Update: Supreme Court Declines DACA Review

On February 26, 2018, the Supreme Court declined to hear the Trump Administration’s appeal to the decision for the DACA case in the Northern District of California. In an unusual step, called “certiorari before judgment,” the Department of Justice (DOJ) had not only appealed to the Court of Appeals for the Ninth Circuit, based in San Francisco, to review the Northern District of California’s decision, but simultaneously requested the Supreme Court to immediately take up the case, bypass the Ninth Circuit, and issue an emergency ruling on the merits. Certiorari before judgement has typically been used only in major cases involving national crises that require immediate resolution, such as in the cases Youngstown Sheet & Tube Co. v. Sawyer, when President Harry Truman attempted to seize control of the U.S. Steel industry for the war effort in Korea, or U.S. v. Nixon when President Richard Nixon’s refused a special prosecutor’s subpoena to turn over White House tape recordings.

Earlier, on February 13, 2018, Judge Nicholas Garaufis for federal district court for the Eastern District of New York issued a nationwide preliminary injunction against the Trump Administration’s recession of the Deferred Action for Childhood Arrivals (DACA) program. Judge Garaufis found that the Plaintiffs, i.e. the State of New York, would be more substantially likely to prevail on the merits that the DACA rescission by the Department of Homeland Security (DHS) “was arbitrary, capricious, and an abuse of discretion,” and that the Plaintiffs would suffer an irreparable harm if the program were rescinded. In weighing the equities of the case along with the public interest, Judge Garaufis found that it would be against the public interest to let work permits for DACA recipients expire, especially in cases where DACA recipients support their families. Judge Garaufis thus decided in favor of the Plaintiffs in order to preserve the status quo before the Trump Administration canceled the DACA program.

This is the second case where a federal judge has issued a nationwide preliminary injunction against the Trump Administration’s recession of DACA; last month, Judge William Alsup of the federal district court of the Northern District of California rendered a similar decision. Like the decision for the case in California, Judge Garaufis’ decision only orders that the immigration agencies of the Department of Homeland Security (DHS) continue to resume processing of DACA applications—which were restarted by the injunction issued by Judge Alsup. Judge Garaufis made clear, however, that his court’s decision is not a ruling on the merits of whether the Trump Administration had, or has, the lawful authority to rescind DACA.

With the Supreme Court’s decision not to hear the DOJ’s emergency appeal, the DACA case will likely take several months to make its way through its normal appeal process in the Ninth Circuit Court of Appeals. With the current injunctions issued by the New York and California federal courts, the Trump Administration’s March 5, 2018 deadline for the expiration of the DACA executive order no longer holds. With the urgency of the situation abated, it is now unclear how this decision will affect the crafting of DACA legislation currently ongoing in the U.S. Senate, or if we will see a legislative solution to this problem in the near future.