Trump Administration Asks Supreme Court to Review District Court Injunction in DACA Rescission Case
Amy Howe on SCOTUSBlog reports that the Trump administration is seeking the immediate review of the district court’s injunction barring the rescission of the Deferred Action for Childhood Arrivals (DACA) program. Yesterday, the government filed a petition for certiorari before judgment. It urged the justices to take on the case immediately, telling them that 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.” Unless the court steps in, the government continued, the district court’s order could remain in effect for months while it appeals to the 9th Circuit; if the 9th Circuit were to leave the order in place, the government emphasized, “it could continue for more than a year given the Court’s calendar.”
The “government also told the justices that the district court’s ruling is simply wrong.” Howe summarizes the arguments, namely that the decision to end DACA “falls within the agency’s discretion and is thus not reviewable by courts.” “Somewhat surprisingly, the government did not ask the justices to put the district court’s ruling on hold while its appeals play out.”
Howe explains that direct and immediate review of a district court in the Supreme Court (and bypassing the court of appeals) is incredibly rare:
“As the attorney general acknowledged, it is indeed rare for a losing party to ask the Supreme Court to weigh in before the court of appeals has had a chance to rule. The Supreme Court’s rules indicate that certiorari before judgment `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 in this Court.‘ As Kevin Russell has observed, the court has granted review before judgment `in only a handful of cases over the last seventy-five years.’ Most of those cases, Russell wrote, fall into one of at least three categories: The justices granted review to allow the court to hear a case at the same time as another one that it had already agreed to review through normal channels; the federal government petitioned for review; or the cases involved `international relations and presidential authority, particularly in the context of the president’s war powers.’ The DACA case obviously meets the second criterion; we’ll know soon whether the justices will agree that the case is so important that it warrants immediate review.” (emphasis added).
Here are my thoughts, printed in the Sacramento Bee, on Supreme Court review of the case. Stay tuned!
KJ