Citing 'Unprecedented' Injunction, DOJ Takes DACA Fight to SCOTUS
The Justice Department said an injunction would persist for months if the appeal is allowed to go through the U.S. Court of Appeals for the Ninth Circuit first.
January 18, 2018 at 08:07 PM
4 minute read
The Supreme Court should bypass the Ninth Circuit and weigh in on a legal battle over an immigration program to avoid further disruption in immigration enforcement, the Justice Department argued in a petition to the high court Thursday.
Earlier this week, DOJ appealed a Northern California district court's preliminary injunction blocking the Trump administration's rescission of the Deferred Action for Childhood Arrivals program, which temporarily shields children of immigrants from deportation. But the Justice Department also took the case to the Supreme Court Thursday, attempting to bypass the appellate court.
“The district court's unprecedented order requires the government to sanction indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens—and, indeed, to confer on them affirmative benefits (including work authorization)—pursuant to the DACA policy,” the brief said.
The lawyers wrote that, without Supreme Court intervention, the injunction could last for months as an appeal works its way through the circuit court. And, should the circuit court rule against the government, an appeal could continue for more than a year, given the Supreme Court's calendar.
DOJ has not sought a stay in the district court, but in Thursday's filing, government lawyers wrote that, while some “harms” could be avoided by a stay, the government has an interest in avoiding abrupt changes in immigration enforcement and lengthy litigation over an agency decision “that is not even judicially reviewable.”
The brief also mentioned the potential for “onerous discovery.” The high court already stepped into the case late last year to block the district judge's order that would have required the government to disclose documents related to the decision to rescind the DACA program.
“From the start of these suits, all parties involved have agreed that time is of the essence,” the brief said. “Respondents, the government, and the district court alike all have repeatedly asserted that a speedy resolution is critical.”
President Donald Trump has criticized the Ninth Circuit, including in a tweet in which he said the court has a “terrible record of being overturned.” The appellate court on the West Coast has handed the president several losses, including on his various travel ban and sanctuary cities executive orders.
“It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts,” Trump tweeted following the ruling in the DACA case last week.
The Supreme Court rarely agrees to direct review. The high court's rules state that a petition to review a case that's pending in a court of appeals “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination.”
Sessions announced last year that the administration would rescind the DACA policy, arguing it was illegal to begin with. He cited the Supreme Court's 4-4 split in 2016, which left in place a Fifth Circuit ruling against a similar program for immigrant parents and an expansion of the DACA program.
In issuing an injunction against the rescission, U.S. District Judge William Alsup of the Northern District of California disagreed with that reasoning.
“This order holds that DACA fell within the agency's enforcement authority,” Alsup wrote in the opinion. “The contrary conclusion was flawed and should be set aside.”
Several lawsuits challenging the DACA termination are also playing out in the Southern District of New York. In those cases, DOJ has asked the Second Circuit to review the district court's decision that the termination of the program is indeed reviewable by the courts.
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