A pro-DACA rally. (Photo: Jason Doiy/ ALM)

President Donald Trump expressed confidence Wednesday that the U.S. Supreme Court will act in his favor on upcoming litigation to end DACA, a move that he said will help him negotiate with Democrats over funding the border wall.

During a freewheeling press conference, Trump sketched a scenario in which the high court strikes down the Deferred Action for Childhood Arrivals program, thereby creating an opportunity for him to resurrect some version of it and win over Democratic support for the $5.6 billion security wall at the Mexican border.

"I think it's going to be overturned in the United States Supreme Court, and I think it's going to be overwhelmingly overturned. I mean, nobody thinks that should have happened," Trump said. "So if we win that case—and I say this for all to hear—we'll be easily able to make a deal on DACA and the wall as a combination. But until we win that case, [Democrats] don't want to really talk about DACA."

Trump added, "I think they're foolish if they don't want to make a deal with DACA. Because if we get overridden, that means everybody that's been here has to leave the country."

Negotiations with Democrats over the fate of DACA were going well, Trump said, until the U.S. Court of Appeals for the Ninth Circuit in November upheld a lower court judge's injunction blocking the federal government's rollback of the so-called Dreamers program, which protects from deportation certain undocumented immigrants brought to the U.S. as children. The injunction was ordered by U.S. District Judge William Alsup of the Northern District of California.

Judge William Alsup of the U.S. District Court for the Northern District of California. (Photo: Jason Doiy/ ALM)

After the injunction, Trump said, Democrats no longer had any incentive to negotiate over the fate of DACA. "It was a disgraceful situation that a judge ruled the way the judge ruled. But we think it's going to be overturned," Trump said.

Just days before the Ninth Circuit ruled, U.S. Solicitor General Noel Francisco petitioned the Supreme Court, asking it to take the case before judgment. After the Ninth Circuit ruling, Francisco filed a supplemental brief, stating that "as a result of the court of appeals' decision, the court no longer needs to grant certiorari before judgment. The court can now consider the present petition as one for certiorari after judgment and, if it grants the petition, review the judgment of the court of appeals."

Theodore Boutrous Jr., a partner at Gibson, Dunn & Crutcher representing DACA recipients in the litigation, criticized Trump for treating the Supreme Court as if it can be used as a player in political negotiations.

"President Trump's comments display a disgraceful degree of disrespect for the Supreme Court and role of an independent federal judiciary," Boutrous said Thursday. "He also clearly has no understanding of the legal issues being litigated around the country and that the court is being asked to consider. The Ninth Circuit and Judge Alsup (and other courts) correctly enjoined the unlawful rescission of DACA."

Boutrous said there's no certainty the Supreme Court would agree to hear the DACA case in the first place.

"These rulings are at the preliminary injunction stage and thus not even final—so the president is getting way ahead of himself if he is counting on a victory," Boutrous said. "The court is not going to be swayed by his misguided political outbursts, but they undermine respect for the rule of law."

 

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