Supreme Court in waiting game on Trump administration bid to end DACA protection for immigrants

WASHINGTON – The Trump administration has been asking the Supreme Court since January 2018 to hear its case for ending the Obama-era program that protects undocumented immigrants brought to the United States as children.

It’s still waiting. 

On Monday, the court denied the Justice Department’s latest request for swift action, which neither upholds nor strikes down the program. None of the justices registered a dissent from the order. 

The inaction by a court stacked with five conservative justices has appeared to some as unusual, given that the administration first announced its plan to wind down DACA, the Deferred Action for Childhood Arrivals program, in September 2017.

The Supreme Court is at the center of the debate over President Trump's effort to end former President Barack Obama's DACA program. (Photo: J. Scott Applewhite, AP)

The plan was challenged immediately in federal courts from New York to California and blocked nationwide by judges in both of those states. Federal appeals courts in California and Virginia have extended the losing streak.

There are several theories for the high court’s reluctance to get involved:

  • Several court cases are still pending. Federal appeals courts in New York and the District of Columbia have yet to rule on the issue. Another federal appeals court in Texas is considering a separate lawsuit filed by states opposed to DACA.
  • There is no “circuit split.” The Supreme Court is more likely to consider a case when regional appeals courts have ruled differently on an issue. In this case, that would mean the DACA program would be legal in some states and illegal in others.
  • The administration’s plan to add a question on citizenship to the 2020 census is pending before the court, with a decision expected in the next few weeks. Like DACA, the case hinges on whether the administration followed proper administrative procedures. The justices could rule on the census and send the DACA cases back to appeals courts with instructions to take that ruling into consideration.

Perhaps more important than any of those reasons is the court’s perceived desire to avoid controversial topics in the wake of Associate Justice Brett Kavanaugh’s contentious confirmation last year and the presidential election next year.

“That is the single best explanation for what’s going on here,” said Stephen Vladeck, a University of Texas law professor.  

Whatever the reason, it now appears unlikely that the Supreme Court will decide whether to consider the DACA program until September at the earliest. That still would give it time to hear the case in the winter and decide it in the spring, in the midst of the 2020 election campaign. 

It’s also possible that if no appeals court upholds the administration’s plan to end the program, the justices could refuse to hear the case. That would leave DACA intact and represent a victory for immigration rights groups.

The program, established in 2012 without congressional approval, has protected 674,000 undocumented immigrants from deportation and enabled them to get work permits.

Opponents have argued that since former President Barack Obama created the program without Congress, Trump can end it the same way. But, to date, nearly all courts have said the administration’s action was “arbitrary and capricious” and would harm both the participants and the state and local governments benefiting from their economic activity.

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