Noel Francisco. Photo: Diego M. Radzinschi / ALM

The latest of President Donald Trump's Twitter salvos criticizing the Department of Justice was aimed today at a new, though unnamed target: Solicitor General Noel Francisco.

In an early-morning tweet, Trump took the Justice Department to task for failing to urge the U.S. Supreme Court to take up a case brought by Arizona defending its ban on the issuance of drivers' licenses to immigrants in the Deferred Action for Childhood Arrivals or DACA program.

A Justice Department spokeswoman said there would be no comment about the tweet.

In a 1998 essay on the role of the solicitor general that is posted on the Justice Department's website, former SG Seth Waxman wrote that “by long tradition the Solicitor General has been accorded a large degree of independence” in part because of his or her duty to the Supreme Court “to exercise restraint in invoking the Court's jurisdiction,” even though the SG is “of course an Executive Branch officer, reporting to the Attorney General, and ultimately to the President.”

The high court on Monday denied certiorari in Brewer v. Arizona Dream Act Coalition, in which a brief filed by Francisco on February 14 urged the court to hold or deny review of the case. The justices had asked the solicitor general to weigh in on the case last June.

The brief stated that the drivers' license case had been “overtaken by events” involving the controversial Obama administration DACA policy. “Arizona's opposition to DACA has largely been vindicated, and its concerns about the policy and its effects have been addressed,” the brief stated, referring to the Trump administration's decision to wind down DACA.

Francisco also pointed to another pending case testing the rescission of the policy, titled Department of Homeland Security, et al v. Regents of the University of California, et al, in which the government sought expedited review. On February 26, however, the Supreme Court denied the government's request without prejudice, stating that “It is assumed that the Court of Appeals will proceed expeditiously to decide this case.” The order tees up the prospect that the Supreme Court will decide on the fate of DACA next term.

Trump apparently was watching on Tuesday when Fox Business commentary Lou Dobbs railed against the government's brief, which he seemed to blame for the court's denial of review. “Are you kidding me?” Dobbs said. “What in the world is going on in our court system?”

Dobbs' guest for the segment was Harvard Law School professor Alan Dershowitz who told him, “stay tuned” for future action on the issue, suggesting that the SG and the court may have wanted to deal with the issue in other cases. Dershowitz also stated that “it is very, very hard to get review” from the court when the solicitor general urges against review.

Supreme Court scholar Josh Blackman mused on Twitter that “I never thought I would see a presidential tweet on a CVSG,” referring to the court's “Call for the Views of the Solicitor General” in the Arizona case. “What Trump does not realize, is that SG urged SCOTUS to deny review in AZ Dream Act case to leverage it to promptly review the DACA rescission case. This effort didn't pan out in hindsight, but it was a reasonable litigation strategy.”