A frustrated Trump administration is asking the Supreme Court to say by the end of next month if it will hear arguments on whether it can wind down the Deferred Action for Childhood Arrivals program, an Obama-era program that protects young undocumented immigrants who came to the United States as children from deportation.
Such action could mean the court hears oral arguments and issues a decision in the middle of the 2020 presidential election.
As things stand, lower courts have ruled against the administration’s attempts to rescind the program and issued a nationwide injunction that keeps it on the books, and the Supreme Court has not acted upon a longstanding request from the Justice Department to take up the issue.
The justices’ inaction suggests that some of them believe the issue should percolate in the lower courts before Supreme Court review.
“Twenty months ago, DHS determined, in accordance with the views of the Attorney General that DACA, a discretionary policy of immigration non-enforcement, was unlawful, ill-advised, and should be discontinued,” Solicitor General Noel Francisco argued in briefs filed last week after the 4th US Circuit Court of Appeals became the latest court to rule against the program.
In a 2-1 ruling issued earlier this month, the appeals court held that the Trump administration’s decision to rescind the program was “arbitrary and capricious” under federal law in part because the Department of Homeland Security “failed to give a reasoned explanation” for the change in policy.
Francisco said that a nationwide injunction blocking the rescission of the program continues “to impede efforts to enact legislation” that would address “legitimate policy concerns” and that petitions filed in November 2018 with the Supreme Court have not been acted upon.
“The government respectfully submits that further percolation is unnecessary and the time for the Court to act is now,” Francisco wrote.
In a motion to expedite, Francisco told the justices it was “critical” that they act before their summer recess to allow the parties time to file briefs in the matter for arguments next term.
The Supreme Court will consider the motion behind closed doors on Thursday.
Attorney General Bill Barr lamented earlier in the month that “nationwide injunctions have frustrated presidential policy for most of the President’s term with no clear end in sight.”
In a speech before the American Law Institute in Washington, DC, Barr noted that the Supreme Court has not acted on the requests “and they languish on the conference docket”.
“Unless the court acts quickly and decisively, we are unlikely to see a decision before mid 2020 at the earliest – that is, right before the next election,” Barr said.