The Supreme Court on Tuesday took no action on whether it will hear disputes over the Trump administration’s decision to wind down the Obama-era Deferred Action for Childhood Arrivals (DACA) program.
No action from the court may mean protections for some 700,000 young people brought to the country illegally as children may remain in place for several more months. Many viewed this as the last opportunity for the court to review the case this term given the court’s already full calendar. The justices typically don’t agree to hear cases over the summer.
Sam Erman, an associate professor at Southern Cal Gould School of Law, said the longer the justices leave an issue hanging out there, the more likely they are to want to wait until the next term to weigh in. And he said there are good reasons to want to wait on DACA.
“If DACA is the subject of political negotiations, it might go away if there’s a deal,” he said. “That would allow them to avoid settling the separation of powers issue. The court has a strong preference for the branches working it out.”
President Trump over the weekend tried to use DACA as a bargaining chip in negotiations to end the partial government shutdown now in its 32nd day.
On Saturday, the president offered a three-year extension for the program in exchange for $5.7 billion to construct a wall along the southern border, but Democrats have refused the deal.
Multiple district courts found the administration’s 2017 decision to wind down the program to be either unlawful or likely unlawful and ordered for it be maintained.
Solicitor General Noel Francisco has asked the Supreme Court to make the final decision on whether the recision is lawful or not.
Francisco’s request, however, was unusual because it asked the justices to take up the issue before the regional appeals courts have weighed in.
He said the lower court decisions were wrong to force the administration to retain a discretionary nonenforcement policy that the Department of Homeland Security and the attorney general concluded was unlawful.
He also argued that the very existence of this litigation and resulting uncertainty would continue to impede efforts to enact legislation addressing the legitimate policy concerns underlying the DACA policy.
The University of California and the states of California, Maine, Maryland and Minnesota were among some of the entities who brought lawsuits challenging the administration’s decision to end DACA.
The justices, however, could still decide to hear the case and add a special sitting for arguments.
“They are supreme,” Erman said. “They can always grab things if they want to.”
For now though, advocates say these undocumented immigrant youth, known as dreamers, can breathe a sigh of relief.
Sanaa Abrar, advocacy director of United We Dream, said in mid-February, the court could announce whether they will take up the case in their next session this fall.
In the meantime, she asked Trump to reopen the government and for Congress to pass permanent protections for immigrants without giving more money to U.S. Immigration and Customs Enforcement and Customs and Border Protection.
“DACA’s protections have provided hundreds of thousands of immigrant youth with peace of mind and safety as well as work and educational opportunities. Shamefully, Trump has done everything he can to rip that apart and is playing a cruel game with the lives of immigrant youth.