Wall Street Journal
By Brett Kendall and Laura Meckler
February 26, 2018
The Supreme Court dealt a setback to President Donald Trump’s immigration policy on Monday, declining to take up an administration appeal that sought a quick end to the Obama-era program protecting young, undocumented immigrants who came to the U.S. as children.
The high court’s action, which effectively requires Mr. Trump to finish litigating in the lower courts first, means that hundreds of thousands of program recipients may continue to renew their protections while legal challenges continue, a process that could take another year or longer.
The court’s action also relieves pressure on Congress, which has struggled to find a legislative replacement for the program begun by former President Barack Obama.
In September, Mr. Trump announced that the program, called Deferred Action for Childhood Arrivals, or DACA, would end on March 5. But two lower-court judges have issued injunctions blocking that plan for now and ordered administration officials to continue to process renewals, so Congress doesn’t face an imminent deadline.
The court’s action Monday was a rejection of an unusual request by the Justice Department, which had asked the justices to intervene now, even though appeals courts haven’t yet ruled on the cases.
The high court almost never grants such requests, but the department, citing time sensitivities, had argued the court should settle the issue without delay. That didn’t sway the justices, who turned down the request in a two-sentence order without recorded dissents.
As a result, DACA participants can remain in the U.S. as long as they apply for renewals when their two-year permits expire. The program gives participants the right to legally work and protection from deportation.
The Trump administration could seek high-court review again if a federal appeals court rules against its position.
Activists on both sides of the debate suggested the prolonging of legal proceedings could encourage lawmakers to put off the tough compromises that will be needed if they are to pass legislation aiding the group, known as Dreamers.
“We are grateful that immigrant young people who have had DACA will have more time to renew,” said Greisa Martinez, policy director for the advocacy group United We Dream. “But most immigrant youth are not protected, and we need a permanent legislative protection now,” she said.
As Congress returned to Washington Monday after a weeklong recess, many lawmakers had already shifted their attention away from immigration and toward a renewed debate over gun laws in the wake of the mass school shooting in Florida.
Many Republicans were reluctant to act on immigration from the start and felt pressured by the prospect of DACA participants being deported as soon as March. Even before the high court’s ruling, some GOP lawmakers had noted the lower-court rulings and argued there was no urgency for Congress to act.
“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 House Speaker Paul Ryan (R., Wis.).
“The Supreme Court not taking it up may cause people to say, ‘Oh, there’s no deadline,’ ” said Sen. Jeff Flake (R., Ariz.). He said he worried about that because “we work better under a deadline.”
For their part, Democrats have been frustrated by GOP demands on immigration, and some may want to wait to see if they gain power in Congress after the midterm elections.
“Democrats no longer have the incentive to meet the president’s demands on DACA when they feel a different Congress may be around the corner to resolve this,” said Leon Fresco, an immigration attorney and former adviser to Senate Minority Leader Chuck Schumer (D., N.Y.).
Mr. Trump has called on Congress to replace DACA with legislative protections, but he has demanded that a range of conservative immigration policy changes accompany those safeguards.
In a statement, White House spokesman Raj Shah called the DACA program “clearly unlawful,” and said it was improper for lower courts to block the administration’s move. Mr. Shah said the administration looks forward to having the case heard by an appeals court and the Supreme Court, if necessary, “where we fully expect to prevail.”
DACA was created by the Obama administration in 2012. Under the program’s terms, participants must have arrived in the U.S. under the age of 16 and they must meet a variety of other conditions, including being a student or graduate, and having no significant criminal record. Roughly 800,000 young people have participated in the program since its inception, and about 690,000 are currently enrolled.
In September, Attorney General Jeff Sessions, a leading opponent of illegal immigration, announced an end to the program, calling it an unconstitutional exercise of power by Mr. Obama without authorization by Congress.
That move effectively threw the issue to Congress, but lawmakers remain at an impasse on how and whether to authorize new measures to protect DACA recipients. Several immigration proposals failed on the Senate floor earlier this month.
DACA participants whose permits expired between September and March were given a chance to renew them, but those with permits that expire on March 5 or later would lose protections under the Trump plan.
Meanwhile, judges in San Francisco and New York ruled that legal challengers were likely to prevail in their arguments that the Trump administration acted arbitrarily and abused its discretion. The judges said presidents can change policy on issues like immigration but must do so in a more reasoned and deliberate way. And they said Mr. Sessions wasn’t correct that DACA was an unlawful action by Mr. Obama.
Monday’s court action means that current and former DACA participants will be able to request renewals of their DACA permits. Applications from people who had never participated in the program before won’t be considered, even if they meet the criteria.
The Justice Department had sought high-court review of the San Francisco case. That case will now follow the normal routine and be reviewed by the Ninth U.S. Circuit Court of Appeals, where briefing already is under way. A decision is expected later this year.
Plaintiffs that sued the administration included the states of California, Maine, Maryland and Minnesota, the city of San Jose, Calif., and individual DACA recipients.
The Trump administration argues that the DACA cancellation was a matter of policy discretion that the courts have no authority to review. It also says the cancellation was reasonable in light of court rulings that struck down a broader Obama administration initiative to defer deportation and provide work authorizations for millions of illegal immigrants, not just youth.
The Supreme Court deadlocked 4-to-4 in that case in 2016 after the death of Justice Antonin Scalia. The high-court tie effectively killed the Obama program because it left the lower-court rulings against the administration in place.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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