Strategy of seeking to fast track SCOTUS review, but not fast track it so much that it would interfere with DACA deal negotiations.
The government just filed a Petition for Writ of Certiorari Before Judgment (full embed at bottom of post)(pdf.) in the Supreme Court seeking pre-judgement review of the federal District Court order preventing the Trump administration from terminating DACA.
That District Court decision was absurd, as pointed out when we covered the decision, Judge prevents Trump from reversing Obama DACA policy.
The government has filed in the 9th Circuit for review, but also is seeking to have the Supreme Court review the case immediately. Significantly, the government does not seek an immediate stay.
The government’s Petition is embedded at the bottom of this post, but here is the key portion:
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.
How does this tactic make sense considering the Supreme Court already issues a stay of a lower court decision in this very same case, and on multiple occasions issued stays as to lower court overreach on Trump travel orders?
The best I can surmise is that Trump doesn’t want to win right now, or lose right now, he wants a DACA deal. By putting the case on a fast track, but not seeking an immediate stay, Trump keeps a DACA deal on the table.
MORE TO FOLLOW
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