U.S. Justice Department in Washington. Credit: Mike Scarcella / ALM

The Department of Justice has imposed an Oct. 31 deadline on the U.S. Court of Appeals for the Ninth Circuit to decide a DACA case, marking the second time it's taken such an action this year.

In a letter sent to the Ninth Circuit Wednesday, Main Justice wrote it will “petition the Supreme Court for a writ of certiorari” to review a preliminary injunction issued by the District Court for the Northern District of California if the deadline is not met. The underlying case involves a decision allowing the Obama administration's Deferred Action for Childhood Arrivals policy to proceed nationwide.

The injunction calls for the Department of Homeland Security “to keep in place a discretionary policy of non-enforcement that no one contends is required by federal law and that DHS has determined is unlawful and should be discontinued,” wrote DOJ litigation counsel Mark Stern.

“The district court's order requires the government to indefinitely tolerate—and, indeed, affirmative sanction— an ongoing violation of federal law being committed by nearly 700,000 aliens pursuant to the DACA policy,” he added.

Read the letter:

The instance marks Main Justice's second threat of SCOTUS intervention against a circuit court this year over DACA enforcement. On June 14, the department threatened to go to SCOTUS if the U.S. Court of Appeals for the Seventh Circuit didn't rule on the government's effort to halt a nationwide injunction restricting the department's power to deny sanctuary city funding.

The underlying case before the Ninth Circuit concluded on Jan. 9, with the court ordering DACA to proceed pending resolution of the litigation. The Supreme Court declined to grant a petition for a writ of certiorari in February before judgment. The high court, however, had “assumed the [Ninth Circuit] would 'proceed expeditiously to decide the case.'”

The Ninth Circuit heard the most recent oral arguments in this case on May 15.

U.S. Attorney General Jeff Sessions has repeatedly criticized the Ninth Circuit, and judges in general, for what he sees as judicial overreach. That's included decisions on DACA, the Trump administration's travel ban, and last week's Second Circuit decision allowing the deposition of Commerce Secretary Wilbur Ross in a suit over a 2020 census question on immigration status.

Speaking at a Heritage Foundation event Monday, a conservative group sympathetic to the Trump administration's policies, Sessions repeated his oft-spoken criticism of nationwide injunctions as example of what he described as “judicial encroachment.”

Since President Donald Trump was elected, Sessions said, 27 district courts have issued these injunctions. The Supreme Court declined the Justice Department's invitation, last term in the travel ban litigation, to curtail the power of federal trial judges to issue nationwide injunctions.

“Courts ignore these constitutional limits at their peril,” warned Sessions. He said any judges overstepping boundaries makes him or her open to criticism as any other political leader “and the same calls for their replacement.”