The Supreme Court of the United States declined the Trump Administration’s request to review Department of Homeland Security v. Regents of the University of California, denying the petition for certiorari “without prejudice.”  This makes the administration’s March 5, 2018, deadline for the Department of Homeland Security (DHS) to shut down the Deferred Action for Childhood Arrivals (DACA)  program legally meaningless.

DACA impacts undocumented immigrants who came to the US as children, providing a renewable two-year window that allows a work permit and relief from possible deportation.

There were two issues in the case:  whether the acting DHS Secretary’s policy to wind down the DACA program was judicially renewable, and whether the policy was lawful. The Supreme Court declined to hear the case, indicating in their orders that: “It is assumed that the Court of Appeals will proceed expeditiously to decide this case.” The fact that the appeal was denied without prejudice, doesn’t necessarily end the appeals process on this issue.

The denial of certiorari was expected, as the Trump Administration had taken some unusual steps to attempt to get this case in front of the Supreme Court before it had wound its way through the legal process in an attempt to resolve the issue quickly.  The Supreme Court has stepped in to hear cases before they go through the lower courts, but only in cases that pose a nationwide emergency--previous examples include resolving strikes in essential industries.

Echoing the above view, Justice Department spokesperson, Devin O’Malley said, "While we were hopeful for a different outcome, the Supreme Court very rarely grants certiorari before judgment, though in our view, it was warranted. We will continue to defend DHS's lawful authority to wind down DACA in an orderly manner."

The Trump White House was dismayed at the court’s decision, spokesperson Raj Shah says, "The DACA program -- which provides work permits and myriad government benefits to illegal immigrants en masse -- is clearly unlawful. The district judge's decision to unilaterally re-impose a program that Congress had explicitly and repeatedly rejected is a usurpation of legislative authority.”  There have been no tweets yet from the President, but it’s probably just a matter of time.

The case was originally heard by a federal court in San Francisco.  In January, Judge William Alsup ruled in favor of the University of California to keep the DACA program in place,  indicating the Department of Justice had erroneously concluded the program was without proper legal standing when it was put in place by the Obama Administration.  Alsup also indicated that "our country has a strong interest in the uniform application of immigration law and policy” when handing down the injunction.

The Department of Justice has indicated it will continue to press the matter before the Ninth Circuit court of appeals, but it took the step of asking the Supreme Court to hear the case before the lower court could weigh in.  Additionally, the Trump Administration did so without asking the court to block the lower court’s order, which would’ve allowed DHS to shut down the DACA program on March 5th as previously planned; however, such an approach would’ve also created more confusion and frustrated the plan of winding down the program smoothly.  

Now it’s up to the Ninth Circuit Court of Appeals to decide the future for the roughly 700,000 DACA recipients.  However, if Congress is able to legislate a solution for the Dreamers, the court case will be rendered moot.  The Supreme Court’s decision to effectively stay out of the DACA debate is not a pronouncement on the merits of the program or a judgment on the Administration’s attempts to end it.  

The National Law Review’s Immigration page has updates on immigration news and legal analysis.