The Supreme Court will meet behind closed doors Friday to decide whether to take up a lower court opinion that temporarily blocked President Donald Trump’s effort to end the Deferred Action for Childhood Arrivals immigration program.
The Justice Department is taking the rare step of asking the Supreme Court to review the opinion – issued by a San Francisco-based judge – even before a federal appeals court has had a chance to weigh in.
Under normal circumstances, the Supreme Court disfavors parties from bypassing lower court proceedings and asking for direct review.
“The court hasn’t granted cert before judgment since 2004, and it hasn’t done so without a circuit-level ruling on the question presented since 1988, ” said professor Stephen Vladeck of the University of Texas School of Law, a CNN contributor.
At issue is a ruling by federal District Judge William Alsup of the US District Court for the Northern District of California, who blocked the plan to end DACA and held that the Trump administration must resume accepting DACA renewal applications.
The issue before the court was not the legality of the program, but how the Department of Justice went about terminating it. Challengers argue that the rescission was “arbitrary and capricious” in violation of the Administrative Procedure Act.
After Alsup’s ruling, Trump made clear his disdain for the 9th US Circuit Court of Appeals, the federal appeals court that has jurisdiction over Alsup’s court. The President tweeted, “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.”
The federal appeals court based in San Francisco has ruled against various versions of Trump’s travel ban and is considered a more liberal court.
The fate of DACA and its roughly 700,000 participants is the subject of heated negotiations in Washington, where Trump, congressional Republicans and Democrats are searching for a way to allow the young undocumented immigrants to stay in the country while also addressing border security concerns.
In his 49-page ruling, Alsup said “plaintiffs have shown that they are likely to succeed on the merits of their claim that the rescission was arbitrary and capricious” and must be set aside under the federal Administrative Procedure Act.
The judge said a nationwide injunction was “appropriate” because “our country has a strong interest in the uniform application of immigration law and policy.”
“Plaintiffs have established injury that reaches beyond the geographical bounds of the Northern District of California. The problem affects every state and territory of the United States,” he wrote.
Citing Alsup’s order, the government resumed accepting requests to renew grants of deferred deportation action under the program.
Earlier this week, another federal judge in a separate change also temporarily blocked the termination of the program for renewals.
In court papers, Solicitor General Noel Francisco called Alsup’s nationwide injunction “unprecedented.” He said the ruling keeps in place a “policy that no one contends is required by federal law and that DHS has determined is, in fact, unlawful and should be discontinued.”