Wall Street Journal
By Brent Kendall
February 26, 2018
The Supreme Court on Monday denied a Trump administration appeal that sought the swift cancellation of a program protecting undocumented immigrants who came to the U.S. as children.
The court’s move means the program, called Deferred Action for Childhood Arrivals, or DACA, will remain in place for the near future while additional legal proceedings and discussions in Congress continue.
The administration can’t end DACA for now because two lower-court judges have issued injunctions that block the White House from doing so.
The Supreme Court’s action turned down an unusual request by the Justice Department, which had asked the justices to intervene now even though litigation on the cancellation hasn’t finished in the lower courts. 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 position didn’t sway the justices, who rejected the request in a two-sentence order. There were no recorded dissents.
The Trump administration could seek high-court review again, if it chooses, after the case is first considered by a federal appeals court.
In a statement, White House spokesman Raj Shah called the DACA program “clearly unlawful,” and said it was improper for a lower court to block the administration’s move. Mr. Shah said the administration looks forward to having the case heard by the appeals court and the U.S. Supreme Court if necessary, “where we fully expect to prevail.”
The program has become a hot-button political issue, with Democrats and many Republicans saying those brought to the U.S. illegally as children should not have to pay a price for their parents’ actions. Others, however, say DACA encourages illegal immigration, and lawmakers and President Donald Trump have struggled to incorporate it into a broader immigration package that can pass Congress.
DACA is an Obama administration initiative adopted in 2012. Under the program’s terms, eligible participants who came to the U.S. under the age of 16 could obtain protection from deportation and receive work permits if they met a variety of conditions, including that they were a student or graduate and had no significant criminal record.
Roughly 800,000 young people have taken advantage of the program since its inception.
Mr. Trump announced last September that his administration was ending DACA. Trump officials cited the opinion of Attorney General Jeff Sessions, a leading opponent of illegal immigration, that the program was an unconstitutional exercise of power by former President Barack Obama without authorization by Congress.
The administration’s move effectively threw the issue to Congress to sort out, but lawmakers remain at an impasse on how and whether to authorize a new measure to protect DACA recipients. Several immigration proposals failed on the Senate floor earlier this month, leaving lawmakers with no clear path to a long-term solution.
Mr. Trump originally gave Congress until March to come up with a plan to help DACA recipients, known as Dreamers, but there is currently no end date for DACA because of the lower-court rulings that postponed the administration’s plans.
The decision is likely to take pressure off lawmakers in both parties to act on a legalization program for the DACA population. Many Republicans were reluctant to act from the start, and were being pushed ahead because DACA participants were set to start losing protections in March.
Democrats have been frustrated by GOP demands and 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.).
Judges in San Francisco and New York have ruled that legal challengers are likely to prevail on their arguments that the Trump administration acted arbitrarily and abused its discretion.
The judges said presidents can change policy on issues like immigration but have to 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.
The court decision 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 will not be considered even if they meet the criteria.
The Justice Department was seeking 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 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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