a difficult challenge to resolve their ideological differences by next Monday. That would have been even more difficult because lawmakers are also grappling with how to respond to the Florida school shooting.
Now, the court’s action is likely to push the debate beyond the midterm elections in November, as lawmakers in both parties often seek to avoid making highly controversial policy decisions just before they face their constituents at the ballot box.
Lawmakers are working to extend legal protections for undocumented immigrants who were brought to the United States as children, but the discussion is complicated by other issues on the table.
Mr. Trump has repeatedly condemned Democrats in recent days, accusing them of not caring about the young immigrants. In one recent tweet, he said that 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.
Advocates for immigrants, including groups that represent Dreamers, say lawmakers should reject proposals like the one from Mr. Trump that would boost border security, end the ability for immigrants to bring their parents and siblings to the United States, and dismantle a visa program for immigrants from underrepresented countries.
The result is a stalemate with members from both parties expressing doubt about a quick resolution.
The 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 urged the appeals court to “proceed expeditiously.”
The administration did not seek stays of the injunctions entered in the lower courts, and they will remain in place for the time being, allowing much of the program to survive beyond the March 5 deadline.
In a statement, the Justice Department said it would continue to make its legal arguments as the case proceeds.
“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 O’Malley, a spokesman for the department. “We will continue to defend DHS’ 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. 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.”
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 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 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 judges required the administration to accept renewal applications but not new ones, and they said the administration need not allow existing participants to return to the United States after traveling abroad. They also noted that the administration retained broad powers to make individualized decisions based on national security, public safety and other factors.
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 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 before 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 some 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.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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