Supreme Court Declines To Hear DACA Appeal

Supreme CourtThe Supreme Court turned down the effort of the Trump Administration to circumvent the United States Court of Appeals for the Ninth Circuit and hear the challenge over the termination of the Deferred Action for Childhood Arrivals (DACA) program.  The decision not to grant review is clearly a victory for challengers of the Trump policy but it is also important not to read too much into the decision given the procedural posture of the appeal.  Notably, on  Tuesday the Supreme Court ruled in another immigration case and adopted the type of narrow interpretation sought by the Administration in the DACA litigation. In its decision  in Jennings v. Rodriguez, the Court overturned the Ninth Circuit and rejected the right to twice-a-year bond hearings.  Justice Samuel A. Alito Jr ruled that “[t]he meaning of the relevant statutory provisions is clear—and clearly contrary to the decision of the Court of Appeals.”

DACA was scheduled to end on March 5th due to the six-month deadline set by the Trump Administration after announcing the change in policy.  President Barack Obama did not comply with the Administrative Procedures Act (ACA) in creating DACA and Trump sought the same path in rescinding it.  However, federal District Judge William Alsup of the US District Court for the Northern District of California ruled against the move and enjoined the enforcement of the policy.  The Administration was clearly not eager to go back before the Ninth Circuit, which is viewed as both liberal and hostile by the White House.  Accordingly, the Administration sought to get an immediate review with the Supreme Court.  
There is growing unease over district courts issuing national injunctions on such policies but that issue as well as the merits will have to be first addressed by the Supreme Court.
The irregularity of leap-frogging over an appellate court is clearly the primary reason for the declination by the Supreme Court. It has been 14 years since the Court last allowed such an expedition. The justices are unlikely to view this circumstance as particularly pressing.  Congress and the President have stated an interest in solving this issue with new legislation — reforms that would moot this case.  Moreover, the only cost is that these individuals may be extended in their time in the United States even if no solution is found.  That is balanced against the loss of an opinion from the Ninth Circuit, which makes for a better informed and supported review (assuming the Court ultimately grants cert).
Notably, the Court stated  “It is assumed that the Court of Appeals will proceed expeditiously” to decide the case, U.S. Department of Homeland Security v. Regents of the University of California.

40 thoughts on “Supreme Court Declines To Hear DACA Appeal”

  1. Does anyone here, including Professor Turley, know how immigration policy is established? My guess is that it is through legislation. Obama committed a crime of high office and “DACA” does not exist because it discuses hypothetical policy which the legislative branch did not pass.

    “…courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

  2. Children should not pay for the crimes of their parents. DACA is about that principle.
    Children should not pay for the crimes of their parents, nor grandparents, nor 12 generations great grandfathers.
    An aunt was burned in Salem. I can’t blame today’s Christians.
    Some Steeles in Virginia in Colonial times (gasp!) owned slaves. I can’t be blamed for that.

    (There is, of course, a crime ongoing today which our collective children will have to pay for. But that is a bit off topic.)

    1. Children are not state property. Children must be taken care of by their parents. Children must stay with their families and stay with their countrymen. This incoherent nonsense is the “Newspeak” of fiction.

  3. Why is the court involved in this matter of “executive orders” ?? Are they Really considering the idea that one president cannot end an Executive order issued by his predisessor ¿?

    1. I just read about that this morning. Yesterday I had no idea what you were getting at, Dr. Benson.

  4. Expect SCOTUS to continue verdicts against labor, in furtherance of the U.S. oligarchy and income inequality, with its decision in a case currently before the court.
    “In 2017, just two men, Zuckerberg and Bezos, made the same amount of money as the entire cost of the food stamp program ($1.50 per meal for 42,000,000 people).”
    “America’s richest 2% made more money in 2017 than the cost of the entire safety net”. (Both statements are based on data from Forbes and Credit Suisse).
    Zuckerberg avoids taxes with his “philanthropy” which is used to promote computerization as a teaching replacement. But his privileged kid will be like Gates’ offspring, sent to schools that reject the tech tyrant schemes.
    And, Bezos like Gates, chose to reside in a state with no income tax.

    1. Linda – none of your rant has anything to do with the case before the court which is about forced contributions to unions by non-union members.

        1. David Benson – the worst thing that happened to education was adding unions to the mix. Unions are really out for themselves, not the membership.

          1. First, you didn’t address the question. You diverted to a matter of you opinion. You should document both sentences after addressing the question.

    2. By leaving the lower court rulings in place, SCOTUS has done a temporary favor for the Dreamers–depending upon how many of them can afford the $495 fee for renewing their work permits. The greater the number of Dreamers who renew their work permits under the lower court rulings, the longer it will take to begin deportation proceedings against them. Some observers have estimated that the work permits of most of the Dreamers might not expire until sometime in 2019. That could put the initiation of deportation proceedings against most of the Dreamers on the cusp of the primary election season of 2020. And that, in turn, would put Trump on the horns of the following constructive dilemma:

      If Trump deports the Dreamers, then Trump will not be reelected in the general election.
      If Trump does not deport the Dreamers, then Trump will not win the Republican nomination for president in 2020.
      Either Trump deports the Dreamers or Trump does not deport the Dreamers.
      Either Trump does not get reelected or Trump does not get reelected.

      The only way out for Trump is to get the Republicans to send him a DACA bill. He’s not even trying to do that. In fact, Trump’s insistence upon ending the visa lottery system for legal immigration effectively torpedoed the most viable DACA bill in The Senate.

    1. Which he did. March 5th. Then made a clear and impossible to mistake offer which included everything needed and it was rejected by the left. What is one to conclude. The left wants to keep using the Dacas until they are no longer useful then having already kicked them off the bus run over them. All the left the socialists have to do is provide a few votes but oh no. Pelosi and Schumer are out side singing ‘we don’t need no brown infestation we don’t need to Lah Teen Ohs!’ There you have it Schmuckly Putz, Pelosillyni and the Progressives racist scum to the core.

  5. The activist plaintiffs and 9th Circuit judges seem intent on testing how far they can intrude on the political process. Knowing how poorly Congress, specifically the Senate has been performing its due diligence on immigration policy, it was quite provocative for the the 9th to issue a temporary injunction right at the time Congress was working toward a deadline for a compromise deal. The 9th, whether intending to, or not, removed the motivation of the March 5th deadline for a DACA bill to pass both houses, and did not even extend the deadline to another one. This kind of judicial mischief is quite unhelpful, I would argue, to the very people the plaintiffs pose as representing.

  6. President Barack Obama did not comply with the Administrative Procedures Act (ACA) in creating DACA and Trump sought the same path in rescinding it.

    I’m not clear why an executive branch policy that violates the ACA can legally be upheld by any court. I’m also not clear why one administration cannot terminate a previous administrations policy such as DACA. It’s not law, it’s policy, right?

    1. There is no legal basis for any Court to take the power away from one administration over another. And us regular folks just keep taking it up the a—.

      1. Mike Peterman said, “There is no legal basis for any Court to take the power away from one administration over another.”

        According to the Wikipedia article on The Administrative Procedures Act, “Courts have also held that the U.S. President is not an agency under the APA. Franklin v. Mass., 505 U.S. 788 (1992).”

        Even though The POTUS is not an agency under the APA, the Immigration and Customs Enforcement agency is, presumably, an agency under the APA. Accordingly, if the rule-making procedures of ICE are subject to judicial review under the APA, then any Executive Order of any POTUS that changes the existing rules of ICE should, supposedly, be subject to judicial review under the APA.

        Or so Turley’s argument would seem to have it. I have no idea if Turley’s correct on that count. It seems a bit fishy to me, though. If the POTUS is not an agency subject to judicial review under the APA, then how would the EO of any POTUS become subject to judicial review under the APA just because that EO changes the existing rules of an agency that is subject to judicial review under the APA?

        1. This question?

          If the POTUS is not an agency subject to judicial review under the APA, then how would the EO of any POTUS become subject to judicial review under the APA just because that EO changes the existing rules of an agency that is subject to judicial review under the APA?

          I believe you answered your own question and by extension mine as well. If POTUS writes an EO directing a change in agency rules, then I would imagine the rule change is subject to the APA process; not the EO itself.

          What I still don’t understand is how an agency like ICE can rewrite rules directed by an EO that defies the law passed by Congress? Does the APA only concern itself with rule-making that enforces the EO and not the underlying law? Was the original DACA EO implemented without being challenged like Trump’s planned rescission has been? I ask that last question because it seems as though Obama’s EO is treated like it can trump the actual law if it gets through the APA process without an effective challenge, and then Trump’s EO cannot erase “approved” rule-making even if those rules defied the original law.

          If the POTUS is prevented from “faithfully executing” the laws due to existing rules, then what stops a POTUS from defying a court challenge, directing his agency to change the rules however necessary, and then proving his case in court?

          1. Olly, thanks for answering my question. The EO changes the existing rule without undergoing the usual administrative procedure that would ordinarily be subject to judicial review. Unfortunately, I am unable to answer your questions. Except that, it would seem to make constitutional sense to exempt the POTUS from the APA while keeping the agencies under the executive authority subject to the APA and judicial review.

            If a given EO thwarts the legislative intent of a current, or a previous, Congress, and if none of the States bring a court challenge to that EO (unlike Texas did with DAPA), then impeachment of the POTUS for abuse of power appears to be the only remaining check on the chief executive. Were the Congress just as divided on the impeachment question as it had been divided over the enactment of its legislative intent, then the POTUS would remain unchecked until the people elect either or both a new Congress and a new President.

            1. L$D,
              If an EO adversely impacts (undermines the enforcement) of existing law, then I would expect the APA process is there to prevent the implementation of the ordered change. It does not make constitutional sense to exempt POTUS from any administrative oversight either. The agencies are not supposed to function as some disconnected 4th branch of government, regardless of how utilitarian their cause is advertised.

            1. You’re welcome, Olly. If you’d like, you could answer the question I posed to Mike Peterman just upstream from here. Or not.

  7. I beg to differ as the SCOTUS could and should have sent a message to the lower courts about judicial activism. They didn’t have to rule on the issue and just listen to the challenge. By taking that next step, the Dems would have finally been forced to actually negotiate. It’s a lost opportunity but yesterday’s Souter ruling certainly shows the direction SCOTUS would be taking.

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