Last week I described how federal District Court Judge William Alsup had (largely) enjoined the Trump administration from ending the Deferred Action for Childhood Arrivals (DACA) program. To be specific, his order read as follows:
For the foregoing reasons, defendants ARE HEREBY ORDERED AND ENJOINED, pending final judgment herein or other order, to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments, with the exceptions (1) that new applications from applicants who have never before received deferred action need not be processed; (2) that the advance parole feature need not be continued for the time being for anyone; and (3) that defendants may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.
It was reported yesterday that the Department of Justice (DOJ) had decided to appeal that decision to not one court, but two: the Court of Appeals for the Ninth Circuit, and the Supreme Court. In a DOJ press release, Attorney General Jeff Sessions explained:
It defies both law and common sense for DACA — an entirely discretionary non-enforcement policy that was implemented unilaterally by the last administration after Congress rejected similar legislative proposals and courts invalidated the similar [Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)] policy — to somehow be mandated nationwide by a single district court in San Francisco. ... It is clear that Acting Secretary Duke acted within her discretion to rescind this policy with an orderly wind down. This was done both to give Congress an opportunity to act on this issue and in light of ongoing litigation in which the injunction against DAPA had already been affirmed by the Supreme Court. We are now taking the rare step of requesting direct review on the merits of this injunction by the Supreme Court so that this issue may be resolved quickly and fairly for all the parties involved.
DOJ did not fully explain its logic in deciding to take the unusual step of seeking review before the two courts, but a recent tweet from the president likely explains it:
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.
— Donald J. Trump (@realDonaldTrump) January 10, 2018
The idea that the Ninth Circuit is the least favorable circuit court for the government as it relates to immigration is not always borne out in practice. In fact, between January and July 2017, the court reversed the Board of Immigration Appeals (BIA) in about 12.1 percent of the 390 decisions it reviewed, well below the reversal rate for the Seventh Circuit (24.1 percent of 29 decisions), and not far off the national average of 11.7 percent. That said, it and the Fourth Circuit have been particularly unfavorable to the president as it relates to his signature immigration policies.
The decision to appeal directly to the Supreme Court a decision that is pending before circuit court is indeed rare, and is disfavored under the Court's rules. Specifically, Rule 11 of the Rules of the Supreme Court states:
Certiorari to a United States Court of Appeals before Judgment
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, 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.
That is a standard that DOJ should be likely to meet in this case. Whether the president has the authority to unilaterally grant immigration protections that Congress has specifically declined to authorize is a question of "imperative a public importance". As George Washington University Law School Professor Jonathan Turley has stated in connection with "Nonenforcement Policies Under the Obama Administration":
Many of these changes have been defended as discretionary acts or mere interpretations of existing law. However, they fit an undeniable pattern of circumventing Congress in the creation of new major standards, exceptions, or outright nullifications. What is most striking about these areas is that they are precisely the type of controversial questions designed for the open and deliberative legislative process. The unilateral imposition of new rules robs the system of its stabilizing characteristics in dealing with factional divisions.
It doesn't get much bigger than that under our constitutional system of checks and balances. The Supreme Court's ultimate decision will have serious ramifications for executive branch authority for years to come. In the shorter term, Judge Alsup's order would extend additional benefits to certain DACA beneficiaries under a scheme the attorney general has deemed "an unconstitutional exercise of authority by the Executive Branch." Simply put, this is a big deal that the Supreme Court will ultimately have to address; it might as well do so sooner rather than later.
Interestingly, however, Politico reports that as of January 16, DOJ had not sought to have Judge Alsup's injunction stayed. If true, this is likely a shrewd political move, intended to give Congress the opportunity to negotiate a bill that would contain a "DACA fix" along with additional enforcement tools to mitigate the consequences that an amnesty of the 690,000 DACA beneficiaries would cause.
As my colleague, Mark Krikorian, has explained:
Upgrading the ... illegal aliens with DACA would be a formal amnesty. And there are two major problems with any illegal-alien amnesty: It serves as an incentive for future illegal immigration, and it has downstream legal-immigration consequences.
Formalization of DACA would be no different from any other amnesty in this regard. And addressing those two harmful consequences of amnesty is what dictates what should be in any package. This isn't haggling in the bazaar; it's damage control.
How the Supreme Court treats DOJ's ultimate request under Rule 11 will speak volumes on how the Court views the treatment that the lower courts have afforded this president on his signature immigration initiatives. As the Christian Science Monitor presciently opined just after the election in November 2016:
Since becoming chief justice of the United States in 2005, John Roberts has been on a mission to lift the US Supreme Court above the partisan politics that has consumed other American institutions, trying to insulate the court from the public's overall declining confidence in the federal government.
His success to date has been mixed, to put it mildly. The election of Donald Trump last week — which Republicans see as vindicating GOP senators' ongoing refusal to fill a vacancy on the high court — will only test that mission further.
If that is truly the chief justice's mission (or even his concern), the intemperance of certain judicial decisions as they relate to President Trump likely has the highest-ranking judicial official of the United States on edge. DOJ will give him an opportunity to restore balance to our constitutional order; the only question is whether he (and at least four other justices) take it.