The U.S. Supreme Court on Tuesday called for an expedited response to the appeal by President Donald Trump’s administration of a federal district judge’s nationwide injunction that restored the Deferred Action for Childhood Arrivals program.
The justices’ order was largely procedural, and the supporters of the DACA program had suggested they were willing to speed up the filing of their briefs, in which they still plan to argue that the high court should not take up the administration’s appeal but should let a federal appeals court conduct its own review of the injunction first.
But the order underscores the fact that as the immigration debate remains stalled in Congress, the nation’s highest court may step in and consider the legality of the Trump administration’s effort to end the program of deportation relief, created by President Barack Obama, for young undocumented immigrants who were brought to the United States as children.
The Trump administration on Jan. 18 asked the high court to take up the DACA injunction, which restores the program for those currently enrolled and would allow them to renew their applications. The appeal in U.S. Department of Homeland Security v. Regents of the University of California (Case No. 17-1003) was unusual in that the administration is also appealing the injunction through the normal route, to the U.S. Court of Appeals for the 9th Circuit, in San Francisco, while also asking the justices to bypass that court.
The appeal also asks the justices to add the case to its docket for its current term, which is already packed with blockbuster cases. However, the administration did not seek a “stay” of the injunction, meaning it did not seek to block it from taking effect. That means the administration acceded to the partial restoration of the DACA program. It said it was seeking to keep immigration policy orderly.
DACA status for some recipients was to begin to expire on March 5, a date that has been driving the debate in Congress over the future of so-called “dreamers.”
The Migration Policy Institute, a pro-dreamers think tank in Washington, estimates in a report that of the 690,000 DACA participants, 20 percent were enrolled in high school as of September 2017, 18 percent were enrolled in college, and 44 percent had completed high school but were not in college. The remaining proportions had completed some college but weren’t currently enrolled (15 percent), or had completed at least a bachelor’s degree (4 percent).
Under the program’s age guidelines, DACA recipients are currently age 15 to 32. Younger applicants would age into the program at age 15, but the court injunction restoring DACA does not allow for that.
On Jan. 19, the Trump administration filed a motion with the Supreme Court seeking to expedite review on whether to take up its appeal. The motion suggested that the challengers to the rescission of DACA, which include the state of California, the University of California system, and others, respond by Jan. 22.
“Expedited consideration is warranted based on the imperative public importance of this case and the urgent need for a prompt resolution,” the administration’s motion said.
California and the other plaintiffs who challenged the administration’s effort to dismantle DACA responded that they would be filing briefs urging the Supreme Court not to take up the case at this stage and to let the 9th Circuit court consider the case. But they agreed they could cut short the normal time they would have to respond to the government’s appeal—30 days—and file their briefs by Feb. 2.
The plaintiffs pointed out that only rarely had the Supreme Court taken up a so-called appeal “before judgment” from the appropriate lower court, such as in the 1974 case involving the Watergate tapes and President Richard M. Nixon, or the 1952 steel industry-seizure case involving President Harry S. Truman.
On Tuesday, the Supreme Court agreed to the plaintiffs’ suggestion, setting Feb. 2 as the response date. The plaintiffs will submit more detailed arguments why the justices should not take up the DACA case right away.
However, the justices may be inclined to take up the administration’s request. If they do, it will add one more blockbuster case to a term that is shaping up as historic.
A version of this news article first appeared in The School Law Blog.