Federal lawyers on Tuesday said they plan to go directly to the U.S. Supreme Court – bypassing a California appeals court that President Donald Trump dislikes – to overturn an injunction that forces the administration to keep in place an immigration program that protects some people from deportation who were brought to the United States illegally as children.
The U.S. Department of Justice on Tuesday filed a notice of appeal asking for the U.S. Court of Appeals for the 9th Circuit to review a decision by a California district court issued last week that required the government to maintain most aspects of its Deferred Action for Childhood Arrivals program, which provides legal residency and work permits to about 700,000 people brought by their parents across the border as children without documentation.
The government said it will also file a petition later this week to seek a direct review of the injunction by the Supreme Court, where the Trump administration has had more luck defending its policies.
“It defies both law and common sense for DACA – an entirely discretionary non-enforcement policy that was implemented unilaterally by the last administration after Congress rejected similar legislative proposals and courts invalidated the similar DAPA policy – to somehow be mandated nationwide by a single district court in San Francisco,” Attorney General Jeff Sessions said in a statement. “We are now taking the rare step of requesting direct review on the merits of this injunction by the Supreme Court so that this issue may be resolved quickly and fairly for all the parties involved.”
The White House decision to bypass the 9th Circuit isn’t completely surprising, given Trump’s frustration with the San Francisco-headquartered appeals court and its record of blocking his immigration policies.
The 9th Circuit and its three-judge panels have struck down two of Trump’s travel bans and also blocked a Trump order to withhold funding from so-called sanctuary cities. That April ruling prompted former White House Chief of Staff Reince Priebus to tell reporters, “It’s the 9th Circuit going bananas.”
Last week, after the U.S. District Court ordered the administration to maintain much of the DACA program, Trump posted a tweet expressing his displeasure in which he apparently mixed up the U.S. District Court with the 9th Circuit appeals court.
“It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts,” the president tweeted.
On Monday, California Attorney General Xavier Becerra said that he expected the federal government to appeal, but was ready to fight to keep the order in place.
“We are preparing … and once again we believe that we can prove the Trump administration acted arbitrarily and capriciously. If Donald Trump wants to change the law, he shouldn’t break the law. In a democracy you don’t do it this way. Maybe if you’re king you can make changes without having to follow the law, but not in America.”
The injunction was issued in a series of lawsuits filed in California and led by Becerra that charge that the U.S. Department of Homeland Security didn’t have the authority to end the DACA program, which was started by President Barack Obama, and that the federal government violated due process by granting legal status to so-called Dreamers and then summarily canceling it.
DACA is the focus of intense lobbying on Capitol Hill this week as legislators try to craft a permanent fix for the program as part of the budget bill, which must be finished by Friday to avoid a government showdown. Becerra said earlier he believed the injunction brought breathing room to those negotiations by removing the need for a Friday fix.
Those negotiations were derailed last week after President Donald Trump allegedly used profanity when referring to predominantly black countries in Africa and Haiti, questioning whether the United States should accept more immigrants from those places. Trump has denied the remarks but also said on Twitter that the debate that erupted around those comments likely killed any DACA deal.