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Trump admin files for Supreme Court review of DACA case, but does not seek emergency stay

Trump admin files for Supreme Court review of DACA case, but does not seek emergency stay

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.



Regents v Trump – DACA – Petition for Supreme Court Review by Legal Insurrection on Scribd


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I like how they think. Stable. Geniuses … heh

Whether Trump wants, or does not want, a Congressional deal on DACA is not answered by this situation. And, it is largely irrelevant.

What is relevant is that the Administration is requesting that the SCOTUS immediately rule on the issue of whether the DHS decision with regard to DACA program was 1)legal and 2)whether it is judicially reviewable. These two questions have to be answered for the court to rule on the lower court’s arguments.

The Administration is choosing not to argue that the initial action of the Obama DHS, in setting up DACA in the first place, was not within the authority of the DHS. The Court has already found that the establishment of DAPA and the expanded DACA were outside the authority of the DHS, or the Obama administration. To argue that DACA, itself, is also outside the authority of the DHS to implement, while a likely winner, would force the administration to defend its policy of prioritizing its deportation efforts. And, the administration does not want to place itself in the position of not being able to prioritize its enforcement efforts or to detract from the more important points of limiting judicial oversight of such enforcement.

On the political side, as noted, the administration wants to keep future deportation of DACA registrants alive to be used as leverage for Congressional approval of other administration agenda items.

notamemberofanyorganizedpolicital | January 18, 2018 at 11:12 pm

Daca, daca, daca……

To quote PinkAboutIt on Twitter:
“#FISAGate is obamas legacy

“I have a feeling democrats won’t be talking about DACA next week .”


This all leaves me confused.
If we look at the law, then we see that Obama created DACA out of whole cloth making it an illegal law. Why cannot Trump rescind an illegal law?
If we assume that Obama had the legal right to create DACA, then we must assume Obama had the legal right to rescind DACA himself. If not, then you run into the absurd situation where you cannot destroy what you create. If Obama has the ability to rescind DACA, then every President must have the ability to rescind DACA or else you encounter the issue of Obama, as President, has more rights and power than does other Presidents which is an impossibility. Therefore, if Obama could create DACA legally, then he must be able to rescind DACA which means any President, Trump included, should be able to rescind DACA. No matter how you argue this, involving the SCOTUS should not be necessary and should the SCOTUS rule by anything less than unanimous, then we will know the SCOTS to be corrupt.
Remember when this country used to advertise itself as a country of laws?

    Milhouse in reply to Cleetus. | January 19, 2018 at 9:06 am

    The answer is that the judge agreed that Trump can cancel DACA, if he wants to. However, the judge says, Trump doesn’t want to end DACA. He’s said so many times. He doesn’t want to deport the DREAMers, he wants Congress to legalize them. The reason he gave for canceling the program is that he was given legal advice that it’s illegal. Well, says the judge, I say the advice the president was given is wrong. My legal opinion is that DACA is legal, and therefore the reason Trump gave for canceling it is invalid. Therefore, since he neither wants to end it nor had to end it, ending it anyway is arbitrary and capricious, and he can’t do things that are A&C.

    This has all the structure of a logical argument, but none of the substance. It’s as if the judge has seen logical arguments, studied them carefully, and is trying to copy them, but has never actually made one before and doesn’t know how to do it.

      Mac45 in reply to Milhouse. | January 19, 2018 at 12:21 pm

      This is indeed the judge’s reasoning behind his ruling. BUT, it is,as you noted, completely logically deficient. His whole argument rests on the fact that Trump is an incompetent boob who is undertaking a legal course of action based upon legal advice with which the judge does not agree. While laudable, this is legally deficient to the point of being laughable. A federal judge is neither the President of the United States nor is he a dictator wielding absolute power. He has no authority to override the legal authority of the President of the United States. The most glaring weakness of the judges logic chain is Trump acted upon inaccurate advice. If this is the sole basis for his decision, then it follows that he could not enjoin the Presidents action, if the Trump reached this decision unilaterally.

      This was a totally bizarre decision crafted solely to allow the judge to “reach” the conclusion that he want to reach and issue the injunction. It was entirely possible for the judge to rule that the action was not enjoinable, as it was well within the Presidents power to do and still suggested that the President reverse himself, based uopn his [the judge’s] opinion that DACA was legal. As it is, the judge, by ruling the President’s actions lawful encroaches onto the territory of the Executive branch without Constitutional or even Congressional authority to do so. Therefor, the President would be well within his rights to simply ignore the injunction and have the matter referred to the SCOTUS.

        Milhouse in reply to Mac45. | January 19, 2018 at 2:21 pm

        It’s simpler than that. He’s not the President’s lawyer. His legal opinion is not binding on the President, who has his own lawyers and is entitled to rely on their advice. In fact what he’s done is effectively to issue an advisory opinion, which is strictly forbidden for the courts.

When the lower courts were established, were they not given charters of their authority? Do those charters extend toward setting national immigration policy?

I would think that the Trump administration could not only just ignore the 9ths ruling, but advertise loudly that that it intends to, that the 9th had no writ to hear the case at all. Let the activists file to stop it – unless they file in the Supreme Court, their filing could be equally ignored.

    Milhouse in reply to ss396. | January 19, 2018 at 8:59 am

    This is utter BS. There are no such limitations on federal courts. You can’t just make them up because it suits you.

    More than that, unless you protested when a district judge in Texas enjoined DAPA and the Extended DACA, you have no moral right to protest now.

    Dave in reply to ss396. | January 19, 2018 at 9:29 am

    The only court established by the constitution is the Supreme Court.

    Mac45 in reply to ss396. | January 19, 2018 at 12:51 pm

    The US Federal Court system was established by act of Congress. District courts are granted original jurisdiction in all cases under 29 US 1331. However, there is a rub.

    Article III Clause 2 grants the SCOTUS original jurisdiction in cases involving ministers and states. And, the Court itself has ruled that the Congress can not limits its area of original jurisdiction. However, it seemingly limits the appellate authority of the Court to cases other than the two areas enumerated above, unless Congress grants it an exception. 28 US 1251 reiterates the original jurisdiction of the Court in the area of ministers and cases involving states, but not exclusive jurisdiction in that area. This is why the current Presidential administration follows the appellate path. However, 29 US 1251 does NOT grant the SCOTUS to hear appeals of cases involving states or ministers. And, I have not been able to find any federal law which authorizes that. If anyone knows of one, please let me know.

Here’s the problem. The Democrats are not negotiating, they are demanding they get everything they want while proposing a fig leaf of border security that has so many caveats that President Trump would never even be able to build the wall.

    Anonamom in reply to Dave. | January 19, 2018 at 9:59 am

    Well, why wouldn’t they? It’s what they do. Then the GOPe caves. They win. You can’t really blame them for pursuing a strategy that has a history of winning.