We previously reported that the Trump administration took the unusual step of trying to get the Supreme Court to hear the case of the San Francisco federal district court order preventing Trump from ending DACA without getting a ruling first from the 9th Circuit.

What made the procedure confounding, is that the administration did not seek a stay from the 9th Circuit and then the Supreme Court, only expedited direct Supreme Court review on the merits. That direct review procedure is rarely granted.  At the same time, the administration filed an appeal in the 9th Circuit.

The San Francisco district court injunction is an abomination.  I wrote of that Order

Another day, another judicial intervention trying to prevent Donald Trump from exercising his lawful Executive Branch powers.

Of course, that’s not the verbiage the court used, but it’s a fair characterization of the San Francisco federal district court decision (full embed at bottom of post)(pdf.) in a lawsuit brought by Janet Napolitano on behalf of the California Regents seeking an injunction against Trump’s plans to end the DACA program.

The essence of the decision is that the stated reasons for ending the program were that the Trump administration considered the DACA program an unconstitutional attempt by Obama to evade the law as passed by Congress. The judge disagreed with the administration as to whether DACA was constitutional or not, and hence found the decision to end the program arbitrary and capricious as applied to people already enrolled….

What’s so outrageous about the decision is that it equates a disagreement as to policy to a lack of policy. There was nothing arbitrary or capricious in the administration taking the policy position that the decision whether to continue DACA should rest with the Congress. It may be a policy choice the Court disagrees with, but it was a policy choice nonetheless, grounded in what even the Court found to be an arguable interpretation of the law. It was was the valid exercise of executive power to reverse the policy decision of the Obama administration because of a different view of executive power….I would expect this decision to result in another stay, if not from the 9th Circuit, then from the Supreme Court.

There is a constitutional crisis in progress, one in which the Judiciary wrestles policy decisions away from the Executive Branch. Elections matter on policy decisions, unless that election is won by Donald Trump.

It’s reflective of Judicial Resistance to Trump, which resulted in a second district court issuing an injunction against ending DACA, Judicial Resistance: Another judge tells Trump he can’t end DACA on March 5.

The administration needed to get this before the Supreme Court, but it chose a bizarre way of doing so, which may have played the politics of it too cute. We covered this strange tactic in Trump admin files for Supreme Court review of DACA case, but does not seek emergency stay:

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.

When the Supreme Court ordered expedited briefing as to whether it would take the case, many people read this as a sign that this might be the exception to the rule against such a procedure. But it’s not to be.

The Supreme Court has declined to hear the case. So we now wait for the 9th Circuit to rule, and can expect a motion there for a stay of the lower court ruling. In its order declining to hear the case now, the Supreme Court commented that it expected the 9th Circuit to decide the case expeditiously:


The petition for a writ of certiorari before judgment is denied without prejudice. It is assumed that the Court of Appeals will proceed expeditiously to decide this case.


It seems likely the Supreme Court will eventually take the case, as reflected in the words “without prejudice” in the denial. But this legal blunder by the administration lawyers delays that day, and certainly now changes the dynamic politically on a DACA deal.

Needless to say, supporters of DACA are painting this as a substantive decision, even though it is not. It’s the result of a strange tactical decision that has backfired. Of course, Trump is likely to lose in the 9th Circuit, so waiting for a 9th Circuit decision (at least on a stay request) likely was futile, but it’s the normal course.

[This post has been updated multiple times.]


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