As President Donald Trump’s first year ends in a whirlwind of immigration policy initiatives, legal challenges and a threatened government shutdown in Congress over immigration, the administration is taking the rare step in at least one immigration skirmish of asking the U.S. Supreme Court to intervene.
The administration is directly appealing a ruling from earlier this week by U.S. District Judge William Alsup of San Francisco blocking Trump’s effort to dismantle the Deferred Action for Childhood Arrivals program.
Alsup’s decision was, in my view, sound. But while Trump’s reasons for seeking Supreme Court review may be suspect, the president might be right to seek quick resolution.
In the five years since President Barack Obama created the program, DACA has shielded approximately 800,000 undocumented immigrants who were brought to the United States as children from deportation.
But in September, the Trump administration delivered on its campaign promise by moving to dismantle DACA. The rationale was that the program was an unconstitutional usurpation of Congress’ power to remove noncitizens from the United States.
But ending a program that, according to a recent CBS News poll, has the support of 70 percent of Americans, has generated intense criticism and legal challenges, including the one before Alsup.
He granted a request by California and other states, as well as the University of California, to temporarily block Trump’s rescission of DACA, ruling that at least for now, the Trump administration must allow recipients of DACA to apply for renewal. He also found that the Trump administration had violated the Administrative Procedure Act.
Alsup explained that only the courts can decide if a program is unlawful, and that has yet to happen. Therefore, the order stated Trump’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
The Department of Justice is taking the unusual step of asking to bypass the court of appeals and request that the Supreme Court immediately review the district court injunction. Attorney General Jeff Sessions stated it “defies both law and common sense for DAC… to somehow be mandated nationwide by a single district court in San Francisco.”
But he seems to forget that a federal court judge in Texas came to the very same conclusion. In 2015, U.S. District Judge Andrew S. Hanen issued a nationwide injunction barring Obama from implementing the Deferred Action for Parents of Americans, which sought to offer legal status to undocumented parents of U.S. citizens and lawful permanent residents. The Supreme Court deadlocked 4-4 on the matter, and the injunction remained in place.
Sessions in fact relied on the DAPA ruling in claiming that DACA was unlawful. Nonetheless, there may be good reason for an immediate appeal from the district court to the Supreme Court. As Sessions said, the government sought review “so that this issue may be resolved quickly and fairly for all the parties involved.”
The rescission of DACA is an issue of national importance. Moreover, the stakes for the noncitizens, as well as the states, are significant enough to warrant Supreme Court review.
The Trump administration no doubt believes that the best chance for overturning the injunction is before the Supreme Court. The administration has taken a beating in the many challenges to its immigration initiatives, including the three iterations of the “travel ban” applicable to noncitizens from predominantly Muslim countries.
The Supreme Court has been more willing to side with the government. In December, for example, it lifted court of appeals’ injunctions to allow implementation of aspects of the latest version of the travel ban.
In the end, the lawfulness of DACA should be decided by the nation’s highest court. The Supreme Court can settle this issue with a clear ruling that must be respected nationwide.
But whatever the court’s decision, the rise and fall of DACA proves once again that the nation needs Congress to exercise its constitutional responsibility and enact immigration reform.
Kevin R. Johnson is dean of the University of California, Davis School of Law. Reach him at firstname.lastname@example.org.