If granted, would allow Trump administration to circumvent 9th Circuit in attempting to overturn District Court injunction against terminating DACA
After a bizarre and completely unfounded San Francisco federal District Court injunction against the Trump administration wind-down of DACA, the Trump administration both filed for leave to appeal in the 9th Circuit and filed a Petition for a Writ of Certiorari Before Judgment in the Supreme Court. That latter Petition would circumvent the 9th Circuit.
The Trump administration, however, did not ask the Supreme Court to stay the District Court order, arguing that a stay would create more problems in the administrative wind-down of DACA:
This Court’s immediate review is warranted. The district court has entered a nationwide injunction that requires DHS to keep in place a policy of non-enforcement that no one contends is required by federal law and that DHS has determined is, in fact, unlawful and should be discontinued. 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. That policy is materially indistinguishable from the DAPA and expanded DACA policies that the Fifth Circuit held were contrary to federal immigration law in a decision that four Justices of this Court voted to affirm. Without this Court’s immediate intervention, the court’s injunction will persist at least for months while an appeal is resolved and, if the court of appeals does not reverse the injunction, it could continue for more than a year given the Court’s calendar.
To be sure, some of these harms could be avoided by a stay of the district court’s order. But a primary purpose of the Acting Secretary’s orderly wind-down of the DACA policy was to avoid the disruptive effects on all parties of abrupt shifts in the enforcement of the Nation’s immigration laws. Inviting more changes before final resolution of this litigation would not further that interest. Moreover, a stay would not address the institutional injury suffered by the United States of being embroiled in protracted litigation over an agency decision that falls squarely within DHS’s broad discretion over federal immigration policy and that is not even judicially reviewable. A stay also would not address the risk that the onerous discovery and administrative record orders that already justified this Court’s intervention will be reinstated and create the need for additional rounds of interlocutory appellate review. Accordingly, the government respectfully submits that the most suitable and efficient way to vindicate the law in these unique circumstances is to grant certiorari before judgment and resolve the dispute this Term.
Instead of seeking a stay, the Trump administration subsequently filed a Motion to Expedite (pdf.)(embed at bottom of post) consideration of the Cert. Petition and order the plaintiffs to file their response quickly. The Court just granted that request:
The motion of petitioners to expedite consideration of the petition for a writ of certiorari before judgment is granted in part. As respondents have agreed, they will file their briefs in opposition by February 2, 2018.
This may be an indication the Supreme Court is seriously considering taking the case in such an expedited fashion. As Amy Howe at ScotusBlog pointed out at the time the Cert. Petition was filed, this is the exception not the rule:
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.
If the Supreme Court takes the case, it will have so super-expedite briefing and oral argument if it is to be resolved this term (by the end of June). The Supreme Court may want to do so since it is facing an ever-increasing number of nationwide injunctions by lower courts disrupting the normal administration of executive branch powers, such as the multiple visits to the Supreme Court (and multiple stays issued) involving the Trump Travel Orders.
The NY Times note just a few days ago how the federal district courts have taken it on themselves to serve as a political check on the executive, with DACA being just the latest example, A DACA Question: Should Judges Use Local Cases to Halt National Orders?
When a federal judge in California ordered a stop last week to a key plank of President Trump’s immigration agenda, he revived a debate that has simmered in this age of partisanship: the role of the impartial judiciary in American democracy.
The judge, William Alsup of the Northern District of California in San Francisco, used a local case to impose a nationwide stop on Mr. Trump’s order to end a program that protects young undocumented immigrants in the United States.
The tactic has gained popularity among federal judges as a tool to combat perceived executive overreach. But legal scholars say it is helping to erode the idea of an impartial judiciary, and Judge Alsup’s decision opened him to critiques that he overstepped his boundaries by applying national orders in a regional case….
The use of local cases to issue national orders occurred only a few times until President Barack Obama’s second term, when Republican state attorneys general turned to that strategy about half a dozen times to stop some of his major initiatives….
When appeals courts do not block these injunctions, the Supreme Court can be forced to intervene, as it did with the Obama-era immigration case.
There is speculation that the Supreme Court will address universal injunctions in the coming year. “The justices don’t like the districts courts changing national policy overnight,” said Josh Blackman, a professor at South Texas College of Law Houston.
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